Higgins v. The United States Mail Steamship Co.

AARON G. HIGGINS

28.

THE UNITED STATES MAIL STEAMSHIP COMPANY.

Where a bill of lading of a cargo of coal, from New York to Havana, made no mention of the number of days within which the coal should be discharged: Held, that evidence of an oral contract that the vessel was not to be detained more than twelve running days in discharging her cargo, was inadmissible. Held, also, that the usage as to the delivery of cargoes of coal at Havana, must govern the delivery under such bill of lading.

Held, also, that as the shipper of the coal had a particular wharf at Havana, where all his coal was landed, the vessel was bound to discharge it there, and to conform to the usage as to its delivery, and could complain of no delay in the delivery, except such as was in violation of such usage.

Held, also, that the shipper was bound to afford accommodation for the delivery according to such usage, and that such obligation was a maritime contract, a breach of which could be sued on in a Court of Admiralty.

(Before NELSON, J., Southern District of New York, May 30th, 1855).

THIS was a libel in personam, filed in the District Court by the owner of the barque Kanawha, to recover damages for her unreasonable detention at Havana. After a decree in favor of the libellant, the respondents appealed to this Court.

Charles Donohue, for the libellant.

Edward H. Owen, for the respondents.

NELSON, J. The Kanawha was freighted by the respondents with coal from New York to Havana; and it is claimed that, according to the contract of affreightment, the vessel was to be detained not exceeding twelve running days in the discharge of her cargo, whereas she was, in fact, detained some twenty-seven days in addition.

The bill of lading, signed by the master of the Kanawha, the only written contract between the parties, makes no mention of the number of days within which the coal should be

Higgins v. The United States Mail Steamship Co.

discharged. It is in the usual form, and stipulates that it is "to be delivered in like good order and condition at the aforesaid port of Havana, (dangers of the sea excepted), unto Messrs. Drake & Co., or to their assigns, he or they paying freight at one dollar per ton, with five per cent. primage, and average accustomed." The limitation as to the number of running days in the discharge of the coal is sought to be made out by oral evidence; and we have the testimony of the agent of the owner on one side, and of the shippers on the other, directly in conflict on the subject.

It is undoubtedly true, that this instrument is open to explanation, to a certain extent, as between the original parties, to correct mistakes or imposition upon the master. So far as it partakes of the nature of a receipt, it may properly be explained, and is not conclusive. But I have seen no case that has gone the length of varying a contract by parol, in respect to a matter such as that in question here. According to the construction of the bill of lading, excluding interpolations by oral evidence, the delivery of the coal would be governed by the custom and usage of the delivery of cargoes of that description at the port of Havana. The oral evidence, therefore, changes entirely the legal effect of the instrument. Even were I more doubtful than I am as to the application of the rule excluding parol evidence of the contract, the omission to insert it in the bill of lading would lead me to incline in favor of the testimony of the witness who denies that any such contract was made. Whether it was made or not depends upon the evidence of the two parties who entered into the contract of shipment. Their evidence, as I have said, is directly in conflict. I therefore lay out of the case the oral agreement set up by the libellant.

Then, as to the delivery of the coal. The respondents were in possession of a particular dock or wharf at Havana, where all the coal shipped for their line of steamers was landed; and I am inclined to think that the master of the Kanawha was right in supposing that he was bound to discharge his cargo at that place. Indeed, upon the evidence, it would seem to have

Higgins v. The United States Mail Steamship Co.

been the only place where the cargo could be discharged at that port. Being obliged to discharge it there, he was also necessarily obliged to conform to the usage and practice that existed regulating the delivery; and which was, as but two vessels could discharge at a time, to wait for his turn. One vessel, over which he was entitled to preference, was permitted to discharge her cargo before him. She was engaged seven days in her delivery, and of this delay he had a right to complain. The Court below found the delay to have been twentyseven days; but this finding was based upon the oral contract, which I have disregarded.

An objection is taken to the jurisdiction of the Court below, upon the ground that the breach of contract complained of is not the breach of a maritime contract. But this is a misapprehension. According to my interpretation of the contract of shipment, the respondents were bound to afford accommodation at their wharf to the Kanawha, for the delivery of the coal, according to the usage and custom of vessels engaged in its shipment. The contract is a maritime contract, over which the Court had jurisdiction, and for a breach of it the libel is brought. The refusal to permit the discharge of the cargo according to the usage of the place, was as much a breach of the contract as would have been a refusal to pay the freight, or to accept the cargo at all, where the bill of lading provided for acceptance.

I must, therefore, reverse the decree below, and, unless the parties agree upon the damages for the seven days' detention, a reference must be made to the Clerk, to ascertain them, in conformity with this opinion, without costs on either side.

The Swan,

THE SWAN.

Where a tow was sunk through the fault of a propeller, which came in collision with her, and without any fault on the part of the tug which was towing the tow: Held, that the right of property in the tow was still in her original owner, or, if he chose to abandon her, he could only look to the propeller for her loss, and not to the tug, and the propeller would, in such case, have the right to raise and repair the tow.

Where, in such case, a vessel ran against the sunken tow and was lost, in the night, because her position was unknown, and was not marked by any light; Held, that the tug was not responsible for such loss, as her control over the tow ceased when the tow sank, and especially as the captain and crew of the tow were on board of the tow when she sank.

Held, also, that the tug was under no obligation to place a light at the point where the tow was sunk, or to raise the tow.

Whether either the owner of the propeller or the owner of the tow was bourd to remove the obstruction, or to indicate its position by a light, quere.

(Before NELSON, J., Southern District of New York, June 13th, 1855).

THIS was a libel in rem, filed in the District Court, against the steamboat Swan, to recover damages for the loss of the schooner H. H. Day and her cargo. After a decree by the District Court, dismissing the libel, the libellants appealed to this Court.

James R. Whiting, for the libellants.

Cambridge Livingston, for the claimants.

NELSON, J. The H. H. Day was damaged and sunk on the Raritan river, in New Jersey, on the night of the 6th of November, 1850, some four miles below New Brunswick, having run against a sunken canal-boat lying in the bed of the river, while on her way to Brooklyn, New York. The canal-boat was so far under water that persons navigating the river at night were unable to see where she lay.

The steam-tug Swan, belonging to the claimants, left New

The Swan.

Brunswick on the same evening with the H. H. Day, but some hours before her, for the City of New York, with six canal-boats and barges in tow, laden with coal and other articles; and, while proceeding down the river, met the propeller Erie coming up, which came in collision with one of the canal-boats with such violence that she immediately bilged. and sank. The collision was owing to the negligence and carelessness of the propeller, without any fault on the part of the tug. The canal-boat thus sunk was the one upon which the H. H. Day, the vessel of the libellants, ran a few hours afterwards, occasioning the loss complained of in the libel. The captain and crew of the canal-boat were on board during the navigation of the tow, and at the time of the collision with the propeller, but were under the orders and direction of the master of the tug. According to the terms of the contract entered into by the master of the tug before the canal-boat was taken in tow, she was to be towed at the risk of her owners. After the collision, the captain and crew went on board of the propeller, and returned to New Brunswick.

The ground upon which the libellants seek to recover for the loss of the schooner and her cargo, occasioned by her running upon this sunken canal-boat, is the negligence and want of care on the part of the tug, in not placing a buoy or boat at the place with a light, or in some other way giving reasonable warning of the danger to vessels navigating the river. The Court below dismissed the libel, holding that no such duty, under the circumstances, was imposed upon the tug. In this opinion I am inclined to concur.

It is conceded that the canal-boat was separated from the tug and sunk without any fault on the part of the tug, and wholly by the wrongful act of the propeller. The tug, therefore, was not responsible for the act of sinking the boat, and, of course, not for the loss of the boat itself or its cargo. If the owner of the boat chose to abandon it, and look to the wrongdoer for the entire loss, he could look only to the propeller. That was a question exclusively between those parties. No duty attached to the tug in respect to it.