Great Lakes Coal & Dock Co. v. Seither Transit Co.

• Decision Date: 12 January 1915
• Docket Number: 4159.
• Citation: 220 F. 28
• Parties: GREAT LAKES COAL & DOCK CO. v. SEITHER TRANSIT CO.
• Court: U.S. Court of Appeals — Eighth Circuit

220 F. 28

GREAT LAKES COAL & DOCK CO. v. SEITHER TRANSIT CO.

No. 4159.

United States Court of Appeals, Eighth Circuit.

January 12, 1915

H. A Carmichael, of Duluth, Minn. (Washburn, Bailey & Mitchell and A. C. Gillette, all of Duluth, Minn., on the brief), for appellant.

H. R Spencer, of Duluth, Minn. (Holding, Masten, Duncan & Leckie of Cleveland, Ohio, on the brief), for appellee.

Before HOOK and CARLAND, Circuit Judges, and REED, District Judge.

REED District Judge.

The Seither Transit Company, a corporation duly enrolled and licensed by the United States for the carriage of freight upon the Great Lakes and their connecting waters in the United States, sued the Great Lakes Coal & Dock Company in admiralty to recover a balance of some $2,450, with interest alleged to be due it upon a contract for the carriage of a cargo of coal weighing 6,108 tons and 700 pounds, from the port of Toledo, Ohio, to Superior, Wis., at the rate of 70 cents per ton. The libel alleges that the cargo was consigned to the Great Lakes Coal & Dock Company, and that it is liable to the Transit Company for the freight thereon at 70 cents per ton, of which it has paid only $1,832.40. It also alleges a special agreement of the defendant to pay to the Transit Company the 70-cent rate; also a general custom, known to the defendant, for receivers of cargoes of coal upon the Great Lakes to pay the freight charges thereon.

The defendant admits the delivery of the cargo at its dock in Superior, but claims that it received the same only as agent of the White Oak Coal Company, to whom it was consigned in care of the defendant; that it paid the freight thereon, amounting to $1,832.40, at the request of and as agent only of said White Oak Coal Company, and not otherwise, which amount that company repaid to it; and denies all other articles of the libel. The hearing resulted in a decree for the Transit Company for the amount claimed, and the defendant appeals.

The testimony shows without substantial dispute, that the appellant, which will be called the defendant, a Minnesota corporation, was in December, 1912, the owner of a dock upon Lake Superior, located at Superior, Wis., and there engaged in dealing in coal upon its own account and receiving consignments of coal from vessels navigating the Great Lakes for itself and others. About November 20, 1912, Mr. Becker, the manager of the boats of the Transit Company, made a verbal agreement with the L. C. Ayers Coal Company at Toledo, Ohio, as agent for the White Oak Coal Company, a corporation engaged in mining and shipping coal, for the shipment of a cargo of coal for the White Oak Coal Company from Toledo to Superior, Wis., in the steamer Grammer, a boat of the Transit Company, at 30 cents per ton. It was then contemplated that the cargo would be shipped before midnight November 30th, when insurance upon vessels navigating the Great Lakes would expire; and it was agreed that if the Transit Company paid additional insurance upon the vessel the Ayers Company would pay it. The boat was to be loaded as soon as it arrived at Toledo. It did arrive at that port about 6 o'clock in the afternoon of November 29th, but it was not loaded in time for the boat to clear for Superior until about noon of December 1st, for whose fault does not appear. When the boat was loaded a memorandum, made by the Railroad Company which brought the coal to the dock at Toledo, was delivered to the ship, reading as follows:

'Form 167.

'No. 634. O.C. 109.

Toledo, O., 12-- 1, 1912.

'Shipped in good order by W.O.C. Co., for account and risk of whom it may concern, on board the Grammer, whereof . . . is master, now lying in the port of Toledo, Ohio, and bound for Superior, the following articles, to be delivered in like good order at the port of destination (the dangers of navigation, fire, collisions, and breakage of canals only excepted) unto the consignee named in the margin or to . . . assigns.

'In witness whereof, the master of said vessel hath affirmed . . . bills of lading of this tenor and date, one of which accomplished, the other to stand void.

'White Oak Coal Co.

% Grt. Lakes C. & D. Co.

'Superior, Wis.

6108 tons 700 1bs.

'Cargo Recd.

'Great Lakes Coal & Dock Co.

'W. Somershield, Supt.

'Other coal in hatches 1-3-8-10-12.

'V. H. Palmer.'

Who V. H. Palmer is does not appear. This memorandum, though not signed by either the C. L. Ayers Coal Company or the master of the vessel, was accepted by the master as a shipping bill of the coal. The master of the ship (Captain Burns) recognized the receipt thereon as the receipt given him for the cargo upon its delivery at the dock of the defendant company in Superior. After the boat cleared for Superior, another writing was prepared in the office of the C. L. Ayers Coal Company, of Toledo, reading as follows:

'The C. L. Ayers Coal Company,

'Coal and Coke.

'Cleveland, Ohio.

'No. 4.

Toledo, Ohio, Dec. 1st, 1912.

'Shipped in good order and condition by the C. L. Ayers Coal Company, as agents and forwarders, for account and at the risk of whom it may concern, on board the str. Grammer whereof . . . is master, bound from this port for Superior, Wis., the following coal as here marked and described, to be delivered in like good order and condition as addressed on the margin, or to his or their assigns or consignees, upon paying the freight and charges as noted below (dangers of navigation, fire, and collision excepted). It is also agreed that the shipper shall be held blameless for any delay in discharging cargo.

'Consignee and Destination

Description. . . .

'White Oak Coal Co.,

'Superior, Wisconsin,

'% Great Lakes Coal & Dock Co.

6,108 tons 700 1bs. 'Freight 70 cents per ton, free in and free out to vessel. '$4,275.85 '(Signed) The C. L. Ayers Coal Co.'

This bill was prepared in the office of the C. L. Ayers Company at Toledo some two or three days after the Grammer cleared that port for Superior. A clerk in that office testified:

'That he had no recollection of handling this bill, and could not say that it or a copy thereof was mailed to the defendant, but that he knew of no reason why a copy should not have been mailed to it, as in other cases.'

The Transit Company paid additional insurance upon the boat equal to about 40 cents a ton upon the coal, and this amount by agreement with the Ayers Company was added to the 30-cent rate agreed upon, and the rate of freight at 70 cents per ton was noted upon this bill after the Grammer left Toledo for Superior. No rate was specified upon the first bill, upon which the defendant receipted for the coal, and neither that bill nor this bill of lading, so-called, was signed by the master or owner of the vessel.

The Grammer arrived at Superior about December 5th, and the cargo was delivered at the dock of the defendant, and its superintendent made the receipt shown upon the shipping bill first above mentioned. Nothing was then said about the freight by the master to the superintendent. The master testified as follows:

'Q. What did you do in regard to your freight?

'A. Why, I got a telegram from Mr. Becker saying for me to collect freight at 70 cents per ton and send him check for that amount. I tried to do so, but the superintendent said it was all right; we would get our freight; it would come from St. Paul. Nothing was said about the 70-cent rate at the time of the arriving; it might have been after we started to unload two or three hours; but before we were unloaded the matter of the 70-cent rate was up.

'Q. And he (the superintendent) agreed on behalf of his people to pay it, and said that the check would come from St. Paul?'

(Objected to as incompetent and no proper foundation laid. Objection overruled at the hearing.)

'A. Yes; said the check would come, and that it would be all right. I had carried coal in the Grammer before to the Great Lakes Coal & Dock Company under Mr. Becker's management; but I had not on those occasions taken up the matter of freight with the defendant.'

Mr. Becker, the manager of the boat, was recalled, and testified that the Great Lakes Coal & Dock Company paid the freight on previous occasions.

'Q. And they paid you the freight on this cargo?

'A. Yes; part of it; whatever has been paid they paid. These previous cargoes were shipped by Mr. Ayers and consigned to the Great Lakes Coal & Dock Company. This cargo was consigned to the White Oak Coal Company, 'care of Great Lakes Coal & Dock Company."

The president, who was also manager of the defendant company testified that about November 20, 1912, he was informed that the White Oak Coal Company was about to ship the defendant a cargo of coal from Toledo upon which the freight was to be 30 cents per ton; that defendant was requested by that company to pay that amount of freight upon receipt of the cargo; that shortly after its receipt the defendant paid the Transit Company 30 cents per ton upon the shipment, amounting to $1,832.40, which amount the White Oak Coal Company repaid to it; that if the defendant had paid more than that upon the cargo, the White Oak Coal Company would not have reimbursed it for the payment in excess of 30 cents per ton; that the C. L. Ayers Company was not the agent of the defendant for the shipment of this coal; that in receiving the cargo the defendant acted only for the White Oak Coal Company, with whom it had arrangements for the receipt and storage of coal consigned to it in care of the defendant at an agreed compensation. He also testified that cargoes of coal consigned to the defendant during the season of 1912, upon which it paid the freight for itself, belonged to the defendant; that cargoes consigned to the White Oak Coal Company or other...