Guffey v. Alaska & P.S.S. Co.

• Decision Date: 03 May 1904
• Citation: 130 F. 271
• Parties: GUFFEY v. ALASKA & P.S.S. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

130 F. 271

GUFFEY v. ALASKA & P.S.S. CO.

United States Court of Appeals, Ninth Circuit.

May 3, 1904

Wm Martin and W. A. Keene, for appellant.

Hoyt &amp Haight, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

The Alaska & Pacific Steamship Company, a corporation organized under the laws of the state of Washington, was engaged in operating the steamships Brunswick and Robert Dollar as carriers of freight and passengers between the ports of Seattle, Wash., and Nome, Alaska. It was operating the Robert Dollar under a charter party which was a demise thereof from the owner. On or about October 5, 1900, the libelant placed upon the dock used by the steamship company at Seattle certain freight to be shipped to Nome, and received therefor from the company a bill of lading. By the terms of the bill of lading, the vessel was relieved from liability from certain causes, among which were stranding, disasters or dangers of the sea, unavoidable detention or delay, stress of weather, inability to procure lighterage, or other unavoidable circumstances or casualty. It mentioned no vessel on which the goods were to be shipped, but it recited that they were shipped on board the appellee's vessel 'employed or operated by it, and now lying at the port of Seattle and bound for Nome City * * * to be carried at the option of said company upon said vessel or upon any other of said company's vessels. ' At that time the Robert Dollar, on which it was understood that the shipment would be made, was on her round trip from Seattle to Nome and return and was supposed to be nearly due to return to Seattle. Owing to extremely stormy weather at Nome and at St. Michaels, she was delayed, and did not return to Seattle until October 29 1900; and then, owing to the storms and ice of winter, it was too late to make another trip that season. About November 1, 1900, the Robert Dollar sailed from Seattle to San Francisco, and was delivered to her owner. The appellant's goods were never placed on board the Robert Dollar, or in charge of her master or of any of her officers. They lay upon the dock until October, 1901. The charter party, by its terms, denied to the charterer the power to subject the vessel to liens, required it to pay all charges against her, and stipulated that neither the owner nor the vessel should be liable to any party whatsoever for either delivery or loss or damage to cargo, or for breach of any contract of affreightment or transportation, and that all liability for any and all such matters should be borne by the charterer. It stipulated further that, while the owner should have the right to nominate the captain and chief engineer of the vessel, they and the crew should be the servants and agents of the charterer, and not the servants or agents of the owner. The appellant had no knowledge that the vessel was chartered, but supposed her to belong to the steamship company; nor did any fact come to his notice, so far as the evidence shows, to put him upon inquiry to ascertain whether or not she was chartered. The appellant brought his libel against the ship to subject her to his claim of lien for damages for breach of the contract. The District Court denied the lien on the ground that the goods had never been placed on board the ship, or in the custody of her master, and dismissed the libel.

We think that the court committed no error in holding that under the general maritime law the contract of affreightment created no lien upon the vessel. In 1 Parsons on Shipping & Admiralty, 183, it is said:

'The reception of the goods by the master on board of the ship, or at a wharf or quay near the ship for the purpose of carriage therein, or by any person authorized by the owner or master so to receive them, or seeming to have this authority by the action or assent of the owners or master, binds the ship to the safe carriage and delivery of the goods.'

The delivery in the present case responds to all the requirements of this proposition of the text-writer, except that the goods were not delivered in the presence of or near the ship. The ship at that time, the appellant well knew, was either at Nome or on the high seas. The recital in the bill of lading that the goods were shipped on board the Alaska & Pacific Steamship Company's vessel or vessels employed or operated by them, 'and now lying at the port of Seattle,' does not have the effect to contradict the known facts. The case is not embarrassed by the acquisition of rights under the bill of lading by a bona fide purchaser or transferee. Coupled with the known facts, the bill of lading was, in effect, a receipt by the steamship company of the goods on their wharf, for which freight had been paid, and an obligation to ship them on the Robert Dollar on her next trip. The lien imposed upon a vessel by a contract of affreightment and delivery of the goods to the vessel is stricti juris, and cannot be extended by analogy or by inference. This Kiersage, 2 Curt. 424, Fed.Cas.No. 7,762; Vandewater v. Mills, 19 How. 90, 15 L.Ed. 554. There is no case holding that the owner or agent of a vessel can, by a mere contract of affreightment made at her port while the vessel was on the high seas, thereby subject her to a lien. There are some decisions and dicta of the Supreme Court which indicate the trend of its opinion to the doctrine that the lien is to be restricted to narrow ground, and is to be recognized only in cases of actual delivery to the ship, or to her master or officers. In The Schooner Freeman v. Buckingham, 18 How. 182, 15 L.Ed. 341, Mr. Justice Curtis said:

'Under the maritime law of the United States a vessel is bound to the cargo, and the cargo to the vessel, for the performance of a contract of affreightment; but the law creates no lien on the vessel as a security for the performance of a contract to transport cargo until some lawful contract of affreightment is made, and a cargo shipped under it.'

This was said in a case which involved the validity of bills of lading of property not shipped on the vessel, but designed to be instruments of fraud.

In Vandewater v. Mills, 19 How. 82-90, the court said:

'If the cargo be not placed on board, it is not bound to the vessel, and the vessel cannot be in default for the nondelivery in good order of goods never received on board. Consequently, if the master or owner refuses to perform his contract, or for any other reason the ship does not receive cargo and depart on her voyage according to contract, the charterer has no privilege or maritime lien on the ship for such breach of the contract by the owners, but must resort to his personal action for damages.'

In Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386, 16 L.Ed. 599, it was held that the requirement that there be a delivery to the vessel was complied with in a case where the delivery of bales of cotton was made to a lighterman employed and paid by the master of the vessel, and who was in the act of conveying the bales to the vessel, for the purpose of putting them on board, when an explosion of the boiler threw them into the water; that the delivery of the cotton to the lighterman was a delivery to the master; and that the transportation by the lighter to the vessel was the commencement of the voyage in execution of the contract, the same, in judgment of law, as if the bales had been placed on board of the vessel instead of the lighter. In King v. The Lady Franklin, 8 Wall. 325, 19 L.Ed. 455, the bill of lading had been given by one who was the agent of several vessels, all engaged in transporting goods from Milwaukee to Port Sarnia, but having separate owners, and not connected by any joint undertaking. The bill of lading, by mistake of the agent, acknowledged that certain goods had been shipped on the Lady Franklin, when in fact they had been previously shipped on another vessel, for which a bill of lading had been given accordingly. It was held that the Lady Franklin was not responsible for the loss of the goods by the other vessel. Mr. Justice Davis said:

'In this case the bill of lading acknowledges the receipt of so much flour, and is prima facie evidence of the fact. It is, however, not conclusive on the point, but may be contradicted by oral testimony. The doctrine that the obligation between ship and cargo is mutual and reciprocal, and does not attach until the cargo is on board, or in the custody of the master, has been so often discussed, and so long settled, that it would be useless labor to restate it, or the principles which lie at its foundation.'

These views were reaffirmed in The Keokuk V. Robson, 9 Wall. 517, 19 L.Ed. 744. In The Delaware v. Oregon Iron Co., 14 Wall. 579-602, 20 L.Ed. 779, the court said:

'Bills of lading, when signed by the master, duly executed in the usual course of business, bind the owners of the vessel, if the goods were laden on board, or were actually delivered into the custody of the master; but it is well-settled law that the owners are not liable, if the party to whom the bill of lading was given had no goods, or the goods described in the bill of lading were never put on board. or delivered into the custody of the carrier or his agent.'

In this dictum of the court it is implied that a good delivery may be made not only to the master, but to the carrier or his agent but, in view of other utterances of the court, we have no reason to think the language so used was intended to be understood as saying that a mere delivery to the carrier or his agent, evidenced by a bill of lading, would, in the absence of the vessel, and in the absence of knowledge on the part of her master or officers or such delivery, be a constructive delivery to the ship, such as to bind her to...