10 F.2d 950 (2nd Cir. 1926), 141, The Capitaine Faure

Docket Nº:141.
Citation:10 F.2d 950
Party Name:THE CAPITAINE FAURE. COOPER & COOPER, Inc., v. CAMERON et al. HARRISONS & CROSFIELD, Limited, v. SAME.
Case Date:February 01, 1926
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 950

10 F.2d 950 (2nd Cir. 1926)

THE CAPITAINE FAURE. COOPER & COOPER, Inc.,

v.

CAMERON et al. HARRISONS & CROSFIELD, Limited,

v.

SAME.

No. 141.

United States Court of Appeals, Second Circuit.

February 1, 1926

Page 951

Hunt, Hill & Betts, of New York City (Geo. Whitefield Betts, Jr., John W. Crandall, and Arthur H. Haaren, all of New York City, and Leo C. Fennelly, of Brooklyn, N.Y., of counsel), for appellants.

Burlingham, Veeder, Masten & Fearey, of New York City (Roscoe H. Hupper and William J. Dean, both of New York City, of counsel), for the Capitaine Faure and owner.

Page 952

The libelant Cooper & Cooper, Inc., is a corporation organized and existing under the laws of the state of New York, and maintaining an office in the borough of Manhattan in the city of New York; and the libelant Harrisons & Crosfield, Limited, is a corporation organized and existing under the laws of Great Britain, and maintaining an office for the transaction of business in Montreal, in the Dominion of Canada.

The Fulton Steamship Corporation, hereinafter called the Steamship Corporation, is a corporation organized under the laws of the state of Delaware, and it maintains an office in the borough of Manhattan in the city of New York. It is the agent of the charterer of the Capitaine Faure. The charter provided that the charterers should have the option of subletting, giving notice to owners, but that original charterers were always to remain responsible to owners for due performance of the charter.

Thereafter a 'berth agreement' was entered into between Reuben I. Cameron, styling himself 'time-chartered owner' of the ship, and the Fulton Steamship Corporation, called in the agreement the charterers. By this agreement 'the time-chartered owner,' Cameron, placed the ship at the disposal of the charterers, the Fulton Steamship Corporation, 'for a voyage to Far East ports, to load the steamer on berth as advantageously as possible at the best rates and conditions obtainable. ' The agreement provided that:

'The time-chartered owners have to pay all port charges, pilotages, commissions, and so forth, at both loading and discharging ports, including stevedoring, tallying, and all expenses which will accrue in the interest of the cargo and against the steamer; whereas, the charterers undertake to do their best to secure the most profitable rate of freight, to load and ship as quickly as possible, and keep the expenses as low as possible. The time-chartered owners accept liability for proper stowage, dunnage and discharge of steamer, and for any claims on the cargo and for any claims made by and/or against the vessel. * * *

'The time-chartered owners agree to instruct the captain to take all orders from the charterers or the agents just the same as if the charterers were the time-chartered owners.'

The respondent Societe de Navigatione a Vapor France Indo-Chine is a corporation organized and existing under the laws of the republic of France, and maintaining an office in the city of Paris. It is the owner of the steamship Capitaine Faure.

Reuben I. Cameron is an individual doing business in his own name the borough of Manhattan, City of New York, and is the charterer of the steamship Capitaine Faure.

The two libels were filed against the steamship Capitaine Faure in rem and against her owner, Societe de Navigatione a Vapor France Indo-Chine in personam, and also against Reuben I. Cameron, the charterer, and the Fulton Steamship Corporation, which booked the cargo for the voyage under a subcharter agreement with Cameron, the charterer.

The owner of the vessel appeared and filed a claim thereto, and a stipulation for value, under which the ship was released, and answered the libels as claimant and respondent. The other two respondents, Cameron and the Fulton Steamship Corporation, defaulted.

For purposes of trial the suits were consolidated. The court rendered an opinion allowing libelants a recovery against the ship on some of the bills of lading, but not

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on others. The other holdings of the court will appear in the opinion of this court on the appeal.

Before ROGERS, MANTON, and HAND, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above).

These libels were filed in causes of admiralty and maritime jurisdiction. The libelants sued the steamship and the owner thereof, the charterer, and the agent of the charterer. The libelants allege that in the months of April and May, 1923, they shipped and placed on board the steamship, then lying in the port of New York, bound for various ports of Japan and China, certain merchandise in good order and condition, consigned to the order of the respective shippers, under and in pursuance of bills of lading issued for such shipments in a manner hereinafter more fully stated, and that the respondents thereby became bound jointly and severally to transport the said goods from the port of New York to the ports of Japan or China named in the bills of lading, and there to land and deliver them in like good order and condition as shipped. They also allege that the steamship never sailed from the port of New York on the intended voyage, but remained at the wharf where the shipment was loaded, and where the ship was at the time the libels were filed.

The suits are brought to recover for the breach of the contracts of carriage and for the failure to deliver the shipments. They are also brought to recover damages on the ground that the goods are not now in like good order and condition as when received for shipment, but are shot, pilfered, ullaged, damaged, and otherwise injured by the unseaworthiness of the ship and the fault of the vessel and the other respondents in connection with the loading, handling, and stowage, custody and care of the goods.

Under the first libel the amount asked is $138,650, together with interest, costs, and disbursements; and under the second libel the amount demanded is $16,000, together with interest, costs, and disbursements. The total amount involved is $154,650, together with the interest, costs, and disbursements in the suits.

The steamship Capitaine Faure was chartered to Reuben I. Cameron on March 21, 1923, for a period of six months, and it was expressly provided that the charterer should have the option of subletting the vessel. This option Cameron exercised by entering into a berth agreement with the Fulton Steamship Corporation, which placed the steamer at the disposal of the latter for a voyage to Far East ports. The original charter to Cameron provided that payment of hire was to be made in cash in New York, every 30 days in advance, and in default of payment the owners 'have the right of withdrawing steamer from the service of charterers, without noting any protest, and without the interference of any court or any other formality. ' And in the berth agreement, made by Cameron with the Fulton Steamship Corporation, the latter agreed to advance 'one month's charter hire, which amounts to $10,990.80 on date same is payable. ' That amount was paid when it became due, not by Cameron, but by the Fulton Steamship Corporation, in accordance with its agreement with Cameron. That was the only payment to the owners of the ship that the Fulton Steamship Corporation had agreed to assume. The second payment was to be paid by Cameron on May 9, 1923, but he was unable to make the payment at the time it was due, with the result that, although the ship was loaded and ready to sail on May 7, 1923, the owner of the vessel instructed the master that he must not allow the ship to start on her voyage and she never did. Instructions were given to unload her cargo at New York and it was accordingly unloaded.

This cargo had been procured by the Fulton Steamship Corporation and had been loaded on board the vessel pursuant to its orders, and by virtue of the berth agreement it had made with Cameron. The failure of the ship to start on her voyage and carry the goods on board to their destination in Japan and China is the cause of these suits. They are not brought by the owner of the ship, but by the owners of the cargo.

The Fulton Steamship Corporation, after the berth agreement was signed, went into the market and engaged cargo to be forwarded on the Capitaine Faure from New York to Yokohama, Kobe, and Shanghai. It also engaged cargo from New Orleans, and between the ports of New York and New Orleans

Page 954

was booked full, and the Fulton Steamship Corporation had to stop booking.

At New York the Fulton Corporation issued permits to the shippers to put the cargo on the dock, and when the goods were delivered at the dock those in charge issued dock receipts on Fulton Steamship Corporation stationery, which were signed in its name by its receiving clerk. These dock receipts read as follows:

'Fulton Steamship Corporation regular bill of lading in use by it for similar shipments (upon the basis of which freight rates are fixed) shall be issued for said goods to the above-named shipper. Fulton Steamship Corporation shall not become responsible for the goods as carrier until the goods are actually loaded on the steamer; until such loading it shall be liable only for loss or damage occasioned by its fault, such as an ordinary bailee is liable for, but subject also to the conditions, exceptions, and limitations of liability and value contained in said regular bill of lading, with which shippers are understood to have acquainted themselves, and to which they assent.'

The language used in these receipts is relied upon to fix responsibility on the Fulton Steamship Corporation rather than on the ship for its failure to carry. A dock receipt is not a contract of affreightment. It is not necessarily a delivery...

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