"-..",1.
The record shows that Crandall was the first to use type bars and dB vibrating plattln, by whose opwhic\1 the types strike might be 'Toe conibin'atioll or''tbesetwo novel features in . abd,ve quoted', ·. the use:9f..th.,e. ,'!vord "co,(Dpound» conto bars, 'which ·not, plurality of types, but .Qt,.' (elsewhere. descri bed in thus having a duplex motion. I the iwi#'4, "cQ,mpoQnd '" is use<l to indicate th&t'ne' lb&is.bear· more than . which was.charaeteristic of all type bars before l'Iillue llis·1hvention. As thus construed, .the infripgecl: .by deJ'endaJ,lt's, machine. The to ,c()yer a of finger ; oscil)a.ting. tYPEl· bars, and these notf?I1iW4 ThayahdIty of the second claIm for the vibJ;atm.g ..8..l)d ...:.meCI.l.a.,nifJ to.Vl. brate.it i,s.,.not sufficient.ly ..m.. · free from doubt to Were the ma:nO?igpt ?e.. in :view of the short tImtl h8.$ to !"llu t that prelimmary lUJunchon should be ralusell Kivingproper, E1acllfitYi but,: as defendant is only a seliing complainant'may take bisorder against infringement of the third
Om MAl'.'t1tPG 'doh,. '." .,.. .., ...
"·-1'
THE
,.",
IRA. B. ELLEMS. I
"
'i.
i.:,
ccmruu OWn Qf :' !,
.
FIlth OtrC1Ltt. June 6, 1899.)
L
,.
,
,.'
:
'"
·
,i
ill tqr ,a Qatgo ,ot, .a provillion tb,at tb!, cargo ls -to be alonllslde, atld,held at charterer'S rlSX and expense, ,; fa not unreasonable In Itll.811, llt(iaiva.lid a.s eXEIIiI.p.dng the masoorfrom lIabilityforhifj i owD negligenC8j (It .logawas ,brought aloUglIide at 6 In the. evening, and mOO1'8a and, bUh. e. eM,I."t.e.r.er'.a agoen.t. "'.11'.,d. · p!()yes, the.. . . . was. bound..\>n.I.Y.. to el>ercise ordi.. earried during the night. , 48 Fed. Rep. 591, W1iert11' . .' CJuBTBBBB'1
(II'
<
91.'
Q. ""
,AGAmST J.t:ASTBR'S NJ!:G'LIeBNaL
a SAME-LB4VING PORT BBI'ORB. CARGO. FuLL AlOENT. .' . The.
3..
b!llltt Oarried'.away puring the night, theoharterer'l agenl; Claimed that the master was responsible, said he would furnish no more cargo, and left the ship, threatening' to Institute leghl proceedings. Held sufficient to Justify the master in considering that he had all the cargo that would be furnished, and in ...· $e ·. ... · · . . The Teasel being an 'ltIt!erioan vessel, and" the charter party having been signed ,"",pontlJeJi1igh. seast tlle,:cu8tomll officers of .. foreign pon did not, constitute the proper forum In whIch to claim redJ;ess; tly;l threat to lnstit14telegal proceeding. .. , was of Itself sufllclent to justify th'e master in leaVing. .; .. qh'!'rWI P!JIlityfqr timber provide.d. ,that the r was. to. . pay"" , the rate of 16.25 per ton of 4allubic. feet, actual contents dehvered.ln case of allortage ahe receivea on all short of 400 tons, dOWIl to S50 tona, lS.l11?" awl for all 84ME.,...THBE.T 01' LEq.t.PII()I;lEEIlINGS IN FOREIGN PORT, ...
TilE rnA B. ELLE1,JS.,:
985
less than. $50 tons, full rates." Held, that the full cargo stipulated for is 400 tons, and the'wonl " shortage " refers'to a failure to tUrilhIh thil'lHnount. 48 Fed. Rep. 5Ilt.alllrmedJ' ; , ,,;:: ' ,
,Appeal ,from the Circuit Ooun of. the United States for the Eastern District of L,ouisiana. In Admiralty. Libelby the Otis against the s,choonerlra,B. Ellems to require the: dcliveryof-<:aJ:g\l. Cross liLel by the claimants of the scholilner for freight, demurrage, and damages. Decree for claimants. LibeJantappellls. Affirmed. Statement by LOCKE, DjstrictJ udge: . The libelant in the court below, theappell.ant here, by its agent, chartered' on the, 24th, of April, 1890, the schooner Ira B. Ellems, then lying at Coatzocoalcos, Mexico, to proceed to FronteIJI.; ;thence to Tupiipo, to load with mahogany and ceda;rforNew Orleans. The charter party provided that-'- , "The said party of the second part doth engage to provide andrfurnish to the said vessel a ,fuJ,l and complete cargo,Q! U1ahogi\ny and ,ced,i\r logs, under and deck; andheJdl\t stevedores' charges loadmg guamntied not to exceed $1 per ton, Mexlcan; and to pay to the plLlty of first llart. or agi'nt, afteftru'e and faithful delivery of cargo, for 'the use of said vessel during the' voyage aforesflid. at the rate of ($6.25), six:dolla\Jland twenty·five .centll, American currency, per ton of 40 oubic feet, actual contents deli vpred. Incase of..;;& shortage, she receives 011 ;"II tons, ($3 12k) three dllJlars and twelve and one half cen.ts, 4.,meriean, and, for all less. than 350 tOns, fun rates. Chlirterer will necessarymoney for same to be deducted from freight, inc1lldi'ng cost of insurance and interest: "'. '" '" It is also agreed thatthis'chartershallcommencl'l and lay dHyS for loading shall be aJlowedas f\l!lows: "Oodihlt'ncingfrom the tiille the 'captain rl'ports the vessel to charterer dr: ,agen.t,··in writing. as being ready to.recejve cargo, tWj:lnt, (20) running,days, (Sundays onlyexcl'pted, in casestl'vedllres refuse til work,) including time in chaqging in c3seit should' be nt'cessary, and for discharging quick dispatch". And in case vessel be longer dptained. for each and every day's detention by default of said party of the seoond part. or agent, thirty A'liJerican silver dolhlrs demurrage per day, day by day, shall be paidbysaid.party.of ther,econd part, or 8!{ent. to l1aiti party of thllllrst part. or agent. Charterer guaranties stevedore not toe;ceedsixty (60) q{lRts on discharging lnNew Orleans, and vessel, pays no The danger of the spas. ure, 8.11d naVigation of every llature and, kind, always mutuallyex. .. .. .' .' . . cepted." After the execution of the charter party. the vessel proceeded to Tupilco"and went Frontera, entered and cleared for New Orleans thereto and reporting to as ready for cargo, at 6 in the morning of May 4, 1890. From that time cargo was received as it came off in rafts from time to time, until tile.3d Mr.. Scheidell came off t9 tpe vessel,as she was lying from one and one-half to two miles o,ff shore in the open and hadqne more' raft of,logs, which he ,wa,s going to give them that night. Late that afternoon the raft wasbrou!5ht,off, arriving there abqut6 was made faSt of the I,lchoonerby Mr. Scheidell and the men the. shore employed with him. Both Far-
936
J'EDERAL REPORTER,
vol. 50.
well,· the and Murray , the mate, of the schooner, called his attention to the rope and chain, and the way the raft waS made fast. but he said it "was good enough;" that it was all right. That 'night all of the Idgs but two broke away and went adrift. Learning this upon coming off the next morning, Mr. Scheidell insisted that the master of the schoonerw8.s l 'l'espcJ!rsible, and must settle for them. This the master did not admit, when Seheidell threatened to report him to the judge, and havehimsumnionedto court, atthe same time declaring that he was "liable for $1,000 fine, and that the charter party was no good, because it had no stamps on it." The evidence is that he said that he had no more cargo for the vessel, and refused to accept bills of lading, or make any Ifurther settlehlent,but went ashore. The schooner remained there the day until about 5 P. M., then ·left for New Orleans, where she arrived June 16th. Upon his arrivalthe master demanded payment for 12 days' demurrage, which he claimed was due him for detention, which was paid, and then demanded a payment or deposit of the freight, amounting to $2,350, before delivering the cargoj whereupon the charterer filed, his libel'alleging that the schooner had departed from the ofloading withouttaking on board a full cargo, contrary to the terms oftpecharter party, and refused to deliver the cargo then on boalld. UJ>C'n exceptions an amended libel was subsequently filed, alleging that the schooner took into its possession a raft of logs necessary to complete its lading,and by direction of its officers, contrary to the charter, and at its own risk declined. to take the same on board, and so placed and l()cated them that in consequence the logs went adrift and were lost, and praying that the schooner be attached for nondelivery of cargo, and the cargo be discharged and delivered to libelant. This was done Upon the company's giving a bond in the sum of$2,600, when the owners ofthe schootlerfiled their.claim andcroBB libel,setting up the terms of the and alleging that the raft of logs, the loss of which had been complained of, was at the ri&k of the charterer, and lost by fault ofits,agentj that the schooner had received all the cargo that was furnished and provided.by the charterer's agent, and left only after he had refused. to furnish ·any more; and praying payment for the entire fr.eight el;Lrned. and demurrage and damages. Upon these pleadings the casewSs heard, the 'ctoss libel sustained, and judgment given for claimants. W. 8. Benedict, for libelant. O. B. Sansum, for appellees. Before MCCORMICK, Circuit Judge, and LOCKE and BRUCE, District Judges. LoCKE, District Judge, (after stating the facts.) The libelant in this case lias so persistently prosecuted its appeals, this being the third hearing and decree herein, that it would appear that it must have an honest faith in the integrity and justice of its position. sO that we shall express OUr. opiniOns 'and the reasons for them more at l@ngth than the circumstances of the case' would otherwise seein to demand.
THE IRA B. ELLEMS,
937
The first question in this case, and the one upon which all others depend, is, at whose risk was the raft oflogs which was lost? Who must be held responsible for it, and upon whom must the loss fall? A common carrier's or shipowner's right and power to determine by contract his responsibilities in .the care, custody, and control of cargo have al ways been admitted, and such contract sustained, when its provisions, by which such limitation is expressed, are reasonable in themselves, and do not undertake to excuse the carrier for his own negligence. New Jersey Steam Nav. (!,(J. v. Merchants' Bank, 6 How. 344; Railroad Co. v. Lockwood, 17 Wall. 357; York Co. v. Illinois Cent. R. R., 13 Wall. 107. The language of the contract usually determines the conditions and time under which the responsibility of the shipowner is assumed in receiving cargo, and the termination of his risks in discharging. In receiving cargoes by lighter or by raft it is usually declared whether the cargo is to be at the per's or shipowner's risk, while alongside. In this case the language would appear to be plain and distinct, and to determine the risk of the cargo while waiting to be .taken on board. Was the agreement, "cargo to be. delivered alongside,. and held at charterer's risk and expense," unreasonable in itself, or, under the circumstances, could it be claimed to protect the master from the result of his own negligence? Had the master insisted that it should be held alongside an unreasonable length of time, or had he declined to take it on board at the earliest reasollabltl moment, or in any way attempted to shield himself from the results of his own negligence in connection with the property, su<).h fact might be considered in its effect, and such agreement disregarded; but neither of these conditions seems to be the case h·ere. The vessel was rily there. The shipper had permanent business relations, and men presumed to be constantly in his employ; and rafts orlogs, if going adrift and driven ashore, or afloat in the vicinity, could more easily and surely be recovered by one pat:ty than by the other. The charterer appears to have had on board the vessel as many men in his employ, or employed by his and procurement, by whom he could have watched or cared for any cargo alongside, as comprised the crew of the vessel. So the terms of the charter party would not in themselves, as generally applied, seem to be unreasonable. In this particular case the raft did not reach the vessel until about 6 o'clock in the afternoon. It could not be reasonably .asked or expected that the logs should be taken on board that night, and, unless it would be protecting the master against the results of his own negligence, they would be at the risk of the shipper. Upan this .point the evidence. is that the raft was held and treated by shipper's agent as at the risk of his principal. The evidence shows that it was taken alongside and dropped astern by the raftsmen under 8cheidell's superintendence; that there was nothing at all in any remark or suggestion of Farwell, t4e master, or Murray, the mate, in connection with making it fast, that could be construed into assuming the responsibility or care of it, or changing the risk. The circumstances did not seem to demand that ordinary care and diligence would require a watchman. It had been made fast under the personal superintendence of
988
.FEDER1A:L 'UPORTER,
Soheiden., JWh(>'declared it was aUt and" good enough. n No maD had"been'Suggested'byi'hirnjThe night wasstnoothandcalm, and thereiWasrio'tincrease in the condition of things that _Quld"!leerntO care on the parHf the master. We: do not see any: possibleoonstruction by which the schooner should be held responsibleJo1' the loss of theselogsj and \'1pon that point the It is immaterial; in :the deterUlinationofthis case, whether or not 'there was any 1l1ore,cargo1 belonging to libelant there. Scheidell. its agent, to -whom the' master waBdirected by the charter party to look for d*tgo,'1refusedtofurnish anymore, and informed ,him definitely and positively that he had no more for him, and left with the threat to have hiillsummoned that the master was justified in consi<ledng thathe'had all the 04rgo that would be furnished, and that hisl6ad WaS completed,' and 'bad aright to proceed on his voyage. ThetfHsno allegation the pleadings, slightest testimony in the eVidence, that ScHeidell furnished or offered to: fumish, or suggested thepro1'>ll.bility or possibility of his being able to furnish, more cargo for thesubooner; and if it'iEI' true,fI$'c!aimed. that there was more cargo there that c\1uld have been furnighe4, it tnakeshis course more inexcusable, aDd his conduct :more culpable;' The of fl.ny papers at TnpUco, ti'anywere so left, is entlirely immaterial in tbiscase. If the schoune-r laid herself liable to a fine' for leaving without papers ora clearance(tlhder,theMexicail law, 'which does not appear, it has in no way affedte<:hbeinterests .of· the libtilallt. Rev.i'ewibgthe assignment of errors, we do not find that the testimony esta;blisnes theviolatioIf'of the 'charter party by the master in refusing to receive mdr6 cargo. We find 'no evidence at all' showing that he at any tinte refused· to receive cargo, .but that everything shows that he was willing to 'reoeive it; until inforrnedthat libelant's agent had no more for him,,' In the matter of not daring for cargt> moored alongside, we haveatroo.dy considered"iand find that he was under no legal obligation to use more than ·ordim£rycare in 10l'>king out for it, and in not· permitting it togo adrift willfully and knoWingly; and of this there is no evidence. In the'Dllittet l)f or malice in breaking the dogs in cargo, and permitting ilameto g0ii adrift, alldbecome a total loss, we fail to find a scintilld of'6viUenetl SUPPol'tinganysuch charge. In the matter of refusing to ,give ol! grant' prtiper hills lading for cargo then on hand, the instead of showin!f that the master refused to give bills of (shows thtlthe offered to Scheidell to give him oiUi5 tif ladiI1$ fot' all' the <largo received, which Scheidel! positively refused!' to accept. ,In thelchBirge of departing with his vessel to prevent redrassofchat1erer's;agent through the proper customs officers of theporW,wecan iuno waY,accept libelant's view that the customs officers of>ailfbreign port constitute the proper forum by which the agent of a iof,lthe' United States might seek redress of an American vessel fot nouMmpliancewith the terms· ofa charter party signed on the highsElasj:lilld consider,the master frilly justified in leaving with his vessel:tiO aV6idtbe seeking' of such tedress as was' threatened. It is also
.in
he
of
B. ELLEMS...
l (
939
charged that he was not justified in demanding freight money on cargo unknown. O:rdiparily it would be considered unusual to demand paymentof freight before the entire or partial dischargeofa cargo, and before any Qpportunity had been had to iJ;lspect, measure, or determine it; but in this case there had been a controversy, aud it was plainly seen that there wal:! to be a conflict of opinion and a continued demand for the loss .of the cargo, the same as had been made by .the agent at the place of loading. The vessel wa!! lying at the charterer's wharf and mill, and a discharge would be into the custody, control. and possession of the ,9harterer, which might reasonably raise the question of an abandonmentof the freighter's lien, and.we consider the master. nnder the circumstances, was fully justified in the demand for a deposit of freight money. The charterers ha,ye suffered nothing from such demand, as no payment or deposit .has been Ulade. The so-called "official records" of: protest from the port of departure have been examined, and found to con..ain nothing that would in the least affect the conclusions reached upon the question of fact. even were they admitted as evidence. As.'lignment of errors No.3 claims that the dt>cree does not allow. the deductions from freight money found due, of the expenses paid by the charterer, nnd not denied under the charter stipulations. It has been claimed in exhibits filed that these bills of custom house, stevedores', and quarantine expenses had been paid by the libelants. but we have searched in vain for any proof of payment of any such amounts as claimed. The allegations of the payment of such expenses to the amount of $1,074 was chargpd in the fourth arlIcle onhe ,amended libel, and positively denied in claimant's answer. In Exhibit A put in. but in no way $\\'orn.to or made evidence. there appears an item of "Port charges of vessel, pahl, ,$1,074." The only evidence wefilld touching this subject in the record is in the testimony of Mr. Henry Otis: "Question. There is an it.em here of $1,074 in this Exhibit A. What i6 that for? Answer. Well, I cannot teU you entirely. We have the will.putthem in detail," (and the witness. states that he bills, will send them in.) This is the only testimony that ('an be found relating to the payment papers to be Lills appear of any of these items. copied into the record,but they are entirely unsupported by oath, and c.an have no vali,lityaseviuence. Libelants we.re. under no obligation to pay any of these bills. The llgreement of the charter party that charterer would ,advance necessary funds for disbursement of vessel could only have reference to the disbursements at the port of loading, wbere it was to be presnmed the vessp}. would be without (unt1s; and nothillg but positive evidence of payment would allowance of them, and this we do not finel, There, was no allegation. in the libel to that effect; butane claim which w.as put in by libelant, in the nature of damages, was for injury to saws, done in sawing the cargo, on acconnt of a large number of iron ratting dogs found IJroken off in the logs which were claimed to
9:4:0,
FEDERAl. REPORTER,
vol. .50.
have been,maliciously broken by the master of the schooner. The only, evidence this, charge of $500, further than that the broken dogs were found, lind the saWs damaged, is the statement of HarryA.Otis, who states that he was on board the schooner when she reported fOil cargo; that he remained on board "about a week or five days;1l,;and"the captain broke most of the dogs getting the logs aboard, or, rathetwhen:he had them aboard." The testimony of the master and the Idg,ibbokshow that the first raft did not come off until after the vessel had been waiting nine days, thus contradicting the testimony that any logs came on board While he was there. Unquestionably the dogs were found in the logs When they came to be sawed, but how they came to remain there is hot shown, whether from !:lome former rafting,-asit appears that these were refuse logs" and had been lying waiting a market for several yearS,-or whether they were broken necessarily, accidentally, or carelesslYl or in some other manner. Neither the master nor crew had anythirig to do 'with putting the dogs into the logs, and we do not think tile evidence is sufficient to find that the 111aster of the schooner willfullYl or even negligently, so broke them off as to do the damage charged. ,As to the amount of freight due under the charter party, its terms upon which freight must' be determined are: "Theparty ofthe second part is to pay, ,to said party of the first part or agent, after true and faithful delivery of tile cargo. for the use of said vessel c\l1tingthe aforesaid, at the rate of six dollars and twenty-five cents, American currency, per ton of forty cubic feet, actual contents delivered. ,case of shol1age. she receives on all short of 400 tons, down to 350 tons, three and twelve and a half hundredths dollars, (American.) and for all less than 350. tons ..full rates," ." . . . . "
Theterm "shortage," used in charter party, may be used, and is intended to apply to either short loading or short delivery. In the latter the ship pays 8.,stipulatedsum for the amount of cargo received and not delivered; in 'the former, where the charterer has stipulated for a full cargo, and any agreement is made as to what a full cargo is, the charterer .pays and the ship receives, as stipulated damages for noncompliance with the terms of the charter party in not furnishing a full cargo, the amount agreed·upon, stipulated for, or proven in evidence. The sentenceS in this oharter party relating to the amount of freight must be read together. The proVision relating to shortage must be read in connection with the preceding sentence, and so far modify it as it is applicable.' It can only apply to shortage of loading orfurnishing cargo as the'schooner'receives the stipulated sum; and the full cargo, as stipulated f<;>1, is declared to be 400 tons. The charter party was practically for a hlmp SUID up to freight for 400 tons, with additional if any more was actuallycarried,'and, in the absence of fault of the owner, waS not to be for 50 tons. We find less than $6.25 per ton for 350 tons, and with the terms of the charter by the master no default or or,thescrhooner, the agent of claimants; and the amount of freight, as determined1by that contract, $2,343.75, less the stevedores' bill, of Tnpilco, 111ust be considered as due, and the judgment of the court below must be with costs.
THE HARRINGER. THE HARBINGER. l BROWN v. GILL & FISHER, Limited. (District Court, E. D. Pen'1't8'l/Zvania. May 10, 1892.)
941
1.
CHARTER PARTY-CONSTRUCTION-"CONVENIENT SPEED."
A charter party made November 5th with a ship at Charleston, S. C., actively engaged in trading, by which she was required to proceed to Philadelphia with all convenient speed, and to be in readiness for cargo after December 31st, with the privilege to the shippers to cancel tlie charter if she "shall not be ready on or before the 31st of January" following, Is complied with if the ship be in readiness by January 31st, although she undertake another voyage, and puts in for ordinary repairs in the interval. The tender of a' ship to a 'charterer on the Monday following- the Sunday which would be, by the terms of the charter party, the last day for such tender, is in time, in the absence of some controlling custom of the port to the contrary. There is no custom of the port of Philadelphia requiring that, wbere the last day that a sMp could be in readiness falls on Sunday, she should present herself on ,the previous Saturday. A custom is not shown to be established at the port, where the testimony of the witnesses who aver that the custom exists is met by an almost equal number of witnesses with equal facilities of knowing, whO testify to never having heard of such custom.
2.
SA.ME-REA.DINESS FOR CARGO-SUNDAY.
8.
CUSTOM OF PORT.
4. SAME-EvIDENCE.
In Admiralty. Libel by John L. Brown, owner of the steamship Harbinger, against Gill & Fisher, limited, to recover for breach of'contract of charter party. Decree for libelant. Flanders c!c Pugh, for libelant. Richard C. McMurtf'ie, for respondents. BUTLER, District Judge. The respondents chartered the British ship Harbinger on November 5, 1891, to carry a cargo of grain from Philadelphia to Cork, for orders, at the rate of four shillings and nine pence a quarter. The charter contains the provisions usual in such instruments. Fifteen lay days are allowed for loading,-not to commence running before the 1st of January, 1892. It is stipulated that the ship shall proceed "with all convenient speed to Philadelphia," and load; and that if she "shall not be ready to load on or before the 31st" of that month the charterers may refuse her. Shewas at Charleston when chartered, and on the 23d of November, after l'oading a cargo of cotton, started for Bremerhaven, where she arrived about the 1.7th of December. Seven days thereafter, having discharged the cotton, she went to the river Tyne, England, for repairs, (required by usual wear,) reaching there in two days, and remaining ten or twelve, until the work was done. She then stal'ted for Philadelphia, getting here 011 the 31st of January, which was Sunday. She found the customhouse closed, and was unable to secure the usual certificates of readtness for cargo, on that day; but she nevertheless tendered her1 Reported
by Mark Wilks Collet, Esq., of the Philadelphia bar.