Bartlett v. Carnley — 13 N.Y. Super. Ct. 194

Majority

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William Bartlett v. Thomas Carnley, Sheriff of the City and County of New York.

Headnote

Goods were shipped aboard a vessel bound to California, and a bill of lading was executed by the master, which ultimately came into the hands of a party in San Francisco, who purchased the goods which it expressed to be shipped,

Before the vessel sailed from Few York, the goods were taken by the sheriff under an attachment against the freighter, and against the protest of the master. Fo indemnity was given by the sheriff or his principals, though demanded. Freight, also, was required but not paid.

The purchaser in San Francisco recovered a sum of money for the omission of the master to deliver the goods according to the bill of lading. The action, which was for the recovery of the goods, was brought by the master, and the goods had been delivered to him under the Code. The only question, therefore, was, whether he was entitled to have damages for their removal ?

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Held, that the freighter who removes goods once shipped with a bill of lading delivered, can only reclaim them upon payment of freight, necessary expenses of unloading, and indemnifying the party for any difference between the value of the goods at the port of lading, and what the master or shipowner may be obliged to pay at the port of destination under such bill of lading.

The French and foreign authorities upon the subject were cited and commented upon.

Held, that the act of 1841 (Oh. 242) carried out the principle of general commercial law, and the bond prescribed would cover the damage and loss which the shipowner might incur.

(Before Oakley, Ch. J., Hoffman and Slosson, J.J.)

Heard, October 31;

decided, November 22, 1856.

This action was commenced on the 10th of May, 1851, to recover possession of personal property, viz., of seven barrels.of oil and one iron safe, alleged to be held by the plaintiff as a common carrier or bailee, and which were seized by the defendant on or about the 18th of February, 1851. The complaint demands the return of the goods and payment of the damages for the detention.

Under this complaint and the usual affidavit, the goods were delivered to the plaintiff.

The sheriff set up in his answer, that one Lucius F. Reed, being indebted to Flanders & Wright, the latter procured an attachment on or about the 17th of February, 1851, from one of the Judges of the Superior Court, against the property of said Reed, directed to him as sheriff; by virtue of which, he attached the goods in question. He avers that such goods were the property of Reed'; that he was the owner thereof, or had a leviable interest therein. He therefore demanded a return thereof, or payment of the value with damages for taking and withholding the same. The warrant of attachment was annexed to the answer.

The plaintiff replied on the 3d of June, denying that Reed was the owner of the goods, or had any leviable interest therein. He says that at the time of the taking he was and is master of the ship Alert, then lading in the port of New York, for a voyage to San Francisco ; that such goods were shipped on board such vessel on the 7th and 8th of February, 1851, and that he executed a bill of lading to the shipper thereof, whereby he undertook to deliver the goods, with other goods therein mentioned, at San Francisco, unto Schultz and Grriffen, or their assigns, they paying

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freight, etc.; that the bill of lading was issued before the issuing of the attachment, and before any claim or demand for such goods; that he is a common carrier for hire and reward, and has bestowed labor and expense about the receipt and custody thereof; that neither the defendant nor Flanders & Wright, have ever tendered to him or to the owners of such ship, any security for.the expenses of unloading such goods, and the detention of the ship for that purpose, as is required by the statute in such case provided, nor offered to pay the freight and primage due on such goods, nor offered any indemnity against the claims of the shippers or consignees of such goods.

Prior to June, 1852, a trial had taken place, and a verdict was rendered for the plaintiff, subject to the opinion of the court at General Term. On the 26th of June, 1852, a new trial was ordered, and leave was given to the .plaintiff to serve a supplemental reply, and to the defendant to amend his answer, and a commission was allowed to issue to San Francisco, to take the testimony of E. M. Burr; but a condition was imposed in this order, that the plaintiff stipulate in writing, to admit on the trial that the property seized by the sheriff was the property of Lucius F. Reed at the time of the shipment thereof, and that the bill of lading which had been delivered to Reed, had not been transferred at the seizure; and; also, that the shipper and Reed were the same person.

The issues raised by the pleadings were tried before Oakley, Oh. J., and a jury, on the' 18th of June, 1856, and a verdict wad taken for the plaintiff, subject to the opinion of the court at General Term, and with liberty to the court to fix the amount of damages that either party might be entitled to recover, and with liberty to order judgment for the defendant, or a dismissal of the complaint. The following are the material facts established by the evidence on the trial:

Upon the trial, certain receipts for the goods were produced, signed by one J. L. Roberts in favor of John Brown. The stipulation meets this difference, by admitting that Brown and Reed were the same persons. The oil and safe were taken from the ship by the sheriff three or four days after the delivery of these receipts, which was on the 6th and 10th of February, 1851.

The plaintiff was the master of the ship, and she sailed from

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New York in March, 1851. The receipts signed by Roberts were surrendered when the bills of lading were given. The one produced was signed by the plaintiff, and is dated the 11th of February, 1851. It was admitted that the oil and safe were taken on the 18th of February, and that they were worth $300.

The witness Burr, examined under the order for a commission before stated, proved that his firm of Burr, Matson & Co., were possessed of a bill of lading, described in the interrogatory, as the same as that produced. They were possessed of it in the fall of 1851, and had purchased it from the firm of Reed & Castree. He supposes it to be in possession of his former partners. It was paid for in the fall of 1851. About $700 was paid. The articles enumerated were delivered except the oil and the safe. For that deficiency, a demand was made on the consignees of the ship, Gf. M. Shaw & Co., who paid them $350 or $400. The precise sum he cannot state. At the time of the purchase, his firm had no knowledge of the attachment upon the goods, or against Reid. The bill of lading was indorsed, as he believes, by Schultz and Griffen.

This testimony was objected to by the defendant.

Judgment was obtained against Reed in the attachment suit, on the 22d of May, 1851, for $163 damages and costs.

It was proven that the captain refused to aid in the removal of the goods; that the sheriff’s officer, with the aid of persons employed by him, effected it; and that the safe and oil were in sight.

It was also proven by the owner of the vessel, that upon the seizure, the captain claimed indemnity for expenses, and for what he should have to pay at San Francisco; also, that the goods had been shipped and freight earned, and claim was made for that. The ship was chartered to E. B. Sutton & Co., for the voyage, and they were entitled to the freight. They were to pay fifty cents a foot.

Wm. S. Leonard, for the plaintiff, argued as follows:

The goods in question being in possession of the plaintiff, as a common carrier or bailee, he had a special property in them, sufficient to maintain an action against any wrong-doer (Code, § 207; Story on Bailments, §§ 93, 94). The defendant was a wrong-doer, he

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had no right to levy the attachment upon the goods in question without executing a bond to the master or owners of the ship, in conformity to the provisions of the statute. (Laws, 1841, chap. 142, § 1.) The plaintiff is entitled to. judgment for a return of the goods and the damages which he has sustained.

A. S. Vanderpool, for the defendant,

insisted that the defendant was entitled to judgment upon the grounds inter alia, that it was his duty upon serving the attachment, to take possession of the goods, and that the statute of 1841 was not applicable to attachments issued under the provisions of the Code.

We shall assume in this case, that the plaintiff represents every interest which could be affected by the seizure of the property in question, and may recover all the damages resulting from such seizure to any one whose title, or claim, he could possibly represent.

The case is then presented, of goods shipped on board a vessel about to sail, (but which had not yet broken ground,) being seized by a creditor of the shipper under lawful process, and re-landed under protest. What damages can the ship-owner legally demand?

He would be entitled, in the first place, to all the expenses attending the unlading of the goods. In the present instance this labor and expense were borne by the sheriff and his assistants. The master declined to render any service; and the plaintiff has not given any proof of a charge or expense incurred by him. The vessel was not detained in consequence of the defendant’s proceedings. By the ordinary rule, the freight to be paid includes the compensation for lading the goods. If freight, or its equivalent, can in this case be recovered, such expenses could not be recovered separately. (Cutting v. Lyons, 1 Bos. and Pull. 634.)

These observations dispose of the expenses attending the lading and unlading.

The next question is, whether the plaintiff is entitled to recover' the freight he would have earned, had the goods been transported and delivered ? It is urged that the shipper would not have been responsible for freight, had he voluntarily withdrawn the goods before the voyage was commenced. “ Freight is the price of car

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riage, not of receiving goods to be carried." (Smith’s Mercantile Law, p. 185.) Accordingly, in Blake v. Dixon, (2 Bos. and Pull. 321,) the Court of Common Pleas determined that, supposing an action would lie for money agreed to be paid beforehand for receiving on board goods to be transported, it could not be declared upon as an agreement to pay freight.

Still, this seems rather an objection to the nature of the demand, and form of the action, than to the existence of a right.

Another class of cases approaches nearer to the present question. Such cases relate to an action for the violation of a charter-party to load a ship, in whole or in part. Damages may be recovered, in estimating which, the benefit arising from taking goods of other persons may be deducted. (Abbott on Shipping, 277; Herscher v. McCrea, 24 Wendell, 206.)

In this last case the action was for dead freight. The party had stipulated to fill so many tons of measurement, at a particular price per ton, and failed to do so. The court held, not merely that the master could fill up the deficiency, and thus the price under the charter-party be reduced, but that he was bound to do so if goods were offered. ' The rule that the charterer was liable for deficient freight was admitted, but was thus qualified. The decision that it is the master’s duty to take the new freight has not escaped criticism. (Henderson’s Maritime Law, § 193.)

These authorities bear upon the present question, but do not decide it. The withdrawal of goods after they are shipped is a peculiar case.

The subject is governed by express provisions in the French and other foreign maritime codes.

The Rhodian Law condemned, without any distinction, the merchant who withdrew his goods from a ship, to the payment of the whole freight. The Guidon de la Mer directed, that if he could not agree with the master he should pay a moiety.

The ordinance of the Marine of France (Art. 6) is, that if a vessel is laden by different shippers, (a cuillette,) by the quintal or ton, and the shipper wishes to retire the goods before her departure, he may have them discharged at his own expense, upon paying a moiety of the freight. The 291st Article of the Code of Commerce is to the same effect.

But the hirer of a vessel by a charter-party, that is, of the vessel,

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pays the whole freight agreed upon, whatever quantity of goods he puts in the ship. This distinction has employed the critical acumen of the French commentators to explain and defend it. (Valin. Pothier. Boulay-Paty.)

The Code of Commerce also provides that the shipper shall bear the expense of lading, unlading, and also of relading.any other goods which it shall be found necessary to displace, as well as of the demurrage. (Art. 291. See Boulay-Paty Droit Commercial, tome 2, p. 380.)

We perceive in these regulations the effort to fix some reasonable rule of compromise and compensation where the service for which freight is strictly due has.never been performed, and the shipper, by breaking his engagement, deprives the ship-owner of a probable benefit.

But the English rule appears to be settled in accordance with the Rhodian Law, and makes the merchant responsible for the whole freight of the articles withdrawn. Mr. Abbott says: “ A merchant who has laden goods cannot have them relanded and delivered to him without paying the freight, and indemnifying the master against the consequences of any bill of lading signed by him.” (On Shipping, p. 531, 4th edition.)

The subject was fully examined in the late case of Tindall v. Taylor (28 L. & Eq. Rep. p. 216, Queen’s Bench, 1854). The declaration stated that certain goods had been received on board a vessel of the plaintiff’s, for conveyance from London to Port Phillip, upon the terms that two months after the sailing of the vessel, freight and primage should be paid in advance. There was an averment that two months had elapsed since the sailing of the vessel, of a demand of the freight and primage, and that the defendant had not paid the amount.

Plea. That after the receipt on board of the goods, and after a reasonable time for the vessel to have sailed, and a reasonable time before she sailed, the defendant demanded a return of the goods, and gave the plaintiff notice that he did not wish the same carried and transported, and required a re-delivery to him, but the plaintiff wholly omitted so to do, and afterwards sailed with the said goods, against the will of the defendant.

Explication. That before the defendant’s demand for the delivery of the said goods, two bills of lading had been signed and

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delivered by the master, engaging to deliver the goods to B. & Co. at Port Phillip, or their assigns, one of which parts was transmitted to the said B. & Co. by the defendant. That the defendant had not, at any time, paid or offered to pay the freight in the declaration mentioned, nor returned or offered to return the said part of the bill of lading, nor offered to indemnify the plaintiff against any claim or right which B. & Co., or any assignee of the bill of lading, might have.

Hejoinder. That B. & Co. were the agents of the defendant, and the said bill of lading was sent to them by the defendant to be held, and was held by them as such agents, and not otherwise; and that the defendant had always been and continued the legal owner of the goods.

Lord Campbell, in delivering the judgment of the court, said: “We entirely agree to the law as laid down by Lord Tenterden in his treatise,” quoting the passage above cited. . “ By the usage of trade, the merchant, if he re-demand the goods in a reasonable time before the ship sails, is entitled to have them delivered back to him, on paying the freight that might become due for the carriage of them, and on indemnifying the master against the consequences of any bill of lading signed for them; but these are conditions to be performed before the original contract can be affected by the demand of the goods.”

“ That if any doubt could be raised upon this question, irrespective of the bills of lading, we think the action would still be maintainable. After the master, at the request of the defendant, had signed bills of lading for the goods, making them deliverable to a consignee at the port of destination, one of which bills of lading they had transmitted to their consignee, it is quite clear that the defendants had no right to the re-delivery of the goods at the port of outfit, on merely demanding them. The consignee, though agent of the shipper, might have had authority to indorse the bill to a purchaser of the goods, who, as assignee of the bill of lading, for a valuable consideration, would have become their proprietor, and entitled to demand them from the master.”

Referring to Thompson v. Dening, (14 Meeson & Wels. 403,) Lord Campbell says: “ An action of contract on the bill of lading by the endorsee of the bill might not lie; but in respect of his property in the goods, he might have maintained an action against

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the master for detaining or converting them, and the master would be estopped from denying that he had the goods after the declaration in the bill of lading, on the faith of which the endorsee had bought and paid for them.”

Considering the law to be as stated by Mr. Abbott, and sustained by the case cited, we see no valid distinction between the case of an owner seeking to withdraw his goods after a shipment, and that of an attaching creditor taking them. As between the shipowner or master and such creditor, the rights and obligations must be the same.

In this view, then, the statute of 1841 (ch. 242, § 1) may be considered as carrying out the legal rule, and the bond therein prescribed to be given, will furnish security for what the law will oblige the creditor or sheriff to pay. Such bond is conditioned “ to pay the owner or master all expenses, damages, and charges, which may be incurred by such owner or master, or to which they may be subjected by unloading such goods from the vessel, and for all necessary detention of such vessel for that purpose.” It is also provided, that if such bond be not executed, the goods may be transported and delivered according to their destination, notwithstanding the attachment.

As, then, the liability insisted upon exists upon principles of general law, independently of the statute, we need not inquire whether the latter law remained in force since the Code; or if it has, whether the omission to give the security prescribed affects the attachment; or what other consequences might result from that neglect. The result of our opinion is, that the plaintiff is entitled to a judgment on the verdict for damages to be adjusted.

The admitted value of the goods in New York was $300, which was received by the plaintiff. He had to pay $350 or $400 in San Francisco for the non-delivery of the goods seized here. It is not stated in the case, whether the freight was deducted before such payment was made. The presumption is, that it was. If so, there would be no freight to be paid now; but if otherwise, it is to be allowed. The plaintiff insists upon his right to it, and we have therefore discussed the question.

The counsel agreed that the damages should be settled by one of the Judges who heard the appeal.

The judgment will, therefore, be for the plaintiff, the amount to be adjusted by one of the Judges, upon notice.