Orr & Laubenheimer Co. v. The Nicaragua

TOULMIN, District Judge. On due consideration of the evidence and the law applicable thereto, I have reached the following conclusions: 3. That the charter party, on which this suit is founded, was not a demise of the vessel. By its terms the general owner did not part with the possession, command, and navigation of the vessel. [726] The language used shows no intent to transfer such possession, command, and control. The contract was for the use of the vessel by the charterers for a specified period of time. Reed v. U. S., 11 Wall. 591; U. S. v. Shea, 152 U. S. 178, 14 Sup. Ct. 519; Leary v. U. S., 14 Wall. 607; Donahoe v. Kettell, Fed. Cas. No. 3,980; Drinkwater v. The Spartan, Fed. Cas. No. 4,085; Iron Co. v. Huntley, 3 Asp. 501. 2. That the captain was the agent of the owner of the vessel, whose business, it was to get suitable papers and proper entrance permits to the ports within the charter limits, and that any error or default of the master in that respect is chargeable upon the owner. 3. That in August, 1894, there was a regulation of the Mobile quarantine board, in force in the port of Mobile, which required passengers from Bluefields to have a health certificate or entrance permit from the quarantine physician at Bluefields, in default of which any vessel bringing such passengers would be detained at the quarantine station. 4. That the captain of the Nicaragua had knowledge of such regulation, and with such knowledge brought the passenger, Mc-Cafferty, on his vessel from Bluefields to Mobile without the required certificate or permit. 5. That John A. Petersen was the agent of the libelants at Blue-fields, with authority to receive the fare or passage money from passengers coming to Mobile on the steamer Nicaragua, and other steamers chartered and operated by the libelants in the same trade, and perhaps with authority to order or direct the captains to bring passengers. That in this instance he did not order or direct the captain of the Nicaragua to bring McCafferty as a passenger. 6. McCafferty testifies that he paid the money for his passage to Petersen, and that Petersen promised to make all necessary arrangements for his passage, and sent him aboard of the Nicaragua. Petersen denies this. The weight of evidence tends to support Petersen, at least on the issues as to the payment of the passage money to him, and as to sending him aboard of the vessel; and it is clear that Petersen did not make the necessary arrangements for McCafferty’s passage to Mobile, whatever his promises or statements on that subject may have been. McCafferty testifies that, subsequent to Petersen’s promise to make the necessary arrangements for his passage on the Nicaragua, he met Capt. Wiltbank, and in speaking to him about his passage said to him, “How about quarantine?” Wiltbank replied, “Petersen and myself can fix that.” It appears from the evidence that they did not fix it, and that the captain of the Nicaragua knew this when he took . McCafferty as a passenger. 7. The master of a vessel may deviate, by going out of his course, or by delaying, in order to assist or save the lives on board another vessel in distress, or- otherwise in peril from shipwreck. Not only does the law of the land and humanity demand this, but the charter party in this case provides for it. The respondent invokes this provision of the charter party, and also the principles of law [727] and humanity referred to as a justification for bringing McCafferty from BÍuefields to Mobile without the quarantine physician’s certificate or permit, and insists that this is a complete answer to the libelants’ claim for the damages alleged to have been occasioned by reason of the vessel’s delay at the quarantine station. McGafferty was not shipwrecked. He was not on board another vessel in distress. The deviation, if it be a deviation, was not to assist or save Ms life. He says that he went on board the Nicaragua “as the representative of the American residents of BIuefields; that they proposed to Mm to return to the United States and champion their cause there; and that he reluctantly agreed to do so.” It was on this mission, then, that he desired and took passage on the Nicaragua, and not to save his life. It does not satisfactorily appear that Ms life was in danger. He was told that some person had said to one of his Mends that he had better “look out, or he will get. himself into a hole in the ground,” and it appears that there were some threats against him by personal enemies, and it also appears that some American citizens, resident there, had been threatened with arrest and deportation, and McOalferty may have be.en one of the number thus threatened; but, so far as the evidence shows, the idea that he desired and sought passage on the Nicaragua to the United States to save his life arose after he was aboard the vessel, and when it appeared that he would not gel the certificate or permit from the quarantine physician, and it was doubtful whether the captain of the vessel would take him without such permit. Then it was that appeals were made in his behalf, and the captain yielded and decided to take him. In the ordinary course of the voyage a deviation by the vessel to save life at sea is justifiable; but the particular circumstances of this case do not present such a case of deviation. The Wells City, 10 C. C. A. 123, 61 Fed. 857; Carv. Carr. by Sea, § 292. 8. “One of the fundamental conditions of the contract was the obligation of the ship owner to be 'diligent in carrying the goods on the agreed voyage, and to carry them directly without any unnecessary deviation.” The Wells City, supra. This obligation must be made good, unless prevented by the act of Grod, the law, or by the libelants. The B. F. Bruce, 50 Fed. 123. 9. That the cargo of the Nicaragua was of a perishable nature, and that the master knew, or had reason to know, that it must necessarily suffer some decay or deterioration from delay in its transportation. 10. That the respondent has failed to satisfy the court that the delay here complained of was caused by the act of Grod, the law, or by the libelants. That the delay was caused by the act of Hod is not claimed, and that it was caused by law, or by the libelants or their agents, cannot be maintained on the particular facts of the ease. The vessel must therefore make compensation for the loss inflicted on the cargo by the detention and delay complained of. This being unknown to the court, a reference must be had to ascertain it. In the Shadwan Case, 49 Fed. 379, to which the court’s [728] attention was particularly called by tbe respondent, tbe whole trouble grew primarily out of tbe charterer’s diversion of tbe ship from tbe charter limits. He by a subcbarter provided that tbe ship should go to a port outside of tbe charter limits. Tbe court said: “In undertaking to send the ship to ports outside the charter limits, it was the charterer’s business, not the owners’ business, to get suitable papers, and the persons employed in doing that business were the charterer’s agents, whether the master or other person. In diverting the ship to ports not allowed by the charter, the charterer took the risk of securing to the ship the proper entrance permits, and is not entitled to charge any error of the master in that respect, if there was any, upon the owners. * * * The owners were under no duty to obtain papers for Progresso [the port outside the charter limits], since they never authorized the ship to go there; and the master’s defaults, if any, in dealing with the charterer in that regard, did not become the defaults of the owners.” —Which clearly implies that if tbe vessel was operating and entering ports witbin tbe charter limits, .it was tbe owners’ business to get suitable papers or proper entrance permits, and that any error or default of .the master in that respect would be chargeable upon tbe owners. Tbe charter in that case, like tbe one in this, provided that “tbe captain shall be under tbe orders and direction of tbe charterers as regards employment, agency, or other arrangements.” This stipulation bound the master to observe any arrangement about tbe employment of tbe vessel, and any agency selected or authorized for tbe vessel, or other arrangements of that kind by tbe charterers, and if tbe libelants, or their duly-authorized agent, bad made an arrangement for tbe passage of McOafferty on tbe Nicaragua, and bad ordered or directed tbe captain to taire him as a passenger to Mobile, it would have been the duty of tbe captain to observe such arrangement, and to have obeyed tbe orders in respect thereto. Such is not this case, as made by tbe evidence. It shows a case of error on tbe part of tbe master, which, in my opinion, is chargeable upon tbe owner. A decree will be entered for tbe libelants.