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owner officered and manned the vessel. At Shanghai the ship loaded cotton on her own account for Kioto, whence she thereafter proceeded to Yokohama, and delivered in good order the balance of her original cargo. The charter party contained no provision as to shipment of cargo on ship's account, and no authority to proceed to Kioto. Libelant sued to recover the freight collected for cargo transported from Shanghai to Kioto, and also to recover damages for breach of charter. Held, that the ship was answerable to libelant either for the freight from Shanghai to Kioto, or for damages for breach of charter, but not for both, and that a maritime lien against the ship existed in favor of libelant for either amount.

In Admiralty.

Libel for freight collected and for breach of

charter. Decree for libelant.

Foster & Thomson, for libelant.
Convers & Kirlin, for claimants.

BENEDICT, District Judge. The steamship Port Adelaide was chartered by the libelant for a voyage from New York to Aden, Amoy, Shanghai, and Yokohama. By the terms of the charter party, "the whole of said vessel, with the exception of the necessary room for the crew, and storage of provisions, coals, sails, and cables," was chartered to the libelant. The charter party also contained the following clause: "Charterers to have the full reach of vessel's holds, spare bunkers, cabins, &c., the same as if the steamer was loading for owners' benefit." The shipowners officered and manned the vessel, and were to receive "for the use of said vessel during the voyage aforesaid the sum of £4,500." Bills of lading were to be signed by the master, and any difference between the charter money and the freight named in the bills of lading was to be settled before the vessel's departure from New York.

Under this contract the charterer furnished the steamer a full cargo from New York, and, the freight named in the bills of lading being less than the £4,500 named in the charter party by the sum of £453.4.7., the difference was paid by the libelant to the ship's agent before the ship's departure from New York. None of this cargo was shipped the libelant, but by other shippers found by him. It was to be delivered at the ports of Aden, Amoy, Shanghai, and Yokohama, respectively, as per the bills of lading signed by the master; the greater proportion of the cargo being deliverable at Aden, Amoy, and Shanghai. The steamer proceeded to those ports, and there duly delivered the cargo consigned to those ports. From Shanghai the steamer was bound, by the terms of the charter, to proceed direct to Yokohama, and there deliver the remainder of her cargo. Instead of so doing, the master of the steamship, without authority from the charterer, took on board at Shanghai a quantity of cotton to be transported in the steamship upon freight from Shanghai to the port of Kioto,-a port not within the terms of the charter. The freight on this cotton was collected by the ship's agent, and turned over to the shipowners. From Kioto the ship proceeded to Yokohama, and there safely delivered the remainder of the cargo that had been shipped in New York for that port.

This deviation from the voyage described in the charter

FEDERAL REPORTER, vol. 59.

And

caused a delay in reaching Yokohama of some two or three days.
So far as appears, however, none of the consignees of the cargo
delivered in Yokohama made any complaint of the deviation to
Kioto, or any demand upon the charterer by reason thereof.
now the charterer files his libel against the steamship, seeking to
recover the amount of the freight received by the shipowners for the
transportation of the cotton from Shanghai to Kioto, and also
damages for the deviation.

In regard to the claim for the freight earned by the ship in transporting cotton from Shanghai to Kioto, the contention of the claimants is that the charter party should be interpreted to mean that the charterer was to have the right to ship in New York a full cargo for delivery at the ports of Aden, Amoy, Shanghai, and Yokohama, but, when once the full space of the vessel had been occupied by him, the right to furnish further cargo was exhausted; that the shipowners, by virtue of their possession and control of the ship, had the right to the space in the ship left empty by the delivery of the cargo at Aden, Amoy, and Shanghai, and consequently were entitled to transport on the ship's account the cotton transported from Shanghai to Kioto.

To this view of the effect of the charter party, I cannot assent. As I read the charter party, it gave the charterer the right to have the ship perform the voyage from New York to Aden, then to the port of Amoy, then to Shanghai, and then to Yokohama, or to any of them, either full or with sufficient cargo for ballast, shipped by the libelant or his shippers, and not otherwise; and it gave the shipowners no right to take in cargo on the ship's account at any port during the voyage. Shanghai increased the weight of the ship during the rest of the The loading of the ship on ship's account at voyage, and by so much retarded her progress. It might also well

be that a shipment of cargo on the ship's account from Shanghai to Kioto would have an important effect upon the ventures of those merchants who, by agreement with the libelant, shipped goods in New York for Yokohama under a charter which gave the whole ship to the charterer. count should therefore be found plainly set forth in the charter Authority for a shipment of cargo on ship's acparty. No such authority is stated in the charter party, and in my opinion such authority cannot be implied from the fact that the possession and control of the ship remained in the shipowners. The possession and control of the ship by the owners during the voyage was for the sole purpose of the ship's navigation during the voyage. Certainly, no authority to proceed to Kioto, a port not included in the voyage described in the charter, is to be found in the charter party.

In my judgment, therefore, the shipment of cotton in Shanghai for Kioto on ship's account was a breach of the charter party. as it appears that the ship proceeded from Kioto to Yokohama, and there delivered in good order the cargo shipped in New York But under the charter party for the port of Yokohama, and in view of the terms of the charter party, it seems to me that the charterer is entitled to adopt the act of the shipowners in taking in cargo at

Shanghai for Kioto, and to recover the freight earned by the ship for the transportation of that cargo, or, at his option, to treat the transaction as a breach of the charter party, and hold the ship for the damages caused thereby. I do not see how the charterer can be entitled to the freight earned by the breach of the charter party, and also to damages for such breach.

It is said that if the freight collected at Kioto, and paid over to the shipowners, belongs to the charterer, the libelant's claim is against the shipowners for money had and received, and is not within the jurisdiction of the admiralty. But the service performed in earning the freight was a maritime service, and the duties of the respective parties arise out of, and are fixed by, the terms of a charter party of the ship, and the ship was the instrument used in performing the service. Under such circumstances, it is my opinion that a maritime lien in favor of the charterer attached to the ship for the amount of the freight earned by the steamship by transporting the cotton from Shanghai to Kioto, and withheld from the charterer by the shipowners.

The drift of the libelant's argument leads me to suppose that, if compelled to elect, the libelant will elect to recover the freight earned by the ship; and a decree for the libelant for that amount will therefore be entered, unless the libelant gives notice of electing to receive the damages instead, in which case a reference will be had to ascertain the amount of such damages.

The parties will doubtless agree as to the amount of the freight collected.

MCMULLIN et al. v. BLACKBURN.

(District Court, N. D. California. December 11, 1893.)

No. 10,467.

1. ADMIRALTY JURISDICTION-SALVAGE-COSALVORS.

Admiralty has jurisdiction of a suit by a salvor against his cosalvor to recover a share in the salvage money, the whole having been received by the latter under a decree enforcing a salvage contract, and the libelant having failed to intervene in that suit, so that the value of his services and the compensation therefor remain undetermined.

2. SALVAGE SUITS-DELAY IN PRESENTING CLAIMS.

Promptness should be required in presenting salvage claims, and a delay of nearly a year in suing a cosalvor for a share in the salvage money received by him will be considered in determining the amount of the award.

In Admiralty. Libel by Robert McMullin, Jacob Koop, and Frank Wackrow against D. O. Blackburn to recover shares in salvage money received by the latter. Decree for libelants.

W. H. Hutton, for libelants.

Geo. W. Towle, Jr., for respondent.

MORROW, District Judge. In the month of April, 1891, the master of the steamer Montserrat found the steamer Wellington in a disabled condition on the Pacific ocean, about 72 miles southv.59F.no.1-12

west from the mouth of the Columbia river. After some negotia tions, a contract was entered into between the master of the steamer Wellington and the master of the steamer Montserrat for the towage of the former vessel to San Francisco, a distance of about 500 miles, for the sum of $15,000. The service was undertaken and completed, the ships arriving in the harbor of San Fran cisco at the expiration of about four days. Upon the failure of the owner of the steamer Wellington to pay the sum agreed upon for the towage service, D. O. Blackburn, the master of the steamer Montserrat, filed a libel in this court to recover the said sum of $15,000. On the hearing of the case the owner of the Wellington resisted the action on the ground that the amount claimed was in excess of what the service was reasonably worth. The court determined that while the sum of $15,000, agreed upon between the masters, was too large for the service rendered, it was not so exorbitant as to justify setting aside the contract, and a decree was accordingly entered for the amount claimed by the libelant in full for the service rendered.

In November, 1892, Robert McMullin, Jacob Koop, and Frank Wackrow, members of the crew of the steamer Montserrat, commenced this action to recover their shares of the $15,000 recovered by D. O. Blackburn, alleging that they were employed as seamen on the steamer Montserrat at the time the towage service was rendered the steamer Wellington; that they assisted in bringing the latter vessel to the port of San Francisco, and in doing so performed services for which they had not been hired on board the Montserrat. The services rendered the steamer Wellington were salvage services. The Wellington, 48 Fed. 475; The Emulous, 1 Sumn. 207; The A. D. Patchin, 1 Blatchf. 420; The Saragossa, 1 Ben. 551; The Emily B. Souder, 7 Ben. 555. The libelants were entitled to participate in the award made in the Wellington Case, but, having failed to intervene for their interests, the question arises, can they now maintain an action in this court against. D. O. Blackburn, a cosalvor, to recover from him their proportionate shares of the salvage award? In Waterbury v. Myrick, Blatchf. & H. 34, the court assumed, for the purpose of that case, "that an action in personam will lie by one salvor against a cosalvor to recover a proportionate share of the salvage compensation, when the whole is received by the latter, and he withholds the share of the former." The question of jurisdiction was, however, not raised, and what the court assumed was therefore in the nature of dictum. The first reported case in this country, where the question was directly involved, is that of The Centurion, Ware, 477, decided by Judge Ware in 1839. The court, in this case, distinctly affirms the right of the salvor to sue a cosalvor in a court of admiralty for a proportionate share of salvage award, where the latter has received the whole award. The court regards such an action as, to all intents and purposes, a salvage suit. In this case the libelant was a sailor who assisted in performing a salvage service. Arbitrators fixed upon the amount of compensation, and the whole award was paid over to the master. The sailor sued the master

for his share, which he recovered. The court, in holding that the jurisdiction of admiralty attached to libels of this character, drew a distinction between the case where "the libelant does not demand a specific sum which the master is alleged to have received to his use," and where he has been decreed a specific sum, which has been paid to another, and by the latter converted to his own use. The court says:

"He claims generally an unliquidated sum as a reward for his services as a salvor, the amount to be ascertained by a decree of the court. The libel is founded, therefore, strictly upon the maritime service, a consideration over which the court has an undisputed jurisdiction. The question at issue is whether he performed such services as entitle him to a reward as a salvor or not."

In Studley v. Baker, 2 Low. 205, decided by Judge Lowell in 1873, the question is very fully considered and the authorities reviewed. The court stated the conclusion reached:

"That a court of admiralty has such jurisdiction, I cannot entertain the slightest doubt. The liability of the defendants does not rest on a promise, express or implied, so much as the duty of the owners to pay the men their wages, and whatever else is due them by virtue of their employment in the vessel and of the incidents of the voyage. The amount is not liquidated, and can be conveniently ascertained only by a court of admiralty, which distributes salvage according to its own views of propriety and justice. The money, in this case, was taken by the defendants upon a trust which may sometimes be enforceable at law or in equity, and always in admiralty. Indeed, a suit for distribution of salvage is really a salvage suit, and is always so denominated by good pleaders."

Roff v. Wass, 2 Sawy. 389, decided by Judge Deady in 1873, and affirmed by Judge Sawyer on appeal, (Id. 538,) is an open recognition in this circuit of the right to maintain such an action. Judge Deady relied upon the authority of The Centurion. Here, the master and owners received, in settlement of salvage services, from the parties for whose benefit the service had been rendered, the sum of $5,000 therefor. The libelants sued the master and owners to recover the proportionate share of the $5,000, alleging that they had received no portion of said money paid for such salvage service, and that the master and owners had wrongfully converted the same to their own use. Exceptions were filed to the libel, and, among others, the objection was made that the court did not have jurisdiction. But the court overruled this exception, treating it as immaterial. It was maintained by the respondents that the libelants should have proceeded against the barkentine and her owners for their share of the salvage. The learned judge disposed of this argument as follows:

"Admitting the libelants might maintain a suit against the barkentine and her owners for their shares of the salvage earned in rescuing her from destruction, notwithstanding the payment of the $5,000 to respondents, it does not follow that they are bound, or ought, under the circumstances, so to do. If, as is alleged, the matter has been adjusted with the respondents, and they have received a compensation for the whole service, the libelants may affirm such settlement and payment, so far as they are concerned, and recover their share of it as money had and received to their use; and this suit is such an affirmance."

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