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THE "JULIA BLAKE."
1. The master of a vessel can neither sell nor hypothecate the cargo, except in case of urgent necessity; and he can only lawfully do what is directly or indirectly for its benefit, considering the situation in which it has been placed by the accidents of the voyage.
2. The necessity under which he acts is a question of fact, to be determined in each case by its circumstances; and upon his hypothecation of the cargo under his implied authority the lenders are chargeable with notice of the facts on which he appears to rely as his justification, and they must make inquiries and judge for themselves and at their own risk whether the owner, if present, would do or ought to do what, in his absence, the master is undertaking to do for him. Before there can be a recovery against the owner, it must be shown that the circumstances were such as to make it apparently proper for the master to do what he has done. To this extent the burden of proof is clearly on the lenders.
3. Where it appears that from the port where the vessel entered in distress the cargo could be forwarded by another vessel, and that it was for the interest of the shipper that it should be so forwarded, instead of being hypothecated to pay for the repairs of the vessel, and that they could not have been effected without an expense to him of very much more than it would cost to reclaim his property, pay all lawful charges on it, and forward it by another vessel, — Held, that the master had no authority to pledge the cargo without the consent of the shipper or the consignee.
4. Although the bottomry bond cannot be enforced against the cargo, the latter will not be held in that suit for any charges which the vessel may have thereon, where a claim for them is not made in the libel.
APPEAL from the Circuit Court of the United States for the Southern District of New York.
The case is fully stated in the opinion of the court.
Mr. George De Forest Lord for the appellant.
Mr. Everett P. Wheeler for the appellee.
MR. CHIEF JUSTICE WAITE delivered the opinion of the
This is a suit instituted by the Bank of St. Thomas, as the holder of a bottomry bond, against the British brigantine "Julia Blake," her cargo and freight. The decree of the District Court condemned the vessel and freight, but acquitted the cargo and its claimants. No appeal was taken on behalf of the vessel and freight, but the libellant carried the case to the Circuit Court for a review of the decree as to the cargo. The
bond was for $11,600, with fourteen per cent marine premium, and the net proceeds of the vessel and freight were about $3,500. On the hearing in the Circuit Court the libel was again dismissed as to the cargo, and from a decree to that effect this appeal was taken.
The facts found by the Circuit Court, on which, in our opinion, the rights of the parties depend, may be stated as follows:
The "Julia Blake," a British vessel, owned by Peter Blake, of Nova Scotia, left Rio de Janeiro on or about the 31st of March, 1876, for New York, having on board a cargo consisting of five hundred and eighty-two logs of rosewood. The bills of lading were three in number, and were drawn to the order of James Philip Meé, of Rio de Janeiro, the shipper, for two hundred and fifty-three, one hundred and thirty-nine, and one hundred and ninety logs, respectively. About two hundred of the logs belonged to Mee, but the claimants had made advances on them to him. All the rest belonged to the claimants. The charter-party was dated March 16, 1876, and named Mee as the charterer. The stipulated freight was £220, of which £110 was paid in advance.
Mee gave the master of the vessel on sailing a letter of instructions, directing him to proceed to New York and there consign his vessel and cargo to Winthrop Cunningham & Sons, Philadelphia, the claimants, or their agents, and if compelled, by stress of weather or other accident, to put into St. Thomas, to consign the vessel to Lamb & Co. The voyage was prosecuted with safety until the 3d or 4th of May, on one of which days the rigging of the vessel parted, and her masts fell, the mainmast breaking at the saddle, about six feet above the deck, the foremast at the head. The fallen spars and wreck remained for some time alongside and thumping before they could be cleared away. This rendered it imprudent to prosecute the voyage, and the master properly made for St. Thomas as a port of distress, where he arrived on the 27th of May. On his arrival he applied to the acting British consul, who directed a survey to be made by the harbor-master, the principal shipwright at the port, and the master of a vessel. They properly recommended a discharge of the cargo, and it
was necessary to strip the vessel of her copper to stop the leak. The cargo was discharged, and on the 8th of June a second survey ordered by the consul on the application of the master. A copy of the report of the second survey, although in evidence, is not incorporated into the findings, nor are its contents stated, further than that the vessel was making as much water as at the time of the first survey, and that her metal had been much broken and was torn away and ragged.
When the master arrived at St. Thomas he went to several mercantile houses and seemed to be seeking a proper party to whom to consign the vessel. He finally went to Lamb & Co. and engaged them to attend to the business of the vessel and the repairs. He did not show them his charter-party or letter of instructions, but told them he had lost those papers.
Upon the arrival of the vessel at St. Thomas the master wrote his owner as follows:
"S. S. 'Beta,' via Halifax.
"SAINT THOMAS, 27th May, 1876. “Peter BlakE, Esq.. Parsboro, Nova Scotia :
"DEAR SIR, I regret to have to report that the brigantine "Julia Blake," on her voyage from Rio de Janeiro, encountered heavy weather on the 4th inst., and for the safety of lives, vessel, and cargo, I was compelled to cut away to righten the vessel, and to put into this port, as we were in a too disabled condition to go north. A survey will be held on Monday, and I will supplement this letter by a telegram accuainting you what the surveyors recommend to be done in her present leaky and damaged state; it will likely be necessary to discharge to ascertain damage, and for new masts, &c. This mail closes at once, so I must defer giving you full particulars until next steamer.
"I remain, sir, your obedient servant,
On the 29th of May he sent the following telegram to the
"Julia Blake,' St. Thomas, dismasted, leaky; consigned Lamb; sending survey by mail."
Afterwards Lamb & Co., on the 13th of June, and the 22d of June, wrote the owner. Copies of their letters are as follows:
"French frigate Minerve,' via Philadelphia. "ST. THOMAS, 13 June, 1876. “PETER BLAKE, Esq., Parsboro, Nova Scotia:
"SIR,We have to confirm Captain Knowlton's letter to you, dated 27th ult., acquainting you that the dismasted brig 'Julia Blake' had put in here in a leaky and disabled condition.
"By surveyors' recommendation the vessel has been discharged, and is to-day on the marine repairing slip, for shipping and caulking, &c.; masts, sails, &c., are being made, and in the course of another month the 'Julia Blake' will probably be ready for sea in a seaworthy state.
Captain Kowlton dispatched you a telegram, thus : — "Julia Blake," St. Thomas, dismasted, leaky; consigned Lamb; sending survey by mail.'
on the 29th ult., which no doubt reached you promptly and correctly. From his not receiving any reply from you, he concluded that you wished him to follow the customary routine with documents, &c. Meantime we hand, herein, certified copy of extended protest from the 'British consulate,' which may interest you. No doubt your letters will state in what manner accounts here are to be paid.
"We remain, sir, yours faithfully,
Alpha,' via Halifax.
"ST. THOMAS, 22d June, 1876. "PETER BLAKE, Esq., Parsboro, Nova Scotia :
"SIR, We last wrote you on the 13th instant, via Philadelphia, with certified copy of extended protest per Julia Blake,' which we trust has reached you safely.
"The S. S. Alpha arrived here to-day from Halifax without bringing us any letter from you, but Captain Knowlton tells us that he had a communication, and we therefore refer you to him or his advices for particulars, in connection with the repairing and refitting of the brigantine ‘Julia Blake.'
LAMB & Co."
"We suppose that your next will furnish instructions regarding funds for expenses here; if you don't provide the needful, same
will likely be raised by bottomry and respondentia loan, payable on arrival at New York.
"The Julia Blake' should be ready for sea about 15th proximo, and
"We remain, sir, your obedient servants,
LAMB & Co." To these letters of Lamb & Co., Blake, the owner, replied thus:
"PARSBORO, July 4th, 1876.
"JAMES DONALD LAMB & Co., Esqrs., St. Thomas:
"DEAR SIRS, -I received your favor yesterday, as likewise of the 13th June, by way of Philadelphia, on the twenty-ninth day of June. My dear sirs, I did not know who to write to until lately, as Mr. J. F. Whitney was writing and getting me to write to G. R. Smith, Saint Thomas. I don't know any person there; please excuse me, as I could not answer your letter before this time; as for the 'Julia Blake' and the funds for repairing, I think it will be all right. I hope it won't be too much. I think J. F. Whitney will see it all paid after she comes to N. York. Please give all the time you can, and I guarantee you will have the pay, as I pay every one. My dear sir, this is a thing I never had to do before, you, or any person acting for the 'Julia Blake' will be sure of your pay; the vessel is worth all expenses. I depend on you to do what is right and just; after an adjustment and everything, the whole of the repairs won't come out of me. I think I will be able to pay my share, as Captain Knowlton will tell you. I want you to make sure of yourself by bottomry until you see how this will go in N. York; you will please let me know by return of steamer from St. Thomas all the particulars, as also the amount of repairs, and by so doing you will much oblige your humble servant,
On receipt of this, Lamb & Co. wrote the following letter: "Copy pr. S. S. Alpha.'
"ST. THOMAS, 20 July, 1876.
"PETER BLAKE, Esq., Parsboro, N. S.
"DEAR SIR,We have to acknowledge the receipt of your valued favor of 4th instant, the contents of which claim our best attention.
"The Julia Blake' is progressing with her repairs, and will soon be ready to take in cargo; we cannot, at present, give you any precise estimate of the expenses, as a good deal remains to be done