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a MARITIME LAW. | BILL OF LADING—SHORTAGE IN GRAIN CAR- | GO—CARKIER MAY SHOW THAT HE DE- LIVERED ALL HE RECEIVED. District Court of the United States for the | Eastern District of Michigan. | Robert Law ve. John E, Botsford, et al. 1. A vessel discharges her whole duty to her cargo by delivering in good order all that she has received. 2. A custom to deduct from the freight earned the value of any deficiency between the quantity delivered and that stated in the bill of lading, and that the carrier shall not be permitted to show that he delivered all he received, is unreasonable and invalid. 8. The master has no power to bind the vessel by an agreement in the bill of lading that the same shall be conclusive as between the shippers aud carrier as to the quantity of cargo to be delivered to the consignees Brown, J. This is a libel in personam for freight. The facts of the case ure substyntially as fol- lows: In November, 1884, the schooner Lizzie A. Law took on board at Port Huron a cargo of wheat for Buffalo, and received two bills of lading amounting to the sum of 46,047 bushels. The second mate attended to the loading in of the wheat from tbe elevator at Port Huron, and with the weighman of the elevator tallied the separate bins as they went on board the sehooners, and upon completing the lading the master received two bills ot lading, signed by the defendants (but as to that no point is made,) for this amount. The bills of lading, contained the following somewhat extraordinary stipula- tion: “It isagreed between the carriers, and | quirement, shippers and assigns, that in consideration. especially of the freight hereon named, the said carriers, having supervised the weigh- ing of said carge in-board, hereby agree that this bill of lading shall be conclusive as be- tween shippers and assigns, and carriers as to the quantity of cargo to be delivered to ae consignees at the port of destination (except ; when grain is heated or heatsin transit,) and ‘ that they will deliver the full quantity hereon named, er pay for any part of the car- go not delivered at the current market price; the value here of to be deducted from the freight money by consignees, if they shall so elect, and thereupon the carrier shall be su- brogated to the shippers and owners’ rights ---—sof~property and action therefor.?? The address on the ‘Margin was as follows: _ “Order of J. E. & W. F. Botsford, New York. Notify David Dows & Co., care E B. Wilbur & Co., Buffalo, tor transshipment only, identity to be preserved.’? ‘ _’ The vessel proceeded to Buffalo with her cargo, where it was weighed out at the ele yaters, and, as is not unusual, there was an apparent sbortage of some 496 bushels. The elevator at Buffalo, conforming toa usage which is said to be well known, and indeed universal, deducted the value of these 496 bushels from the freight and paid the residue to the master of the vessel, This action is brought to recover the amount of this unpaid balance of freight. That the custom of deducting shortage in this way is, in the absence of any express stipulation, unreasonable and invalid, was settled by the Supreme court of this state in the case of Strong vs. I'he Grand Trunk R. R. Co., (15 Mich. 206) in which the court held that the usage was an entirely one- sided one and that the man could not thus act ag judge and executioner in his own cause. [tis a custom which has repeatedly held void by the courts, and one which has ‘been submitted to by shipmasters because the amount of the shortage is usually too ' small to justify the expense of litigation, At the same time there is no doubt that the verse] is bound to deliver: all that she re- ceived, and that the fact that the cargo when weighed out does not tally as much as it did when it was weighed in, creates a presump- tion that some of it has been lost in transit, ‘and throws upon the vessel the burden of showing that there has been no_ loss. But if the intermediate consignee deducts from the freight the value of the shortage, ‘he does so at the peril of its being recovered back, ifin fact there hus been no loss in ‘transit. In this case it appears very clearly, and thatis one of the points in the case. ‘about which there is practically no dispute, ‘that there was no loss in transit. The Lizzie A. Law delivered all she received. There was evidence tending to show that, at the ‘Lime Kilns, a portion of the cargo was taken from one batch and wheelea over to another hatch merely as a shift, for the purpose of. decreasing the draught of the vessel forward and increasing it aft—in other words, to trim the vessel so that she could get over the Lime Kilns. But there is no evidence that a bushel of the wheat was lost; indeed, answer to it is not a difficult one. It cannot be too well understood that a vessel has discharged her entire duty when she has delivered all she has received. This | is not only the dictate of common sense, but is also the law as Inid down in Shepherd vs. Naylor, 5 Gray 591, and Kelley vs. Bowker, 11 Gray 428. S»>that, while the fact that the vessel did not tally as much at Buffalo as at Port Huron, caxt upon the master the burden of proving that she delivered all that she received, he fully satisfied this re- and hence, I think, is ex- onerated from liability in that particular, In this view it is not necessary for me to solve the question, which in its nature is insoluble, viz : whether the cargo was cor- rectly weighed at Port Huron or at Buffalo. {tis impossible for us to tell at this time where the mistake occurred. There was a mistake in measuring this cargo either in- board or out-board, If the mistake oc- curred at Buffalo, then the vessel is en- titled to her freight upon the whole amount of the bill of liding. If the mistake occurred at Port Huron she is entitled to her freight upon the Buftalo weight. As this is all that is claimed in this case, I am not obliged to determine whether the mis- take was at one point or the other. That the defendants in this case, aside from the stipulation in the bill of lading, are liable for the unpaid freight is beyond ques- tion. They were the consignors of the cargo, and the rule is well settled that the coen- signors may be resorted to, notwithstanding the cargo has been delivered to the con- signee. That the original contract of the vessel is with him, and that the master may waive his remedy against the consignee, and resort tothe consignor, I believe is uniformly held by the authorities. But in this case the defendants were not only the consignors but they were also the consignees, ‘The bill of Jading is addressed to the order of J. E. & W.F. Botsford, New York, care of E. D. Wilbur & ©o., Buffalo. The rule is also well settled that where the cargo is con- signed to the care of another, that person is only the agent of the final consignee, who in this case is the consignor, so that whether the defendants be used as consignors or consignees, the action will lie against them. Hutchinson on Carriers, See. 450. It remains only to consider the eftect of the stipulation in the bill of lading, that the amount stated in the bill shall be conclusive as between the shippers and carriers. This is certainly a very singular stipulation, and was designed vndoutedly to obviate the difficulties which are thrown in the way ot deducting shortage, but we think the It is well settled by the case of Grant ys. Norway, 10 C. B. 665, in England, and the schooner Freman, 18 How, 182, in this country, that the master has ne authority to sign a bill of lading for a cargo not laden en board. Now, this is nothing more nor less than sucha contract. It is an agreement that the amount named in the bill of lading shall be conclusive upon the vessel, though never a bushel may have been laden on board. The master has no authority to make a stipulation of that kind. It is possible that ‘it would be binding between the consignor and the owner of the vessel if he assented to it personally, but the power of the master to bind his ship is limited to contracts made in the usual and ordinary course of business. In the above case of the schooner Freeman, itissaid by the Supreme court that the master has no more an apparent unlimited: authority to sign bills of lading than he has tosign bills of sale of the ship. See also Pollard vs. Vinton, 105 U.S. 7. His authority is to sign bills ot lading of the usual tener and description, consisting of a receipt tor the amount shipped, subject to explanation, and a contract to deliver in the usual form at the port of destination, Such a contract the master has undoutedly the right to sign, but he has no right to sign that contract be- fore the cargois laden on board. In this case there is no question of bona-fide endorse- ment, and I think itis very clear that the stipulation, while it may perhaps bind the master personally, is not obligatory upon the vessel. The libelant is entitled to a decree for the residue of his freight. February 8th, 1886, AUTHORITY OF MANAGING OWNER TO CHARGE PART OWNER FOR OUTFIT—WHEN SHIP IS COMPLETED— ORIGINAL OUTFIT, U.S. District Court, Southern District of New York. The defendant Tupper was to acquire a one-eighth interest in the brig C., which was being built by one Pettis, when the brig was delivered complete according to the contract. Before such delivery, Pettis, who was also managing owner, ordered an outfit for the brig from the libelant, inform. ing him that Tupper was a part owner, and the outfit was thereupon charged to the brig 5 a rec i 2 Mhe Marine Revond. | the evidence is explicit that there was none. |and owners, ‘The outfit was ordered on the | authority of Pettis, and the defendant knew nothing of itat the time It was doubtful on the evidence whether the outfit was in- | cluded in the price paid by Tupper to Pettis for the one-eighth interest. owner until the delivery according to the contract, and previous to such delivery, Pettis had no authority to charge him as part owner. It the outfit was not included in the price paid for the one-eighth interest, it was jue to Pettis alone, not to libelants. For sup- plies fornished subsequent to l'upper’s be- coming an owner, he was responsible to libelants together with the other owners. Brown, J. By the contract under which the de- fendant Tupper was to acquire a one-eighth interest in the brig Cassiopeia, which was building by Captain Pettis, the title would not pass tu him and he would not become a part owner, until the delivery of the brig when completed according to the contract. Andrews vs. Durant 11 N. Y., 35. By necessity implication, since she was to be complete in her bull and spars, this included the launching of the vessel; and she was not launched until September 26, 1874. In July or August previous Captain Pettis came to New York and ordered, through the libelants, the purchase of the necessary outfit for the vessel Including all her stand ing and running rigging, chains, cables, anchors, etc. These were furnished by the libelants and forwarded in August before the launching of the ship. Captain Pettis at the time told the libelants that the de- fendant ‘Tupper was one of the owners, and they charged the price of the outfit, amounting to some $6,000 to the brig and owners. ‘The purchase, however, was made by the captain on his own responsibility, and without the knowledge of Mr. Tupper at the time, although {t was communicated to him afterwards; but he was not informed that they had been procured upon his credit. The libelants afterwards furnished various supplies to the ship until about the year 1878, always dealing with Captain Pettis alone; and the amount gradually increasing until in 7880, when the libel was filed, it amounted to upwards of $15,000, including $6,000 tor the outfit in 1874. Although the libelants were pressing the captain for funds during these several years, the account was suffered to increase, as above stated, without any communication to Mr. Tupper, or any notice that they looked to him for payment of the outfit until April, 1878. The captain, in the meantime, had been acting as managing owner, and the other part owners becoming dissatisfied a transfer of her management was made in 1877, and Captain Pettis at that time ren- dered his accounts, showing about $4,500 surplus to the eredit of the ship. The liability of Mr. Tupper for the outfit must rest upon the authority of Captain Pettis to bind him as his agent, at that time when the outfit was ordered. In my judge- ment no legal authority te charge him as principal at that time existed in Captain Pettis. ‘The vessel was not then launched; the contract by, which he was to acquire the title was not, therefure, coipleted; the title of the one-eighth had not passed to Mr. ‘Tupper; he was not at the time an owner, and as respects him, Captain Pettis was not yet in the position of a managing owner authorized to bind another part owner for necessary supplies or requirement. In ad- dition to that original outfit of the vessel is a part of her, equipment in preparing her for navigation, as much as completing her hull, Captain Pettis does not claim any authority to bind Mr, Tupper other than ag ship’s husband and managing owner, and the evidence shows that he had no ex- press authority. This was not sufficient at the time when the outfit was purchased by his order, and when they were forwarded and delivered by the libelants. aa The dealings ot the parties, moreover, leavs great doubt whether the price agreed on between Mr. Tupper and Captain Pettis was really to include the outfit ornot. From the written contract it would apper that it did not include this outfit. But that. cir. cumstance would. not make,Mr. Tupper liable to the libelant’s for the outfit ordered by Captain Pettis without authority, to bind Mr. Tupper. It is certainly remarkable, if the price of the outfit was not included in the original agreement, that for some four years. afterwards no demand. should ever have been made upon Mr. Tupper for his share of this outfit, in addition to the price of his interest which he had promptly paid to Captain Pettis, nor any notice given him of his liability therefor, by either: the libelants or by Captain Pettis.. If, however, the price of his one-eighth interest did not, as between him and Captain Pettis, include the outfit, his liability therefor was only to Captain Pettis; and it was, therefore, subjgct to the state of the account between them, an important consideration, inasmuch as | | Tupper. Held, that Tupper did not become a part | Captain Pettis is insolvent, and is apparently a large debtor to the ship. Upon these grounds I must exclude the ontfit from the libelant’s claim upon Mr. The sheathing of the vessel in New York, in November 1874, wasa charge apparently within the seope of the power of |Captain Pettis to incur at the joint expense | of the owners. The other items of supplies | furnished, appear to have been in part made within the apparent authority of Captain Pettis, as captain and managing owner. As respects others, including all loans or dratts of Captain Pettis from other ports upon the libelants here, they are of doubtful authority and require a detailed examination, If the parties do not agree, the residue of the accout, excluding the outfir, must be Sent 10 a commissioner, to take such proofs us the party may offer,in addition to that already taken, both as to the amount due, and as to the validity ot its various items, as against absent owners. June 11, 1885. COLLECTIONS OF FREIGHT MONEY | BY MASTER. The question, what constitutes payment under charter party? seems easy to answer. One logical reply at once suggests itself, so simple as to make the question apparently a foolish one. Lt i+, payment of freight money to authorized persons, aceording to terms of charter. ‘he matter is not, however, so easily set at rest, for even when payment appears to have been made and to have been attended with no difficulties, complications arise which jeopardise the safety of the whole money earned by the vessel. This fact has been strongly illustrated by a recent decision upon this question in the New York Supreme court. The case under tria) was a peculiar one, and the facts were such that ship owners and ship masters can learn a lesson from them that will stand them in good stead in making seltlements, Briefly stated the points are as follows. A vessel was chartered for a round voyage from New York to Cadiz and thence to Gloucester, Mass. The freight money on the cargo trom New York to Cadiz was to be paid in Cadiz by the charterers’ agent ‘tin Spanish gold coin at the rate of $4.80 to the pound sterling * * * in cash, without vredit, discount or commission.” After ar- rival at Cadiz the master drew some money in cash, froin the agent of the charterers. ° The balance of the freight money, amount- | ing to over five hundred pounds, was in- ~y cluded in a draft, to be re itted, en account ; Ps of the vessel, to Baring Brothers. This draft i was never paid and the master sought to abtain payment of the amount of it from the charterers, upon the plea that the draft had + been given by their agent, - It appears that the agent had drawn his own draft upen the charterers for the amount, although he had their money in his possession with which to ° pay the freight, while they had no money of his in their hands. The master never saw the draft, but supposed it was a good bill . which would be placed at once to the credit of his vessel by Baring Brothers. Upon the trial of the case before a referee it was de- cided in the master’s favor upon the ground that, as the draft was drawn by the charter- ers agent in Cadiz, upon the charterers themselves, it was not payment of freight, - as the freight should by charter have been paid in gold coin. Upon appeal, however, this decision has been reversed. In the opinion of the court, the master has been derelict of duty in not carrying out the terms of the charter as to payment, in that he did not accept, or demand payment in cash, but instead, requested the agent to remit the balance due to Baring Brothers leaving all the details of that business in the hands of the agent to transact. In fact, by departing from the terms of the charter, he made the charterers’ agent his agent also and must by consequence suffer for his own acts. He lett the freight money in the hands of the agent to do with it as he should direct. The charterers had provided the money for | the freight and had the right tosuppose that the master would draw it in the way agreed upon. That he should choose to do otherwise ané should arrange with the agent to make other disposition of it, was his business and . risk and not theirs. Two judges of the Su- preme court took this view. Onejudge dis- sented from it, The dissenting judge took the view that the master did not consent to ’ take a draft of the agent upon his principals, but he did consent to accept such a draft as. would remit the funds to which he was en- titled, at once to London, and that as sucha draft’ was never presented, the master’s. claim for unpaid freight money holds good. . The dissenting opinion mentioned above. is plausible on its face, but it cannot be de- nied that the master did not exercise suffi- cient care in managing his business, and that through his trust in others, to put it. mildly, a worthless draft was received by him instead of good money. He certainly has a good claim against the perpetrator of this fraud, but scarcely one against the charter- ers. It will be said that the plan pursued. ‘by the master in remitting is one that obtains. extensively in most of the ports of the world, that the master does not generally draw his freight money in gold and take it to some: banker to remit it to another city, and that he had the right to suppose that the agent of bis charters were responsible people whom he could intrust with his business. These views are all good, but they do not remove _ the construction placed upon the ease b the Supreme court. We simply call the attention of the ship master and ship owners” to this case and would impress upon them — the importance of the facts and opinions therein presented.— Maritime Register, It is said that the Argyle is being rebuilt ite: to run to Lake Superior asa passenger