American Warehouse & Trading Co. v. Davison Lumber Co.

• Decision Date: 16 January 1917
• Docket Number: 134.
• Citation: 240 F. 126
• Parties: AMERICAN WAREHOUSE & TRADING CO. v. DAVISON LUMBER CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

240 F. 126

AMERICAN WAREHOUSE & TRADING CO. v. DAVISON LUMBER CO. et al.

No. 134.

United States Court of Appeals, Second Circuit.

January 16, 1917

Haight Sandford & Smith, and John W. Griffin, all of New York City for appellant American Warehouse & Trading Co.

Avery F. Cushman, of New York City, for appellant Pendleton.

Kelly &amp Hewitt, of New York City, for appellee.

Before COXE, WARD, and HOUGH, Circuit Judges.

WARD Circuit Judge.

The libel was filed against the Davison Lumber Company, the charterer of the schooner Mount Hope, to recover wharfage furnished to her at Hoboken, N.J., between December 24, 1915 and January 23, 1916. The Lumber Company brought in the respondent Winfield S. Pendleton a part owner of the schooner, under the fifty-ninth rule in admiralty (29 S.Ct. xlvi).

The charter party was between the master of the schooner and the Davison Company, and was signed in the master's name by Pendleton Bros., Incorporated, the agents of the schooner. It was for the carrying capacity only, and was not a demise. When signed by Pendleton Bros., Incorporated, it contained the clause, 'vessel to be free of wharfage,' which the Davison Company struck out before signing. As the parties proceeded to perform the charter so altered, it is in our opinion to be treated as if it had never contained the clause in question. The obligation of paying wharfage lay, as usual, upon the vessel and owners.

The Davison Company, without disclosing that it was acting for any one else, applied to the libelant for the berth, agreed upon the charge for wharfage per day, and sent the vessel there. It was therefore clearly responsible to the libelant, even though the liability between it and the owners was primarily on the latter. In this particular we disagree with Judge Smith.

At the time the charter party was executed, the schooner and her master were both at St. Johns, New Brunswick, and the master was quite without authority to make a charter, or to authorize any one else to make a charter, of the vessel in her home port. Pendleton Bros., Incorporated, were, however, the vessel's agents at New York, and the respondent Winfield S. Pendleton, who was vice president and a director of the company, was also managing owner, so that the charter party made by authority of the master must be regarded as having been fully ratified by the agents and managing owner.

Winfield S. Pendleton, in his original answer to the petition under the fifty-ninth rule, claimed that any decree against him must be confined to his share of the vessel. But in the court below his liability, as affected both by the act of March 3, 1851 (Rev. Stat. U.S. Secs. 4283-4285, Comp. St. 1913, Secs. 8021, 8023), as well as by the act of June 26, 1884, was fully considered, and we denied his application to amend his answer in this court by specifically claiming the benefit of the act of 1884, on the ground that the cause was fully before the court and no amendment was necessary.

It is now perfectly well settled that the acts of 1851 and 1884 are to be construed in pari materia. The former conferred exemption as to torts occurring without the privity or knowledge of the owner, and the latter extended this privilege to debts and other liabilities of the owner. It is well established that this exemption does not apply to contracts made personally by or with the consent of a part owner. McPhail v. Williams (D.C.) 41 F. 61; Gokey Co. v. Fort (D.C.) 44 F. 364; Great Lakes Towing Co. v. Mills Transportation Co., 155 F. 11, 83 C.C.A. 607, 22 L.R.A. (N.S.) 769; Richardson v. Harmon, 222 U.S. 96, 32 Sup.Ct. 27, 56 L.Ed. 110. It is not easy to lay down a hard and fast rule as to the latter contracts. Each case must depend upon its own facts. Liabilities which are imputed as matter of law, without any personal intervention of the owner, are certainly within the exemption. We have considered the subject in The Loyal, 204 F. 930, 123 C.C.A. 252, and Benner Line v. Pendleton, 217 F. 497, 133 C.C.A. 349. In the instant case Pendleton, as managing owner and vice president and director of Pendleton Bros., Incorporated, the vessel's agents, must be taken to have had knowledge of the charter party and to have ratified it. Otherwise it would have been invalid, because of the master's want of authority. Therefore Pendleton is as much personally bound as if he had signed the charter party, or directed...