The Portland daily press., 1869-05-24
DAILY PRESS.
PORTLAND
Monday Morning, May "a, 1859.
An Important opinion of Judge Fox
upon on,mercjal law

upon Z OmmefctaA LAW.
District Court Of the United States, Maine
District, Feb. g. 1869. The Maria White.
Fox j. This Libel is promoted by the own
ers OF the brig, one of whom was master, to
recover from the respondents, ,Messrs. Cheese
man and Marshall, the balance of the freight.
for the transportation of a cargo of ice, for
the respondents from Gardiner to New Or
leans The bill of lading is produced as evil
dence of the contract 1t bears date at Gar
diner, August 21, 1866, and recites "the lading
on board of the brig" of 26O tons of ice by the
Respondents; ice and dunnage to be loaded
and discharged by shippers, with the assist
ance of vessels crew; Freight $3000." Ger
tain stipulatons are found in the bill of lad
ing touching the care to be exercised over
the cargo, on the voyage by the master, upon
which no question is presented. "The ice
was to be delivered in like good order and
condition, excepting what may be lost by the
natural waste OF al. article, at New Orleans,
the danger OF the seas only excepted, unto
Cheeseman and Marshall, or agents, for the
medical department United States Army or
their assigns. Freight for said ice, payable
at place OF discharge, after proper discharge
OF cargo-12 working lay days, for discharge
Of cargo, after that demurrage at the rate of
15 cents per. ton on each register ton of yes
sci per day.
The brig arrived about 7 miles below New
Orleans, on the 21st of September. The cap
tain went up to the city and as certained that
one Gould was acting agent of the respon-
dents, who were engaged in the business of
shipping ice to that place. The master called
on Gould that afternoon and informed him
| that he had this cargo on board and was
ready to deliver it. Gould replied that he
was the agent of respondents, but had not
received from them any bill Of iading or in
structions about the cargo. The next day,
the master again called on Gould and tried to
get him to receive the cargo. Gould offered to
receive it but said, he could MT pay the
freight or any part of it, as he had no funds.
The master offered to deliver him the cargo il
he would pay one thousand dollars on ac-
| count of the freight and endorse on the bill Of
| lading that the cargo had been delivered.
Gould replied, he could not do it as he had
no funds, and did not know as he could raise
money enough to pay expense of unloading
the cargo. Notice was given in the public
| prints, calling for the agent of respondents to
come forward and receive the cargo in reply
to which, Gould again appeared, claiming to
act in behalf of respondents, offering to re-
| ceiye the cargo, and give the master sight
drafts on respondents tor the freight money,
but at the same time informing the master,
| that his drafts heretofore drawn on the re-
| spondents had been returned protested for
| mona acceptance, one of which for $500 or
| 5000 was shown to the master by Gould.
Gould finally notified the master, that he
| would have nothing to do with the cargo, and
| that he abandoned all claims to it. The mas
ter thereupon, took legal advice, and by di-
i rection OF counsel the cargo was sold on the
afternoon OF October A, at public auction for
the benefit of whom it might concerns the guam
tity Of ice delivered, as pe- auctioneers GER
| titicate was 153 tons and the net amount zeal
ised was $664S5. The sale was advertised in
| three daily papers, and large company was in
| attendance. The respondents had another
cargo of ice, at the time in New Orleans and
| SO far as there is any evidence before the
court, the sale was fairly and honestly con-
Quoted, and the fair cash value realized.
The vessel was not entered at the Custom
| House until September 23d, and did not
reach her berth until that day, but she could
have been ready to discharge on the morning
of September 22d, if Gould had been prepar-
ed to receive the'cargo and pay freight, ac-
cording to the bill OF lading. The maste re-
manned at New Orleans until the 10th of Oc-
| tober, but he received no communication
from the respondents, and it is not shown
that the bill of lading was ever forwarded by
them to New Orleans, or that at any time
they advised Gould, or any other person
there, in relation to the cargo. The master
| qPplACu W buC LuCu4Cdl QCPdt db 1NCW
Orleans to receive the cargo, but 1t was de-
clined.
The answer of the respondents admits that
the master did notify their agent at New Or
leans of his arrival but denies that the notice
was given on the 23d instead of the 21st, and
sets forth, In justification shat defendants
at that time reasonably expected and suppos-
ed that their said agent at New Orleans
would, on the arrival of said cargo, have suf-
| aia f,rr1 1c 10 "A
believe, that he did have sufficient funds as
aforesaid, but that they are informed and be-
lieze that when called on by the master oi
said vessel as alleged in said libel, he did re.
fuse TO pay said freight, in the manner stipu-
lated as aforesaid, but he did not refuse to re-
ceive said cargo or have anything to do with
it, but gave as s reason for not paying freight
that he had no funds, but that he would re-
ceive the cargo, and give sight drafts, for the
freight on defendants which drafts would
have been duly honored and paid"
The agency of Gould is therefore fully ad
mitted by the respondents, and am satisfied
from all the evidence in the case, that at last
he abandoned the cargo to the master and re-
fused to have anything to do with it; and
that before this, he had been requested by the
master to obtain instructions from his princi-
pals by telegraph, to which he replied that
the lines were out of order; and on another
them. Willis! 1 am still OF opinion, as init
mated at the trial, that the mere declaration
of the agent, that he had sent telegram bit
had not received areply, may not be admissa-
BILE as evidence of the fact that such a tele-
gram had been sent by him, think the fact
OF the agents having so informed the master,
Is legal evidence bearing upon the question
of good faith on the masters part and of his
desire and purpose to obtain directions from
/ cl,s 20 bo 10 h<, IL,
of their property.
The agent, whose duty it was to receive
this property, having thus abandoned it, with
the information to the master that he could
get no instructions from the shippers, what
was the duty of the master under all the cir.
cumstances?
In the case of an ordinary cargo, the duty
OF the master, under such circumstances
is settled by the Supreme Court of the Unit
ed States, the case of the Eddy, 5 Val
lace 495, in the opinion by Judge Clifford,
in which he says, "When the goods are not
accepted by the consignee or owner of tn e
cargo, the carrier should not leave them ex-
posed on the wharf, but should store them in
a place OF safety, notifying the consignee,
or owner that they are SO stored, subject to
the lien of the ship for the freight and
charges, and after be has done so be is no
longer liable on his contract of affreightment." !"
| ne mdSler udS lien on MS cargo Tor the
freight due thereon, but this lien is mere
| right of retention. to hold the property as se-
| curity for the payment of the amount due,
| and does not authorize him to sell the prop
| erty to obtain the amount. His proper course
| is, either to retain the property from the con-
signees, or else to libel 1T in admiralty, as this
| is a maritime lien which the district court
| of the United States will enforce and render
| available, by taking the property into its GUS
| tody and determining the amount due, and
ordering sale of sufficient portion to re-
| alize the amount with incidental expenses.
do ot.think any case can be found which
| will justify sale by master of portion of
his cargo merely to deiray his lien for its
l freight, If such an one is reported it has
escaped my observation.
| If this is the only ground .on which this
| sale is TO be sustained, should think the
master was not justifiable. 1t is claimed,
however, that it was a necessity-that the
master was so situated that he could not
| adopt any other course; that heswas obliged,
| from the very necessity of the case TO act
as he did, and on the whole, l am inclined to
adopt this view of the transaction.
The agent Of the shippers had by his aban-
donment OF The property, so placed the mas
ter, that he had become the agent for all par
ties interested, and he had reason TO believe
that the shippers had themselves consented
to that condition of things, as no adyices or
bill of lading had been received from them,
although the master believed that an attempt
had been made to obtain their directions. He
was in a warm climate, with a cargo of a
most perishable nature fast wasting away
4 A..