Disney v. Furness, Withy & Co. , 79 F. 810 ( 1897 )

MORRIS, District Judge.

It was objected in argument that this suit was improperly brought in the name of Disney, the master of the Aries, on behalf of himself and the owners, but should have been brought in the names of the owners themselves. This objection was not taken in the answer, which admits that Disney is the master and bailee of the ship.

In Benedict’s Admiralty (3d Ed. § 384) the rule is thus stated:

“The master’s general agency for the owner in relation to the ship and his special property in her and her .cargo and freight authorizes him to bring in his own name actions which- the owners have in relation to the ship, her cargo or freight.”

This is the generally received rule. In Commander-in-Chief, 1 Wall. 43-51, it is recognized as proper practice, and it is suggested that objection for want of proper parties should be seasonably made, so that they may be added by supplemental libel or petition or amendment.

Another defense suggested in argument is that, as March 15th was Sunday, the import of the contract was that the ship must be ready for cargo on Saturday, the 14th. The rule with regard to the payment of commercial paper is cited in support of the contention. The contract was negotiated and signed by. the Baltimore agents of both the parties to it, and their mutual understanding of what the-contract meant is shown by their actions under it. All their actions appear to have been based upon the mutual assumption that the contract intended the 15th as the day of readiness. The answer is framed upon this assumption. The objection that Saturday, the 14th, was the last, day for tendering the vessel, is first suggested now in argument. The payment of promissory notes on Saturday when the due day falls on Sunday is established by general commercial usage; but this usage is not applicable to contracts which fix a day for the performance of a stipulated act, other than the payment of commercial paper; the rule in such case appears rather to be that a performance on Monday is a compliance. 2 Chit. Cont. (11th Ed.) 1060, note n; Stebbins v. Leowolf, 3 Cush. 137-144. In The Harbinger, 50 Fed. 941, affirmed in 3 U. S. App. 333,3 C. C. A. 573, and 53 Fed. 394, it was held where, in a charter party, the canceling day on which the vessel should be at Philadelphia, “ready for cargo,” fell on Sunday, it was a compliance if the vessel arrived in port on that day ready for cargo, although, by reason of its being Sunday, she could neither be entered at the. customhouse, nor procure a pass to load from the underwriters’ surveyor. In the case in hand, the respondents having agreed that the shipowners should have the whole of the loth to get ready, I think it was a compliance if the vessel was in readiness on that day.

The real controversy in this case hinges upon the right of the respondents to cancel the contract upon the ground that the ship was not ready for a cargo of grain on Sunday, March 15th. The objections which the respondents raised were to the shifting boards, to the absence of battens over the seams of the floors and limbers, and to the unfit condition of the holds for a cargo of grain, by reason of the remains of the sugar.

The contract stipulated that: the ship, on the 15th of March, should be in her equipment and condition reasonably ready for a grain cargo, if the respondents so required, although there is no proof that the respondents had a grain cargo at Newport News ready for her, and although, a few days later, under the new charter, they loaded her with ,a very different cargo. But the readiness required was a reasonable readiness, and not a special readiness to gratify particular requirements established by the respondents. This vessel was a new one, not six months old. She had been, when built, fitted out with the shifting boards required for grain cargoes. She did not need the special fittings put by carpenters into vessels not so built. Her shifting boards were all on board, and only required to be dropped into the slots in her iron stanchions, and the iron braces or shores put in place. The defects relied upon, that in two holds (he top board had not been put up, was not really a want of readiness. The boards were there, and the slots to hold them. It was a matter of a few minutes to pur, them in place, and they were put in place before midnight. It is often a convenience in loading not to put the top board up until the grain is partly in. The bulk grain is not allowed in vessels of the Aries type to come higher than 51 feet from the deck, the remaining space, for greater safety, being required to be filled with grain in bags. And so, with regard to shifting boards in the hatch combings, they are not usually required or desirable, and, if used at all, are better put in when the cargo is partly loaded. Neither of these alleged omissions is, in the absence of a specific notice that they are required, a defect in readiness, authorizing the canceling of the contract.

With regard to the battens, the testimony of those employed in fitting vessels for grain at Newport News, and of the grain inspector of the elevators there, tends to show that they require all the seams of the limbers and the floors of the holds to be battened, whether the cracks are such as to let grain through or not. But the testimony of the underwriters’ inspectors, who issue the surveyor’s pass, is that only such seams as are sufficiently open to admit grain, which might choke the pumps, are required to be battened. Obviously, a practice peculiar to the port, requiring battening when not needed, and merely out of abundant caution, could not, without previous notice, give ground for canceling the contract. The carpenters, apparently without distinct orders, but because it was their practice to do so, went to work on Sunday night, and battened all the seams; and by Monday morning, and before the vessel could he actually used, she gratified every supposed requirement in that respect. But I think the preponderance of proof is that in this new ship the very few seams which were in the least degree open were not sufficient to excite apprehension of any risk, either to the ship or the cargo. It is quite apparent that neither of the underwritérs’ surveyors thought so (and they represent the interests most hurt by such defects), and that, except for the great desire to escape from the contract, objection would not have been seriously made by any one. .

The other objection now most earnestly insisted upon is that the remains of the sugar cargo left the holds unfit to receive grain. It is in' evidence that the dry Java sugar in baskets was a clean cargo; that it was discharged in very cold weather; that it was so dry that it could be readily swept up; that the sides of the vessel were protected by mats; that, with.a knowledge that the vessel would be required to be ready on her arrival for a grain cargo, her master prepared her specially for it. Her holds were considered clean by the persons who discharged her in Boston, under the employment of the respondents, as appears from the statement of Mr. Smith, that they had heard through respondents’ agents that'the ship had been thoroughly cleaned, and all the dirt got rid of, before she left Boston. It is probable that her coal cargo had discolored the floorings, and may have left some coal dust in the crevices, and may have given the impression that she was dirty.One set of respondents’ witnesses testify that the seams of the flooring and limbers were open, and another set that they were gummed up with- molasses. One would suppose that the gummy substance would have calked the seams, and at least have concealed the openings. Very likely it was possible, by diligent searching, to find places and crevices in which there were remains of the sugar cargo, and there may have been some stickiness on the rungs of the ladders, and on the edges of the shifting boards, and the discoloration from the coál may have given everything a dirty look; but it does not appear that these trifling matters made her unfit for a grain cargo. She was a perfectly tight ship, of the best modern construction. It is shown that the respondents loaded her with oats, and with flour in bags, a much more sensitive cargo than grain, without anything having been done to her except the scattering of some lime in her holds, which was done early Monday morning, and the putting down of a few battens, and without any further inspection.

It is said that charter parties (and this contract is even less formal than a charter party) should have a liberal construction, such as mercantile instruments usually receive, in furtherance of the real intention of the. parties and the usage of trade. Raymond v. Tyson, 17 How. 53-59. In this case the readiness for cargo contemplated was a practical and substantial readiness, such as would insure the underwriters’ inspector’s approval, and obtain his pass, and would gratify the usual and reasonable requirements for avoiding injury to the commercial value of the grain. It did not contemplate a nice criticism of matters not essential and not usually insisted-upon, and which could not affect any purpose the shippers could have had in contracting to freight the ship, and which did not in-fact injure them at all. I think the owners of the steamship should recover such damages as they may be able to prove.