MELLOY tI. LEHIGH & W. COAL CO.
377
he owed no duty to the consignees of the two shipments to make separate delivery, but that, having stipulated in the bills ()flading not to be accountable for weight or number, all he was required to do was to put out all the old tramway rails he had on board, andlet each consignee select his own; and 1 cannot doubt that his indifference in this regard imposed additional responsibility upon the agents for the appellants, and to some extent embarrassed them in discharging their duties. Nevertheless, if they saw fit to undertake to do what it was primarily the master's duty to do,. no legal responsibility for any subsequent loss can be imputed to the master. As stated before, the only question is whether the iron be-longing to the appellants was delivered into their cars. They must show that some part of it was not thus delivered; and this they have not done. The decree of the district court would be more satisfactory if costs had not been allowed to the libelant. In aU other respects it is affirmed. Neither party is awarded costs in this court.
MELLOY
'Ii.
& W.
COAL
Co.
(DiBtriet. Court, 8. D. New York.
December 26, 1888.)
1.
DEMURRAGE-LIABILITY OF FREIGHTER-ACCEPTANCE OF COAL ORDER.
2.SAME....,.P1uvITY OF CONTRACT.
That the respondents' delivery of the order to the master, with the in· tent that it should be acted on, and his action accordingly, imported an im· plied contract with him to load according to the terms of the accepted order. (b)
SAME,-WILLFUL DELA.Y.
(e) That the exemption from liability for or failure to load. did not cover any delay or failure by the respondent's WIllful neglect or fault.
4. SAME-CUSTOM OF PORT:
(d) That the custom·of the shipping point authorized delay by the freighter until all the kinds of coal required could be loaded together.
In Admiralty. Libel for damages in the nature of demurrage·. T. O. Campbell, for libelant. . Biddle &: Ward, for respondents. BROWN, J. The libelant sues to re('over damages in the of de.murrage for the alleged detention of the H. C. Raw and Maggie Hager at Port Johnson, by not loading them in turn. On the 20th of June, 1888, Kurtz, Crook & Co., having purchased coal of the respondents, deliverable at Port Johnson, drew an upon their
FEDEnAL nEPORfER.
at' the New YOl'Koflice, directing them to load the canal-boat H. C. Rew.with "Wilkesbarrecoal;lOO tons broken, and 125 tons egg,,! delivetnbletoBuchanan Brosi,25th St. New,York, North river." On the baok of the order wasil. printed statement that the order was given upon the following conditions: . . "First. .The vessel nainedon' this order shall take her regular turn at the shipping wharf, and shall be governed in all respects by the customs of the shipping point to whlchsheIssent." "Second. No liabilityrordemurrageQr other cause is to be incurred by J. D. Kurtz, CrQOk & Co.,or by tpe ca,rgo, or the consignees thereof, for delayln loading;s,uch delay to be borJt? vessel." . .. . The, order,. being presented ,a,tthe defendant's office at New York, was stampad as usual: . ,1' . "Accepted' subject, to the following conditions: 'The vessel recei ving this order is to conform to the directions of the company's shipping agent at the, point to which she is sent. No liability is to be incurred for delay, or failure in furnishing a load to the vessel." The order was delivered by the respondents' agent to the captain of the Rew, who proceeded to Port Johnson, and filed the order with there, as customary, on the Mr. Martin, the 21st day of June: He was not loaded until the 11th or 12th of July, and claims that, three'lthe,r boats after him were, loaded first, and that he was not loaded "in turn," as provided by the order, and by the custom of that shipping point. Substantially the. same facts are reported , It 1S contended on behalf d,,f tbl'l ,respondents that. qn s:o,ch orders no direct action will lie by themaater ,of the vessel dewned, for lack of privity of contract; the 'foespondents' 'contracts in'such cases, it is said, are solely with the drawers'Qf 'the orders, i. e., the vendees of the coal. The right of a vessel to damages for detention, however, need not rest on express. contract.. The. maritime law makes it the duty oftha freighter, or of goods, wbo undertakes to load or to disoharge the ship, to do so witbreasonable .promptness, and it imfor the from detention arising from bis poses on him ,a negligence 01"tp:ijllstifiable delay comnion law; an action of trespass on the case would lie for this breach of duty. Sprague'v. West, .Adm. 548, 55&rBaeon v. Transportation Co., 8 Fed. Rep. 844; Hawgood v. Tona of Coal, 21 Fed. J{.ep. 681. .' ' The present stronger·. Tbe defendants undertook and expressly agreed witb':I{urtz, Crook & 0(1;' to load this vessel snbject' to the terms of tbe written contract. The contract, as accepted: was delivered by them to the master, with 'the intent'that'he sbould act on it, and go to Port Johnson, and wait his turn for this coal. The nittster did."sb;>:telying'upon this'l'l:Ccepted order. The', order.was :duly filed by the ':ma$ter 'at 'Fart Johnsdn>; and thus, by. the can'tract with the drawer, therellpondents botlnd 4to load the:vesselintum, subjeCt to the otherc'<'>ridHionsas' to oustom. ,While that order was outstanding, and thevessel1Vits in waiting under· it, 'Kurtz, Crook & Co. could notre;.
HELL01;'V. LEHIGH &,W. COAL CO.
quire pt\ler .order for Jhe oreue them f()r t!wif. oligipal.eOQtrl;lc":9,f purcqaE!e,. s!> long as the conditions of the accepted order were fulfilled.. The deli"erYit?f the accepted order to the master, under such circumstances, and with such intent, imported an implied contract with the master that if he would go to Port Johnson and wait his turn, subject to the other conditions also, he should be .h)ade9- With tbe :libelarit's coal. The exception, "no liability for delay or failure to load," does not include a willful, nor, in my opinion, a negligent. disregard of the contract; but only a delay or failure without the respondents' fault, or through the operation of some of the other conditions of the contract. The respondents, therefore, were not on1y'bound under their ordinary maritime duty as freighters, to. load tb,e, vessel without unreasonable delay,-that is, in this case, according to the express contract with the drawer,-but the implied contract created Upon either ground the vessel has a direct'remedy against the freighter; just as she has a direct remedy against any owner of cargo that is bolindto unload her, and who has induced her to submit"to his direction. ; Sprague v. We.ert, aupra;Railroad Northam, 2 Ben. 1; Orawfordv. Mellor, 1 Fed. Rep. 638; Hougev.Woodruff,19Fed. Rep. 136, 137, and cases there cited. The obligation 'to.Joad in turn "under the cl,1stdfu of the shipping point," is shown Ilotto require the shippers to load a part of the coal until they have got the other part of the cargo that the order requires. The Rew was to be loaded partly with broken coal,and partly with egg; both Wilkesbarre coal. She was not entitled, under the custom, to take her place "in turn," until the respondents had both kinds of coal with which to load her at once; and the proof does not show that the Rew could have been loaded at any time with .both kinds of coal. before the other. three boats complained of were loaded. As to the GeorgE! Albertson, claillled to have been loaded ahead,the proof is that her order was filed at the shipping point on the 30th ofJune, prior to the report of the Hager, an4 therefore entitled, apparently, to prior loading. One witness for the libelant says she did not arrive until the Hager. Either the witness' is mistaken, or there was some sharp practice by the other ooat in falsely reporting her arrival, and in filing, her order on the 30th of June, about which there can be no mistake, before she reached Port Johnson. The shipping agent testified. that he had.to rely' upon the orders tiled with bim, and the reports :of arrival. I think he, was entitled to do so, as between different vessels, until notice of irregularity was given him in filing the order before the vessel's arrival, if such was the fact. Without such notice it was not to be expected that he should undertake to verify the reports of arrival made by the captainsof the canal-boats when they :qletheir ord,ers, or ascertain that the boats are actually present. The boats are reported in consideraQle pumbexs, and lie at anchor at a distance, untiUheir turn CQmes. . If the boat previously reported did not actually arrive at that time, no notice of the fact appears to have. been given 1;0 the shipping agent, or any cqmplaint made of her lack of a p:ior right.to lqad.
880
FEDERAL REPORTER.
The libel must be dismissed j but in consideration of the long detention of the vessel, and her apparent right, the dismisSal must be with-
out costa.
MCCORMICK 11.
J ARRET'l'.
(DUtrict Oourt, B. D. Mi88OUri, B. D. January 13, 1889.)
The respondent agreed to tow an unseaworthy barge loaded with ice from Quincy. III.. to St. Louis. Mo., for $200, ou condition that the owner would assume all risks incident to unseaworthiness. The barge having sprung a leak on the voyage, owing to unseaworthiness, and being about to sink, held (1) that in su.ch emergency respondent was bound to take such steps to protect the owner of the barge from loss as ordinary and reasonable prudence would suggest; (2) that for violation of such duty respondent was liable for whatever loss was sustained over and above what would have been sustained, if such reasonable and proper efforts hlld been made, lind that it was libel-' ant's duty to show such difference in the amount of the 10SB.
J.
Under the contract aforesaid, although respondent was not negligent. he cannot recover the full contract price for towage, but only the reasonable value of towlIge to the place where the sinking occurred. (81/Uabu8 by the Oourt.)
SAME.
In Admiralty. Libel for damages. This was a libel in personam, filed to recover the value of a barge and cargo of ice, which was sunk in the Mississippi river, near Clarksville, Mo., while On a voyage from Quincy, Ill., to St. Louis, Mo. Libelant that the. barge in question was carelessly run against an obstruction while being landed at Clarksville, Mo., and in consequence thereof sprung a leak and sunk. Also that after' the barge was partially sunk in shoal water at Clarksville, it was hauled out into the stream, and landed below the town, where the water was deep, and there abandoned t and in consequence therof beca.me a total loss. R. H. Kern, for libelant. Mills &: Flitcrajt, for respondent. THAYER, J.. In this case I announce the following conclusions oflaw and fact, namely: The barge East, at the time it was taken in tow by the steamer Jarrett, to be towed from Quincy, Ill., to St. Louis, Mo., was not in a fit and proper condition to stand the voyage with a load of 420 tons of ice stored wholly 011 deck. In other words, the barge, SQ. laden, was unseaworthy. One end of the barge was unquestionably in a bad condition. The was either or rotten; and the planking about the stem had burst its fastenings. An attempt had been made at .Quincy to repair the defect by nailing pine plank tQ. the stem-post, so as to strengtnen the bow, but the work had been imperfectly done. When the barge reaphed Clarksville, Mo., and was tied up temporarily, the injured stem pointed up stream, and most likely