THE CAPITAINE FAURE
| Citation | 10 F.2d 950 |
| Decision Date | 01 February 1926 |
| Docket Number | No. 141.,141. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Parties | THE CAPITAINE FAURE. COOPER & COOPER, Inc., v. CAMERON et al. HARRISONS & CROSFIELD, Limited, v. SAME. |
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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.
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 chatterer, 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 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:
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 to the ship. It is true that the shipowner may become liable for the goods before they have been actually placed on board. But to make him responsible it is necessary that the goods should be delivered to him or to his authorized agent. Carver on Carriage by Sea (7th Ed.) § 68. A dock receipt, not issued by one as agent, undoubtedly makes the one issuing it liable for its performance, even though the principal for whose benefit it was in fact made may also be liable. But the shipper is entitled to have a bill of lading, and in the shipments herein involved bills of lading were issued. As between the shipowner and the shipper, the bill of lading is the statement of the contract between them.
Bills of lading are commercial documents upon which the shippers and their indorsees are entitled to rely. The charterers were in certain respects in the position of owners pro hac vice, and could bind the ship in certain matters. But the charter itself did not expressly authorize the charterers to sign bills of lading or to appoint the master. The charter provided that the charterers should take over the ship with its master, officers, and crew. The charter contained the following provision: "Charterers to indemnify owners against all consequences or liabilities arising from captain, officers or agents signing bills of lading or other documents, or otherwise complying with such orders, as well as from any irregularity in steamer's paper or for over-carrying goods."
This indicates to us that, while the master was to have the right to sign bills of lading, the charterers were bound as between themselves and the owners to indemnify the latter against the consequences thereof. To indemnify is to make good a loss. It is to reimburse one for a loss incurred. If the ship was not to be bound by a bill of lading signed by the master, why any necessity for the statement that the charterers were to indemnify the owners against the consequences of his doing so? And these libels are not brought on the dock receipts as mentioned in the pleadings, but on the bills of lading. And it is on the bills of lading that this case must be decided.
The Steamship Corporation issued the permits to put the cargo on the dock, and on its stationery dock receipts were issued by men in charge of the pier, and who were engaged and paid by the charterer of the ship. The bills of lading were issued by the traffic manager of the Steamship Corporation, and the freight was paid to that corporation by checks payable to it, with the exception of two made payable to the master of the vessel, and were by him indorsed to it. Most of the bills of lading were signed by the Steamship Corporation as agents for the master of the ship. It signed no on-board bill of lading, but they were signed "at the dock or at the port of loading, for shipment." After the ship arrived at New York the bills of lading were signed by the master, although a few were even then signed by the Steamship Corporation.
As to the bills of lading the following testimony was given:
The president of the Fulton Steamship Corporation testified as follows as to the bills of lading which were brought to the attention of the master on the arrival of the ship in New York:
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