The Sark , 245 F. 909 ( 1912 )

FOSTER, District Judge.

[1] In this matter it appears that the South Atlantic Steamship Company chartered the steamship Sark by a general charter, to load from New Orleans to one or more ports in Denmark. As a part of her cargo, the Southern Cotton Oil Company shipped some 1,250 tons of cotton oil cake to Nyborg which they had sold to the firm of J. J. Larsens of Copenhagen' for October and November shipment. A part of this cotton oil cake was- delivered to the steamship during the month of November, but a considerable amount, of it was delivered after the first of December and some as late as the 10th of December. The portion delivered in December, of course, was not a delivery under the contract of sale. The charter party contains the usual clause, requiring the captain to sign bills’ of lading as presented to him. Alfred H. Clement, in charge of the charterer’s office in New Orleans, however, renuested permission of the captain to sign the bills of.lading for him. The captain did not consent, but neither did he seriously object, and Clement did sign and issue 13 bills of lading, covering the shipments of the aforesaid oil cake, and the captain impliedly ratified the signing. Clement had, however, antedated some of the bills of lading to show that the entire shipment had been received on board during the month of November, but this part of his action the captain had no knowledge of and could not be considered to have approved. On the faith of these, the consignees of the cotton oil cake accepted, and ultimately paid, drafts for the purchase price. However, when the ship arrived in Denmark, the consignees discovered that all of the cotton oil cake had not been actually received on board during November, and instituted an action against the ship for damages, on the theory that as the price had declined they would not have accepted the shipment, owing to the default in delivery, but for the falsely dated bills- of lading. The ship appeared by counsel and defended the suit, but judgment went against her, and it is the amount of her damages, growing out of the award, that libelant, her owner, is now seeking to recover.

[2, 3] In the libel Clement is alleged to be the managing director of the South Atlantic Steamship Company. He was not such an official ; but it is immaterial, as he was their agent in full charge at New Orleans, conducting the business almost entirely on his own responsibility. Both Clement and Trosdale, who was the general manager of the company, contented themselves, when testifying, with denying that the former was the managing director of the company, and said nothing about the scope of his authority. Meyers, president of the company, testifies Clement’s authority to sign hills of lading depended on the form of the charter party. The form of the bill of lading prepared by them indicates that it was their intention that Clement should sign bills of lading for the captain, and there is testimony by respondents’ witness Pearce tending to show that it is customary for the ship agent to sign bills of lading for the captain at New Orleans in certain circumstances. I am convinced that Clement acted within the scope of the authority delegated to him by the charterers, and that his action in predating the bills of lading was deliberate and fraudulent.

It is contended by respondents that as the ship would not be liable for a bill of lading signed by the master, or some one for him, when the goods were not actually received, there was no liability in this case; but I consider that contention entirely beside the issue.

The verdict of the Danish court is conclusive on the parties, and the ship was made to suffer through the wrongful act of respondents’ agent acting within the scope of his authority, and for which they are responsible.

There will he a decree in favor of the libelant as prayed for.

®=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

<@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes