Bulkley v. Naumkeag Steam Cotton Company.

HENRY T. BULKLEY, CLAIMANT OF THE BARQUE EDWIN, APPELLANT, V. THE NAUMKEAG STEAM COTTON COMPANY.

At Mobile, it is necessary for a vessel drawing much water to lie outside of the bar and have her cargo brought to her by lighters.

The usage is for the lighterman to be engaged and paid by the captain of the vessel, to give his receipt to the factor for the cotton, and to take a receipt from the captain when he delivers it on board of the vessel.

Where a lighterman, thus employed, was conveying bales of cotton to a vessel lying outside of the bar, but before they were put on board, an explosion of the boiler threw the bales into the water, by which the cotton was damaged; the vessel was held responsible for the loss upon being libelled in a court of admiralty, the master having included these bales in the bills of lading which he signed.

The delivery of the cotton to the lighterman was a delivery to the master, and

the transportation by the lighter to the vessel the commencement of the voy. age, in execution of the contract by which the master had engaged to carry the cotton to Boston. When delivered by the shipper and accepted by the master at the place of shipment, the rights and obligations of both parties became fixed.

The cases in this court and in England examined.

THIS was an appeal from the Circuit Court of the United States sitting in admiralty for the district of Massachusetts. The facts of the case are stated in the opinion of the court.

It was submitted on printed arguments by Mr. Loring for the appellant, and Mr. Andros for the appellee.

The principal question involved was thus stated by Mr. Loring in the opening of his argument:

One of the questions presented, the only one decided in the courts below, is whether or not a vessel may be liable, in a suit in rem, for the loss of or damage done to merchandise never received on board.

It was held that the mere reception of goods by the master or owners, for the purpose of being carried in a particular vessel, did create a liability on the part of the vessel for any subsequent loss or damage, though the goods were never placed on

Bulkley v. Naumkeag Steam Cotton Company.

board, and the loss was not caused by the insufficiency of the. vessel, or any fault of its owners, master, or crew.

The claimant, conceiving that this decision is contrary to the principles of the maritime law and without precedent, and that the question is of importance, presents it for the consideration of this tribunal, and respectfully asks its attention to the suggestions to be presented in his behalf.

It is impossible for the reporter to do full justice to the arguments of the counsel on both sides, because they included so many branches of inquiry, with references to authorities. All that he can do is to give merely the points raised on both sides.

Mr. Loring's points were the following:

1. The libellants cannot hold either the vessel or the owners under the bills of lading, because the goods in question were not on board; and having insisted upon the master's signing such bills, are prevented thereby from resorting to the original contract of shipment.

2. The owners of the vessel were not common carriers. 3. The vessel is not liable in rem.

So far it has not been considered whether or not the libellants have a lien or privilege upon the vessel for the loss they have suffered.

The inquiry has been as to the personal liability of the owners. If the court shall be of opinion that the owners are not liable on the bill of lading, because the goods were not on. board; or on the original parol contract, because that was superseded by the written contract in the bill of lading, which the libellants elected to take; or, if bound by such contract, that the owners were private and not common carriers, and there is no proof of want of ordinary care-then it is unnecessary to inquire as to the liability of the vessel, it being well settled, that except in cases of bottomry and salvage, there can be no claim against the thing unless there is a personal liability on the part of its owners.

In the case of the Druid, 1 W. Rob., 399, Dr. Lushington says: "No suit could ever be maintained against a ship where the owners were not themselves personally liable, or where the

Bulkley v. Naumkeag Steam Cotton Company.

personal liability had not been given up, as in bottomry bonds." And the rule as stated by him, to this extent, is expressly recognised and affirmed by this court in the case of the Freeman, 18 Howard, 189.

If on any ground the court should be of opinion that the owners could not be held personally liable for the loss suffered by the libellants, it necessarily follows that the vessel is not liable, and that this suit cannot be maintained. It is absolutely essential that such personal liability must exist in order to create a charge in rem.

If, however, the court should be satisfied that a personal liability does exist on the part of the owners, it does not follow as of course that the vessel is liable.

The libellants must go further, and show that the policy of the maritime law secures their claim and gives it a preference over others, by creating a privilege against the vessel. The common law gives no such preference.

There is not even a presumption that the vessel is liable because the owners are. The liabilities depend upon different grounds, and are not at all reciprocal. In this court, of late years, the tendency has been very strong to limit maritime privileges, and to deny their existence in cases where they had before been recognised. In the case of the Yankee Blade, 19 Howard, 82, they are said to be stricti juris, and not to be encouraged. In Thomas v. Osborn, 19 Howard, 22, and Reed v. Pratt, 19 Howard, 359, the liens of material men are confined to cases of necessity. A recent rule of the court prohibits the enforcement of domestic liens by the District Courts. The privilege of the ship-owner upon goods for freight is apt to be treated as a mere common-law lien, depending upon possession; and in People's Ferry Co. v. Beers, 20 How., 401,) it is said that "liens on vessels encumber commerce, and are discouraged."

As in all of these cases there would exist a personal liability on the part of the owners, it is very plain that that does not necessarily establish a privilege against the ship.

Mr. Andros's propositions were the following:

1. That between the libellant and the master of the vessel

Bulkley v. Naumkeag Steam Cotton Company.

against which a lien is sought to be enforced in the present case there was a valid contract of affreightment, which is binding upon the claimant and owners thereof.

2. That the owners of said vessel are liable as common carriers, and that such liability commenced immediately the master received the libellant's merchandise for transportation.

3. That the owners being liable in damages for the nondelivery of the libellant's merchandise, which had been by his agents delivered to and received by the master of the said vessel for transportation, the ship in specie is also liable, and that this liability arises from the contract of affreightment, which has been executed on the part of the libellant.

4. That the reception and lading of the libellant's merchandise on board of the lighter by the master of the vessel, for the purpose of transporting it to the same, was a sufficient performance of the libellant's part of the contract of affreightment to enable him to hold the ship in specie as security for the due performance of the master's part of the agreement.

Mr. Justice NELSON delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States, sitting in admiralty, for the district of Massachusetts.

The libel in the court below was against the barque Edwin, to recover damages for the non-delivery of a portion of a shipment of cotton from the port of Mobile to Boston. The facts upon which the question in this case depends are found in the record as agreed upon by the proctors, both in the District and Circuit Courts, and upon which both courts decreed for the libellant.

From this agreed state of facts, it appears that the master of the vessel, which was then lying at the port of Mobile, agreed to carry for the libellant 707 bales of cotton from that port to Boston, for certain freight mentioned in the bills of lading.

The condition of the bay of Mobile, which is somewhat peculiar, becomes material to a proper understanding of the question in this case.

Bulkley v. Naumkeag Steam Cotton Company.

Vessels of a large size, and drawing over a given depth of water, cannot pass the bar in the bay, which is situate a considerable distance below the city. Their cargo is brought to them in lighters, from the city over the bar, and then laden on board the vessels. Vessels which, from their light draft, can pass the bar in ballast, go up to the city and take on board as much of their cargoes as is practicable, and, at the same time, allow them to repass it on their return, and are then towed below the bar, and the residue of their load is brought down by lighters and put on board.

In either case, when the vessel is ready to receive cargo below the bar, the master gives notice of the fact to the consignor or broker, through whom the freight is engaged, and provides, at the expense of the ship, a lighter for the conveyance of the goods. The lighterman applies to the consignor or broker, and takes an order for the cargo to be delivered, receives it, and gives his own receipt for the same. On delivering the cargo on board the vessel below the bar, he takes a receipt from the mate or proper officer in charge.

The usual bills of lading are subsequently signed by the master and delivered.

In the present case, the barque Edwin received the principal part of her cargo at the city, and was then towed down below the bar to receive the residue. The master employed the steamer M. Streck for this purpose, and 100 bales were laden on board of her at the city to be taken down to complete her load, and for which the master of the lighter gave a receipt; after she had passed the bar and had arrived at the side of the barque, but before any part of the 100 bales was taken out, her boiler exploded, in consequence of which the 100 bales were thrown into the water and the lighter sunk. Fourteen of the bales were picked up by the crew of the vessel, and brought to Boston with the 607 bales on board. Eighty bales were also picked up by other persons, wet and damaged, and were surveyed and sold; four remain in the hands of the ship broker, at Mobile, for account of whom it may concern; two were lost.

The master of the barque signed bills of lading, including