Bramble v. Culmer

• Decision Date: 02 February 1897
• Docket Number: 186.
• Citation: 78 F. 497
• Parties: BRAMBLE et al. v. CULMER et al.
• Court: U.S. Court of Appeals — Fourth Circuit

78 F. 497

BRAMBLE et al. v. CULMER et al.

No. 186.

United States Court of Appeals, Fourth Circuit.

February 2, 1897

Beverly W. Mister, for appellants.

Robert H. Smith, for appellees.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

BRAWLEY District Judge.

The primary and fundamental question in this case upon which the decision turns is whether, under the agreement between the parties, there was a demise of the ship, or whether it was a contract of affreightment. If the owners parted with the whole possession and control of the ship, and gave to the charterers power and right to do what they pleased with regard to the captain and crew and the management of the ship, such charterers would become pro hac vice the owners and would be responsible for its navigation and all the incidents flowing from that relation. If, on the other hand the agreement between the parties was nothing more than a contract whereby the owners agreed for a fixed sum to send their ship for a cargo to be obtained at such points as the charterers might direct for transportation to its port of destination, and did nothing more to divest themselves of its ownership and control, then the responsibility for its proper navigation rests upon them, and they cannot hold the charterers to account.

The proper determination of the precise relations of the parties is not free from difficulty, owing to the informal nature of the agreement, there being no written charter party. The contract was indefinite and verbal, and so far as we can gather from the testimony, the facts were substantially these: The owners of the William Farren, a small schooner habitually employed in and about the Chesapeake Bay, some time in the spring of 1894, applied to one Schall, in Baltimore, for a charter. Schall was engaged in the shipping of pineapples on joint account with one Culmer, who lived on Eleuthera Island, one of the Bahamas, and was in the habit of sending out a number of vessels every spring, and once before had chartered the Farren for that purpose. Very little was said as to the terms of the charter, but it was understood that the owners were to receive the amount usually paid for schooners of like tonnage, and there is no dispute as to what that was. The owners were told to get ready, and after employing as mate one Fehring, who was somewhat familiar with the West Indies, though he had never before been in the waters where occurred the incidents hereafter related, the master reported to Schall, and, receiving from him a letter to Culmer, set sail, arriving without incident or accident at Tarpum Bay, in Eleuthera Island, where he delivered to Culmer the letter intrusted to him. It appears further from the testimony of Murphy, the master, that out of the gross sum to be paid by the charterers, the owners were to receive 40 per cent., and that the master was to receive 60 per cent., and 'pay the expenses of the hands, wages, and grub bill ' It further appears, though there is no testimony showing any positive agreement on the point at the time that the charter was made, that it was understood that all pilot and port charges incurred in the Bahamas were to be paid by the charterers. After reporting to Culmer, the master was informed that he was to get his cargo of pineapples at Great Harbor, on Long Island, about 180 miles distant, and, taking aboard a pilot, set sail for that point, and while on the way, while off Conception Island, was run upon a reef, and the schooner became a total loss. It is for the loss of the vessel, caused, as alleged, by the incompetency of the pilot, that the libel is filed by the owners against Schall and Culmer, the charterers, the allegation being that the pilot was their agent; that 'the reef was plainly indicated on charts for that part of the Atlantic Ocean'; and that loss of the vessel was solely due to the incompetency, unfitness, and ignorance of the pilot furnished by the charterers.

There are no licensed pilots at Tarpum Bay, or in the waters thereabout, and no laws of compulsory pilotage, and the testimony relating to the taking of the pilot is brief. Murphy, the master, relates that, on the night after his arrival at Tarpum Bay, he was at Culmer's house, and, after some desultory conversation with him, he called out to a man he did not see in the dark, saying: 'Peter, I want you to take the Farren to Great Harbor. You will sail Saturday morning. ' Culmer relates that Murphy asked 'if I intended sending a pilot with him,' and that he told him he would send Peter Allen, and it appears that he was to pay Peter Allen for this service. Peter Allen was a colored man, about 54 years of age, living on Eleuthera Island, who seems to have been engaged sometimes as a seaman in command of small vessels, sometimes as a pilot, and sometimes in cultivating pineapples on shares for Culmer and others. He was not a licensed pilot. He could read a little, but could not write. A great deal of testimony was offered to show his competency as a pilot, and it sufficiently established the fact that he had acted successfully as a pilot in conducting vessels safely through the waters where this untimely mishap befell. The testimony further shows that no great skill was needed at the point where the vessel went on the reef, and that any capable navigator could have sailed her safely there, special skill and local knowledge being required only at and about the entrance to the harbors. In the view we take of the case, it is not necessary that we should determine critically the competency of Peter Allen as a pilot. We are satisfied that he was believed to be competent; that he had frequently been employed in such undertakings, and that he was one of the most competent men available for such service in those islands; that Culmer had frequently intrusted him with the management of his own vessels; and that his previous success left him no room to doubt that he had the skill and knowledge required to pilot the vessel safely from Tarpum Bay to Great Harbor.

Nor is it necessary to consider in detail the circumstances attending the wrecking of the vessel. Whether it was solely due to the carelessness and ignorance of the pilot, which the preponderance of evidence tends to establish, or whether the master and mate contributed to bring it about by their refusal to keep the vessel on the course given to them by the pilot, as his unsupported testimony declares to have been the case, is not material to the determination of the main question, which is this: Was it the duty of the owners or of the charterers to navigate the vessel? If it was the duty of the owners, the taking of the pilot was optional with them, and there being no law of compulsory pilotage in those waters, and the employment of the pilot being their voluntary act, and subsidiary and subservient to their use, they could not relieve themselves of responsibility by turning over the entire control of the vessel to him; and, by so much as he was ignorant and unacquainted with charts and the higher arts of navigation, to that degree did an increased duty of vigilance and care devolve upon the master and mate, who were in possession of charts, which, as their libel states, plainly indicated the reef upon which the vessel was wrecked. In any view of the case, the pilot would be considered as so far the agent of the vessel that whoever is responsible for its navigation would be responsible for his acts or omissions in the line of that duty; and, unless there is some express contract or some proof of facts which warrant implications or understandings at variance with uniform usage, the pilot must be held to be the servant of the owners.

It is the general and unvarying incident of all charter parties that the owners of vessels are charged with the duty of navigating them, and parties must, in reason, be understood to contract with reference to such obligation, unless it is excluded by special contract or necessary implication. It is not contended here that there was any express contract at the time the vessel was chartered in which the charterers undertook to navigate the vessel. The master, mate, and crew were selected by the owners, and paid by them. The charterers undertook to pay a lump sum for the voyage, which sum was divided between the owners and the crew in the proportion before stated. This was but an ordinary contract of affreightment, and, if the schooner had been lost on the way out to Tarpum Bay, there could have been no pretense that the charterers were liable. Did anything occur at Tarpum Bay to alter the original contract? If so, by whom was it done, and by whose authority? The...