Schwarzchild v. National Steamship Co.
| Decision Date | 28 April 1896 |
| Citation | 74 F. 257 |
| Parties | SCHWARZCHILD et al. v. NATIONAL STEAMSHIP CO. |
| Court | U.S. District Court — Southern District of New York |
Butler Notman, Joline & Mynderse, for libellants.
John Chetwood, for respondents.
(1) The previous decrees dismissing the petitions of the above libellants upon their intervention in the salvage suit brought by the owners of the America against the Hekla (62 F 941) cannot be treated as res adjudicata, as respects the above libels, inasmuch as the subject matter of the litigation is not the same. In the former petitions the claim made was a right to participate in a salvage award, in a suit in rem against the Hekla, in which a lien upon that ship was an essential condition. In the present libels the claims are for damages against the owners of the America, as carriers for an alleged violation of their contract of carriage.
(2) The libellants claim to have suffered damage through an unnecessary detention of their cargo of live cattle by the America in rendering a salvage service to the Hekla, by towing the Hekla to New York after she had once begun her towage towards Halifax, the nearest port; and that by this change the America unnecessarily greatly increased the damages to the libellants' cargo incident to a towage to Halifax, which it is claimed is all the salvage service that was reasonably necessary. The respondents justify under the stipulation in the bill of lading, giving the America leave to 'tow and assist vessels in all situations. ' The proper construction of this clause, and the limitations to be put upon it, were considered in the case of The Wells City 57 F. 317, 318, in this court, and on appeal in 10 C.C.A. 123, 61 F. 857, 859. The result of the discussion in the court of appeals, as indicated in the opinion delivered by Wallace, Circuit Judge, is that while such a general privilege in the bill of lading is not to be construed to the extent of its literal scope when that would be inconsistent with the carrier's contract, or defeat its substantial objects, and will not authorize any unnecessary deviation, it does authorize the salving vessel, 'when in the ordinary course of the voyage she falls in with another in distress, to go to her assistance, and to tow her to such place of safety as under the particular circumstances of the case is most reasonably accessible.' 10 C.C.A. 125, 61 F. 859.
In the present case no other reason is disclosed for the deviation of the America from the course first taken for Halifax, to which port she had agreed to tow the Hekla, than that a considerable portion of the cargo of the Hekla was destined for the Chicago Exposition, and that New York was a more convenient port for the direct transportation of the cargo than Halifax, as well as more convenient for the Hekla's passengers. The distance to Halifax at the time when the America, after several hours towage, turned towards New York was about 300 miles; the distance to New York, about 668 miles. Halifax is a good and sufficient port of refuge, to which vessels like the Hekla, under similar circumstances, are frequently towed. It is well furnished with all needed supplies and shipping facilities. Had the America gone to Halifax as at first agreed, on resuming her voyage thence to Deptford, she would have had but little farther distance to travel than from the point at which she undertook the salvage operation. The return to New York was a return to the port of departure, practically abandoning the current voyage and involving an additional distance of about 1336 miles instead of about 350. The return to New York involved an...
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...157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644; City of Para (D. C.) 44 F. 689; The Jeanie, 236 F. 463, 149 C. C. A. 515; Schwarzchild v. National S. S. Co. (D. C.) 74 F. 257; Swift & Co. v. Furness-Withy Co. (D. C.) 87 F. 345; The Prussia (D. C.) 100 F. 484; The Giulio (D. C.) 34 F. 909; The ......
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