Hyperlawhypertext legal database Durando v. New York & Norwalk Steamboat Co. 23 Abb. N. Cas. 56

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Durando v. New York & Norwalk Steamboat Co.

23 Abb. N. Cas. 56 Court City Court of N. Y., General Term ; English

Delivered by McAdam. Ch. J.

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p. 56
DURANDO v. N. Y. AND NORWALK STEAMBOAT CO.
City Court of N. Y., General Term ;
March, 1889.

Headnote

Shipping ; when owner of vessel not liable for debt incurred by steward.] The owner of a vessel, who has leased, the right to feed the crew and passengers to the steward, is not liable for the price of meats bought by the steward, to be delivered upon the vessel, although the seller of the meats was not aware of the relation of lessor and lessee existing between the owner and the steward.
Appeal from a judgment entered upon a verdict.
William P. Durando sued the New York and Norwalk Steamboat Company for meat furnished by him and delivered on board of two boats owned by the defendant, one being a passenger boat and the other a freight boat.
p. 57
The meat was ordered from the plaintiff by one Lonis .J. Adams, the steward or cook of the boats, who had an arrangement with the defendant, whereby he was to feed the crews of both boats at a certain rate per head each week, and was to pay the defendant a certain sum per month for .the use of the restaurant on board of the passenger boat. Adams was also to furnish all the articles required by him to carry out his part of the contract at his own expense, and the profits derived from the business were to be his.
The plaintiff’s contention was that as Adams was steward of the boats on which the goods were delivered, and as the plaintiff had no knowledge of Adams’ contract with the defendant, the latter became liable to him because it owned the boats. Upon the trial the plaintiff recovered a verdict, by direction of the court, for $1,101.20, and from the judgment entered thereon the defendant appealed.
Owen, Gray & Sturges, for appellant.
E. P. Wilder for respondent.

For the purpose of maritime liens and the like, a vessel is treated as a legal entity, and demands ■are at times enforced against it, for which the owner could not be charged in personam. The present action is in the latter form against the defendant as owner. As it neither ■ordered the supplies nor appropriated them to its own use after they were ordered, it cannot be held liable to the plaintiff, except upon the familiar principles of the law of .agency. The plaintiff proved that Adams, who ordered the beef from the plaintiff, was steward or cook of the two steamers, and that the goods were delivered on board of these vessels. This may have made out a prima, facie cause of action against the defendant as owner (Flanders v. Merritt, 3 Barb. 201 ). But when if was proved that Adams was not the defendant’s agent or employee, but an independent contractor, in a dual capacity, to wit: to feed the

p. 58
crew of both vessels at an agreecLweeldy rate, and as lessee-of the restaurant of the steamboat City of Albany, under a contract to pay the defendant as owner $80 per month for its use, and that the beef was supplied to fulfill that contract-,, and was so used by7 Adams, whatever presumption previously7 existed against the defendant was destroyed, and the plaintiff’s case left unproved. By the demise of the restaurant to Adams, he became j?ro hac vice the owner' thereof, and alone liable for debts contracted for the purpose of running it (Webb v. Peirce, 1 Curt. [ U. S.] 104; Mayo v. Snow, 2 Id. 102; Fox v. Holt, 4 Ben. [ U. S.] 278; Hallet v. Columbia Ins. Co., 8 Johns. 272 ;. Kenzel v. Kirk, 37 Barb. 113 , 120; Macy v. Wheeler, 30 N. Y. 231 , 239, 240). He was neither an agent nor servant of the defendant, but acted on his own behalf as principal. There-is no evidence that by general custom or usage stewards are authorized to contract for beef or the like, and charge their boats therefor, so as to bind the-defendant even to a creditor having no notice of the agreement made, under which the steward was acting, nor is there-anything in the case from which an authority to charge it can be implied. The defendant never paid bills contracted-by Adams, never held him out as agent, and did nothing from which it could be inferred that he had any authority to-bind it.

The proceeding not being m rem, it is useless to examine-the decisions bearing on maritime or Slate liens where the credit is given exclusively to the vessel, and where the-authority of the master of a vessel to charge the owner is sometimes implied, although the vessel has been chartered,, and is under the control of others (Vose v. Cockroft, 45 Barb. 58 ; Pendleton v. Franklin, 7 N. Y. 508 ), for the master, as a rule, is the accredited agent of the owner as to-all who know nothing t-o the contrary (Provost v. Patchins, 9 N. Y. 235 ). A steward, on the other hand, is generally regarded as one of the crew, and may be merely a waiter om board the vessel ( Webster’s Dictionary), and there is nothing

p. 59
in liis title, which ex vi termini, gives him more implied authority to bind the vessel or its owners for supplies, than any other member of the crew, and they have none. The-power did not rest in the steward ex necessitate rei, for the owner was represented by its chosen agent, the master, who-(apart from the owner) had sole power to determine what supplies should be procured for the vessel, from whom, and the price to be paid for them (Ford v. Crocker, 48 Barb. 142 ). When its gets below the master, there is no implication of power to contract for the owner, and where debts are-contracted by subordinates, the onus is cast on the creditor who seeks to enforce such claims against the vessel or its owner to prove, as in other cases of servants or agents, that the subordinate had authority from the master or owner to-perform the act, before either the vessel or owner can be held for the demand made. This authority must be established either by direct proof, by recognition of previous acts of a like character, or by the general custom or usage of the port authorizing the steward to execute the power assumed (Ernst v. The Brooklyn, 22 Wisc. 648). There is nothing-in the case showing that the steward had any power whatever to bind the defendant on the contract made by him.; on the contrary, it clearly appears that he had not.

For these reasons the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the-event.

On the new trial, the question when Adams died, whether any and what meat was furnished to the boats after his death, and on whose credit, the value of such meats, and the liability of the defendant therefor, may be intelligently determined.

Nehrbas and Ehrlioh, JJ., concur.

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