534
FEDERAL REPORTER.
THE GENTJLLI 'I).
SIDONIAN. THE SIDONIAN.
(Circuit Court, E. D. New York.
July 9, 1888.)
BmpPINQ-.-LmERTY TO CALL A.T ANY PORT-QUARANTINE PORT-DETENTIONDAMAGE TO FRUIT CARGO-BILL OF LADING-EvIDENCE.
The shipper of a cargo of fruit took from the ship a bill of lading containing permission to the vessel to call at any port or ports. One port, at which the ship was accustomed to call. was known to all parties to be quarantined. Evidence was given tending to show that the agent of the ship gave the shipper to understand that the vessel would not call at the quarantined port. Nev· ertheless the shipper thereafter accepted the bill of lading containing the permission. without objection. Thereafter the ship did so call, and was de· tained in quarantine. and by such delay the shipper's fruit was damaged. Held. that the bill of lading governed, .and that he could not recover in an action brought upon it.
In Admiralty. On appeal from district court. Ulw, Ruebsamen &; Hubbe, for appellant. HiU, Wing &; Shoudy, for appellee.
34 Fed. Rep. 805.
BLATCHFORD, Justice. I concur in the views and conclusions ofthe district-judge in his decision in this case. Let there be a decree dismissing the libel, with costs to the claimants in the district court, taxed at $67.60" and with their costs in this court, to be taxed.
THE WILSON 'I).
LEOCADI.A.. 1 THE LEOCADI.A..
(I>i,frict Court, E · .D. New York.
June 8. 1888.)
SBIPPING-LIAJULITY OF VESSEL FOR TORT-INJURY TO STEVEDORE BY PARTING OF ROPE OF LIBELANT'S PROCUREMENT.
A vessel provided a rope sufficient for hoisting cargo. and libelant. a stevedore, in order to render his work easier. substituted therefor another rope. which afterwards parted, precipitating him Into the hold. Held, on suit brought against the vessel for his damage. that he could not charge the ship with liability for injuries sustainE!d by reason of the breaking of the rope of his own procurement.
In Admiralty.
Action for personal injury.
Wing, Shoudy &; Putnam, for claimant. BENEPICT, J. This is an action to recover for a personal injury of the libelant by falling into the hold of the bark Leocadia. There is little 1 Reported
William C. Reddy, for libelant.
by Edward G. Benedict. Esq., of the New York bar.
THE B. F. HART.
635
dispute in regard to facts. Upon the arrival of the ship the master made contract a stevedore for the discharge of her cargo. It is the usage, under such circumstances, for the ship to provide the fall by which the cargo is raised from the hold of the ship and lowered tothe dock. Accordingly the master of the ship provided for the use of the stevedore {)n this occasion a new hemp rope, which was accepted by the stevedore and used by his men in discharging the cargo. The cargo consisted of salt and cement. After the salt had been discharged by the u'se of the hemp rope, the libelant, a hand employed by the stevedore as hatchman to stand at the hatch and guide the cargo as it rose from the hold through the hatch, applied to the mate for a manila rope. The mate gave him one, which the man rove in place of the hemp rope furnished by the master, in order to lighten his own labor, and this rope he thereupon used in discharging the cement. While the libelant was pushing off from the coaming of the hatch a barrel of cement then being hoisted by this manila rope, the rope parted', whereby the libelant was precipitated into the hold, andsustaiued the injuries sued for. Upon such a state offacts, it is my opinion that there is no liability on the part of the ship. When the master of the ship furnished a proper rope for the discharge of the cargo, his duty was fulfilled; and when the libelant, in order to make his own work easier, substituted in placeof the hemp rope provided by the master the manila rope which he obtained from the mate, he took upon himself the risk of the sufficiency of the rope so substituted by him. There is evidence to the effect that the mate of the ship, when asked by the libelant for a manila rope, furnished this rope with the remark that it would do for the work. There is alBo in the case evidence to show that the libelant procured the rope himself from the second cabin. However this may be, I do not consider that the result would be changed; for I th:;tk that, when the libelant, in order to render his own work easier, himself unrove the rope furnished by the master for the discharge of the cargo, and substituted in place of it a rope unfit for the purpose, he did so at his own risk. He cannot charge the sbipwitb liability for injuries sustained by reason of the b,reaking of the rope of his own procurement. The libel must be dismissed, and with cos1l. 11
THE B. F. MURGillONDO
HART.
v.
THE
B. F.
(DiBtrice Ooure, D. Ma1'glancZ. July B, 1888.) BHtPPING-LUBILITY OF VESSEL FOR TORT-TAXING AND CA.RRYING AwA.Y GUANO.
The libelant, claiming by grant from the republic of Mexico the right to take the guano from the Island of Arenas Cay, alleged that the master of the schooner had willfully, fraudulently. and unlawfully loaded and carried away from the island a cargo of guano, and sold it in Philadelphia. anc:llibeled the schooner for the value of the cargo. Held that, as the only proof adduced
536
showed that the master had, as carrier, under a charter- party with a charterer who claimed a right to take the guano, received it on board at the island. without any knowledge of libelant's claim. and had delivered it to the consignees in Philadelphia, in accordance with his charter-party, without notice or information of any other claimant or ownership, that there was nothing proved upon which a right of action against the schooner could be based. (Syllabu8 by the Court.)
In Ad.miralty. Libel foroarrying away guano. B. P. Moore, for libelant. R. H. Smith, for respondent. MORRIS, J. This is a libel against the schooner B. F. Hart, alleging that the master of the schooner, in February, 1885, put into the island of Arenas Cay, in the Gulf of Mexico, and there lon.ded from the island, and took away, a cargo of guano, and carried it to Philadelphia, and sold it to J. J. Allen's Sons, thereby willfully, fraudulently, and unlawfully depriving the libelant of the value of the guano, amounting to $7,500. The proof on behalf of the libelant tends to show that the republic of Mexico claimed possession, jurisdiction, and control of Arenas Cay, which is a small, uninhabited coral island,about 60 miles from the main-land of Yucatail, and had conceded to the libelant the right to take the guano deposits from it for a period of five years, upon payment customs regulations. It of certain royalties, and compliance with was, as libelant avers, while this concession was in force, and after he had made considerable expenditures on the island to facilitate the shipment of the guano, that the master of the schooner B. F. Hart went. there and carried away the cargo in question. The testimony on behalf of the claimants of the schooner shows that the schooner being at Pensacola, Fla., on the 12th of February, 1885, her master, through a ship, broker at that plac,, chartered his vessel to the National Fertilizer Company of Philadelphia, through its agent, William M. Frost, for a voyage from Arenas Cay to a port north of Hatteras, not east of New York, as ordered at Hampton roads. Thecharter-party was prepared upon the usual printed form; and signed by the part.ies, and stipulated that the charterers guarantied safe anchorage at Arenas Cay, and that they would furnish the vessel a full cargo of guano in bulk, paying for the use of the vessel on proper delivery of cargo at port of discharge fOUf dollars per ton of 2,240 poundsj 20 working days for loading, and dispatch for discharge, and $30 a day demurrage. It was also stipulated that the vessel sbould take down from Pensacola 13 meI,l, some tools, provisions, and lumber, and two boats, and on homeward voyage land the men off at charterers' expense; the charterers furnishing provisions, wood, and water for the men on both passages. The charterers also agreed to a.dvance $300 at Pensacola against freight. This charter-party baving been executed, the master testifies that the schooner cleared from Pensacola for Arenas Cay,taking the cbarterers' agent, Scott, and about a dozen laborers employed by him, and, arriving at the island, received on board a cargo of guano, which he supposed belonged to thp. charterers; that he had no information at aU except what he derived from Scott,
BAKER
CARGO AND MATERIALS OF THE SLOBODNA.
537
and had no information or knowledge that it belonged to any one else; that there was no one living on the island, and that he saw no one there except those whom Scott took there; and that he never had any notice or information that the libelant claimed any interest in the guano, and never heard of him at all until the libel was' filed, in October, 1885; that on the return voyage the schooner sprung a leak, and put into Pensacola in 'distress, where the cargo was discharged, the vessel repaired, and after a delay of over two months the cargo was taken on board again, and carried to Philadelphia. There, upon the vessel's arrival, the cargo, by charterers' order, was delivered to J. J. Allen's Sons. That none of the owners of the schooner had any interest in the cargo except the freight. On the part of the libelants there is no testimony which controverts these statements of the master, and no evidence whatever to affect the oWners of the schooner, or any of them, with any knowledge that the schooner was not engaged in a perfectly honest employment for the sole purpose of earning freight, or to show that they had any interest in the cargo itself. It is apparent, therefore, that this is not a case in which the master, in the course of his employment, has actually' or constructivelyconverted to the use of the vessel or its owners the property of others. All that the master obtained was the freight earned under the charter-party, which was the usual freight for such a voyage. There is no evidence to show that the master had any reason to suppose that his charterers had not a right to take the guano. He received and delivered it openly, and without notice' of any claim asserted by the libelants. Having received the cargo innocently, and having delivered it according to his contract of carriage, without notice that the libelant claimed to be the true owner of it, I cannot see how any right of action has arisen upon which a recovery against the schooner can be based. Hutch. Carr. § 408; Wood's Browne, Carr. § 276. The libel must be dismissed, with costs.
et al.
t1. CARGO AND MATERIAl,S OF THE SLOBODNA.
(District Court, S. D. Florida. May 3, 1887.) SAliVAGE-C014l'ENSATION.
The ship Slobodna, laden with 4,500 bales of cotton, went asbore on the Florida coast. After a few hours the assistance of libelants, all licensed wreckers, was accepted, but after 24 hours' effort to get her off, the anchor dragged, the vessel swung further aground, and soon filled. The vessel was lost, but the cargo nearly all saved ; 335 men and 41 vessels were engaged 2d davs, besides 9 vessels and 69 men, who assisted in saving 861 bales. Most of the cotton was taken from 6 to 1afeet of water, by naked divers without appliances, with more than ordinary labor. Held, it appearing that the salvors did their duty in attempting to save the property, that they are entitled to 25 per cent. on,cotton saved dry, valued at ,46 per bale; 33t per cent. on that partly wet, and valued at $38; 40 per cent. on that saved from less than 6 feet of water; and 50 per cent. on that saved from more than 6 feet of water; and on materials and stores, valued at $2,7[51, 45 per cent.