
    GOODWIN’S CASE. Asahel Goodwin v. The United States.
    
      On the Proofs.
    
    
      The Quartermaster Department charters a schooner, the marine risk to he home by the owner, and he agreeing that she shall he kept tight, staunch, and strong, in every respect fit for merchant service, at his cost. By stress of weather and springing a leak, she is forced to put into St. Thomas. The master, without attempting to communicate with the Quartermaster Department, hypothecates the vessel and cargo. The bottomry bond is not paid, and the vessel and cargo are libelled after their arrival in the port of New York. It is held that the district court has no jurisdiction to detain a cargo belonging to the government, and it is discharged from the marshal’s custody. The Quartermaster Department agrees with the ovme>' on a revaluation of the cargo andreapporiionmemt of the obligation of the bond. This agreed proportion it pays. While the vessel is in the marshal’s custody the Quartermaster Department requires the master to report daily, and the cargo remains on board. After the decree dismissing the libel, the cargo is unloaded and the vessel discharged. The Quartermaster Department refuses to pay the agreed wages of the vessel for the time she xvas in the custody of the marshal. The owner seeks to recover up to the time of the vessel’s discharge by the Quartermaster Department.
    
    I. Where the cargo "belongs to a single individual known, to the master; the ship in a port near to that in which the owner is resident; the means of communication sure and speedy; the probable delay inconsiderable; the cargo not of a perishable kind; the amount of money to be borrowed so large as to be sure to bring the cargo within the operation of the bond, there, the master cannot hypothecate the cargo for the repairs of the vessel without first communicating with its owner. Hence,' the master of a government transport, which has put into St. Thomas in distress, has no right to hypothecate the cargo without first communicating with the proper officers of the government.
    II. The district courts of the United States have not jurisdiction to detain a cargo belonging to the government, and ’ where such a cargo has been libelled under a bottomry bond, it must be discharged from the custody of the marshal.
    HI. Where the charter of a government transport provides that the marine risk shall be borne by the owner, and that the vessel shall be kept tight, staunch, and strong, and in every respect fit for merchant service, at Ms cost, the defendants are not liable for the ship’s wages at a time when she is in the custody of a marshal under a libel to enforce a bot-tomry bond given by the master for repairs upon the vessel, notwithstanding that the cargo remains aboard, and that the master is required to report daily to the Qnartormaster Department, and that the vessel is not discharged from the defendants’ service until after her release from the custody of the marshal, and that the charter-party iDrovides that she shall be paid at a certain rate until discharged. Her detention under the libel comes within the obligation of the owner that she shall be kept in every respect fit for merchant service, at his cost.
    
      Mr. T. J. D. Fuller for the claimant:
    1. Claimant was sole owner of schooner Othello.
    2. Contract of charter-party entered into August 26, 1865, at Wilmington.
    The attention of the court is invited to the following passages in the contract, to wit:
    
      a. “ To proceed to such, places as ordered by quartermaster.”
    
    
      b. “ All pilotage and port charges will T)e paid by the United States.”
    
    
      c. “During the term of this contract the United States will pay or cause to be paid the fall and jttst sum of $50 per day for each and every day said vessel may be employed.”
    
    
      d. “ The charter to go into effect 6 o'clock p. m., August 26, 1865, and .shall continue in force as long as said vessel may be required by the United States War. Department.” (See Pratt’s Case, 3 C. Gis. R., p. 104.)
    3. The vessel was discharged at the port of New York, on the 7th day of August, 1866, and ten days allowed for return to North Carolina.
    The vessel has not been paid, for one hundred and fifty and eighteen-twenty-fourths days, part of the time while under the charter and in the service of the government, to wit, from the 1st day of March, 1866, to August 7,1866, and wharfage during said time while the United States “required the use of said vessel” in the port of New York for said time, $308 72.
    4. The vessel was consigned to Ceneral Stewart Van Vliet, department quartermaster general at the port of New York, where she arrived and reported February 13, 1866.
    The evidence, considered by itself, makes out a perfect case for claimant.
    
      But there are other facts in the case, and the question is, whether these other facts constitute in law, under this contract, any defence for the defendants. This fact is undisputed and undeniable: that the vessel was not discharged, from the contract and service until the 1th of August, 1868.
    How the United States can work out the problem that the vessel could be continued in their service under the contract, and at the same time suspend her pay, is a question for the exercise of the ingenuity of the learned counsel of the United States to illustrate and demonstrate.
    The United States might as well have discharged the vessel on the 1st day of March, 1866, as to have kept her and her officers and crew in service, requiring them to make their daily report to the quartermaster up to August 7, the day of actual discharge.
    The United States, for their own interest and convenience, preferred not to do it.
    They chose rather to pay the $50 per day charter dues, and contest the question of its liability to general average, than to discharge the vessel.
    The use of the vessel, 'pendente lite, was necessary for the storage of the freight.
    They might have bonded theirfreightand discharged the vessel, or they might have demanded freight and, upon refusal, replevied it. They might have entered into the stipulation, which they eventually did, to land the freight and store it, subject to the order of court and final decision of the question. The question is, Shall the United States abide the decision of its regularly-constituted agents, or shall it now be allowed to repudiate their acts in part and affirm in part %
    
    Adopting the construction of the contract of charter-party held by Judge Nelson (see 5 Blatchford, p. 343, and 1 Benedict, p. 43) as the true one, to wit, that the United States were not the owners pro hcec vice, but it was a contract resting in covenant, then, under the analogies of the maritime law, how stands the case %
    
    The vessel, being tight, staunch, and strong when she started on her voyage, became disabled by the perils of the sea, so that vessel and cargo were equally in jeopardy. The master bore-away for the nearest port, for the safety of both, and made the Island of St. Thomas.
    
      The cargo being imperishable in its character, the master could either repair or procure another vessel to forward his freight at the same rate per diem. But he chose to repair, and no doubt acted discreetly in so doing.
    The master had authority to hypothecate vessel and cargo for repairs to enable him to complete the voyage. The owner lived at Cape Naddeck, Maine.
    Kent says, (vol. 2, p. 131, 1st edit.:) “It is clearly settled that the master, when abroad, in the absence of the owner, may hypothecate the ship,' freight, and cargo to raise money requisite for the completion of the voyage,” and cites 3 Bob. Adm. Bep., 240, in support of the text. The agent fulfilled his contract by delivering his freight at the port of 33 ew York.
    The time the vessel was delayed in St. Thomas for repairs, fifty-six days, was deducted from the freight, or its substitute, per Mem pay.
    
    The question of average is not an open one, and is not raised in the case.
    The United States have paid it.
    But the question of per Mem, from March 1, I860, to August 7,1860, is the question here at issue.
    The Third Auditor and Second Comptroller say, “ The elaim for per Mem compensation, lohile the vessel was in the custody of the United States marshal, cannot he entertained, because of the element of unliquidated, damages, which constitutes a pari of the claim.”
    
    The claimant could not control the vessel in New York. There were three parties in interest: the owner, the bottomry bond obligees, and the United States.
    The United States were liable to contribute in general average. The decision of Judge Nelson does not go to the extent that the United States were not liable to contribution, but only to the form of the proceedings in rum.
    
    In the view we take of this case the true solution of it is simple and easy. The United States covenant to pay $50 per diem for so long a time as the vessel is in their employ. It is in their employ until discharged by competent authority.
    The elaim rests on contract. A discharge of the vessel is a condition-precedent to terminate its liability. To retain the use and control of the vessel, and to allege misconduct of the owner, is not permissible. Neither notice nor discharge was
    
      The United States are estopped in pais from denying the claim for compensation.
    The owner was in no fault. He was ready and willing, and offered, to pay his proportion of tlie general average, either upon the St. Thomas or the New York valuation of the cargo.
    
    The vessel being continued in the service of the United States under the contract, they most pay for it.
    
      Mr. Jacob Shroder (with whom was the Assistant Attorney General) for the defendants:
    I. The charter-party of August 26, 1865, upou which this suit is brought, determines the rights and obligations of both parties. By that instrument the defendants are bound to pay only upon the claimant’s “presenting certificates of the duly-authorized agent of the Quartermaster Department that the said vessel has faithfully performed her part of this contract.’’ The claimant has no such certificate, and this want unprops his claim under the charter-party.
    The quartermaster certifies that the Othello was under suspension during the period for which pay is now demanded.
    II. By the charter-party Goodwin retained the possession and navigation of the vessel, and the hiring rested in covenant. (The Othello, 5 Blatchford’s C. O. Bep., 343; McIntyre v. JBoivne, 1 Johnson, [238.])
    This contract bound the Othello, on November 15, 1865, to proceed, without delay, from Wilmington to New York City, and deliver her cargo- to Quartermaster Yan Yliet, at the port of discharge. She failed to deliver her cargo, being neither ready nor able to do so. Yan Yliet’s neglect, if any, to require a delivery is thereby excused — lex neminem cogit ad vana seu inutilia.
    
    The Othello’s non-delivery resulted from no default of the government. She was libelled and arrested to enforce rights under the bottomry bond, and not, as claimant’s brief asserts, to secure a contribution in general average. The government, under the circumstances, was not bound by the bottomry bond, and therefore not held to aid its redemption; for the master’s hypothecation of the cargo was unauthorized. “ The character of agent for the owners of the cargo is imposed upon the master by the necessity of the case, and by that alone.” This necessity could arise only after the master had exhausted all means of communication with defendants. During an interval of forty-three days, between December 12, 1865, and January 25, 1866, not even an attempt was made to obtain defendants’ directions. This, at least, was the master’s duty, the non-fulfilment of which left him unauthorized to bottomry the cargo. (The Hamburg 1 Maritime Law Oases, 327; 2 Ib., 1; The Gratitudiñe, 3 Robinson R., [273 j] The Cynthia, 20 E. L. & E., 623.)
    Had the defendants beeh liable on the bond, they would not have been bound to aid its redemption until the proceeds of vessel and freight had been exhausted. (La Constancia, 4 Notes of Oases, Ecc. & Marit., 285; The Ship Packet, 3 Mason, [255] and [267;] 2 Parsons on Contracts, 285, n. (r.) ) Their refusal, in March, 1866, to pay their contribution in general average, gave the claimant no right to withhold, in effect, the delivery of the cargo by delaying to discharge the bond.
    III. Whatever may have been the contemporaneous opinions and fears of the defendants’ agents, (as indicated by evidence from page 24 to page 32, inclusive,) as a matter of fact and law, the Othello was neither able nor ready to perform her part of the contract during the period in question. And this without defendants’ default. That the ship’s master was required to report daily to the quartermaster is of no avail to the claimant in this case. The requirement was prudent and justifiable, while Goodwin, in relation to the United States, was in possession of their property. It was a surveillance irrespective of the charter-party; a reasonable care taken of the defendants’ property in claimant’s possession.
    IY. The question of average is not raised in this case. The claimant, however, charges the defendants with having caused the ship’s arrest by not timely contributing in general average.
    That the defendants were not bound to contribute then has already been argued. They certainly had a right to refuse contribution then, on an exorbitant appraisement made at St. Thomas, and not at New York, the port of discharge. (Strong v. Fireman Ins. Co.', 11 Johns., 334 and 335; 3 Kent, 327.)
    But, admitting the contrary, the defendants contend that the bottomry bond, the charter-party, and the principle of general average, respectively, gave distinct and independent rights and imposed distinct and independent obligations. Whatever rights in general average Goodwin might hare had against the United States, these did not relieve him of his obligations under the charter-party; these did not entitle him to the aid of the United States in discharging his bottomry bond.
    His lien on cargo for contribution gave no right to withhold the services of the vessel.
    
    Ho cannot exorcise his lien in such a way as .to incapacitate himself from the performance of his contract, and then claim $50 a day during the period of Ms incapacity.
   DRAKE, Gh. J.,

delivered the opinion of the court:

This suit is brought to recover $50 per day for one hundred and fifty and three-fourths days, as compensation for the schooner Othello under a charter-party thereof, entered into between her master in behalf of the claimant, her owner, and an officer of the Quartermaster Department of the United States Army, on behalf of the United States; by the terms of which charter-party the marine risk was to be borne by the owner of the vessel; and he covenanted and agreed that she was, when the charter-party was signed, and should be kept and maintained during the whole voyage, tight, staunch, strong, and well and sufficiently manned, victualled, tackled, apparaled, and ballasted, and furnished in every respect fit for merchant service, at the cost and charge of her owners.

Under orders from the Quartermaster Department, and laden with ordnance and ordnance stores of the United States, the Othello sailed from Wilmington, North Carolina, for New York City, but was forced, by stress of weather and springing a leak, to bear away and seek shelter in the harbor of St. Thomas, West Indies, where she arrived on the 12th of December, 1805.

At that port G. W. Smith'&• Co. advanced the money necessary to repair the vessel; and on the day of her sailing thence for New York, January 25,1806, the master of the vessel, without having communicated or attempted, to communicate with the United States, or with any one in the Quartermaster Department of the army, or with any one authorized to represent the United States in regard to the cargo, as to his intention to hypothecate the cargo, executed to G. W. Smith & Go., for their advances and charges, a bottomry bond, hypothecating the vessel, freight, and cargo for $15,535 40 in gold, with a premium of 12 per cent, for tbe voyage, making a total of $17,399 71, payable in gold witbin ten days after tbe arrival of tbe vessel at New York.

Sbe arrived at that port on tbe 13tb of February, 1866.

Tbe bottomry bond was not paid, and tbe vessel and cargo were libelled in tbe District Court, and attached on tbe lOtb of March, 1866. The cargo was discharged from tbe marshal’s custody in July, 1866; it being held by tbe District Court, and, on appeal, by tbe Circuit Court, that there was no jurisdiction in tbe former court to detain it in tbe proceeding on tbe bot-tomry bond.

Tbe Othello was discharged from the, service of tbe government on tbe 7th of August, 1866.

Tbisf suit is brought to recover the stipulated per diem compensation for tbe vessel during tbe one hundred and fifty and three-fourths days of her detention by tbe marshal under tbe process of tbe District Court.

In support of this claim, it is contended that tbe master of tbe Othello bad full legal power to execute tbe bottomry bond, hypothecating tbe cargo, as well as tbe vessel and freight; that tbe United States was bound, on tbe arrival of the vessel at New York, to pay in general average its proportion of tbe amount of tbe bond; and having failed to do so, tbe attachment and detention of tbe vessel resulted from such failure, and did not cut off tbe claimant’s right to tbe stipulated per diem compensation. If these positions are sound in law, tbe claimant is entitled to recover •, otherwise not.

It cannot be considered at all doubtful that tbe master of a disabled ship in a foreign port may execute a bottomry bond hypothecating tbe cargo, as well as tbe ship and freight; but there is one rule in regard to tbe hypothecation of tbe cargo which does not apply to that of tbe ship and freight, and is so nearly universal in its operation as to require extraordinary circumstances to authorize its non-observance. That rule is, that before hypothecating tbe cargo, it is tbe duty of tbe master to communicate, or attempt to communicate, with its owner, if in tbe circumstances in which be is placed it be reasonable that be should, and rational to expect that be may, obtain an answer within a time not inconvenient with reference to tbe circumstances of tbe case.

This rule was sustained by tbe judicial committee of tbe Privy Council of Great Britain, in 1864, in the case of The Hamburg, (2 Maritime Law Oases, 1,) in terms so clear and so apposite to this case that we cannot do better than present them here. Sir J. T. Coleridge, in pronouncing the judgment of the committee, said:

“In the rule thus enunciated their lordships are unable to discern any novelty, either in the principal on which it rests, or in its application to the case of the hypothecation of the cargo of a ship by the master. The character of agent for the owners of the cargo is imposed upon the master by the necessity of the case, and by that alone. In the circumstances supposed, something must be done, gnd there is nobody present who has authority to decide what shall be done. The master is invested, by presumption of law, with authority to give directions, on this ground, that the owners have no means of expressing their wishes. But when such means exist,- when communication can be made to the owners, and they can give their own orders, the character of agent is not imposed upon the master, because the necessity which creates it does not arise. It is clear that the rule as to communication must be either that in no case and under no circumstances it is incumbent on him so to do ; either the universal negative or the particular affirmative proposition must hold, and both cannot be true, although one must be. But it has not been contended, and cannot reasonably be argued, that the first proposition is true. Where the cargo belongs to a single individual known to the master; the ship in a port in the same country, or near to it, in which that owner is resident; the means of communication sure and speedy ; the probable delay inconsiderable; the cargo not of a perishable kind; the money to be borrowed so large as to be sure to bring it within the operation of the bond, it could not be contended that the master could properly hypothecate it for the repairs of the vessel without first communicating with the owner. Equally clear it is that where all these circumstances were reversed, no such duty would be incumbent on him.”

Applying the doctrine thus stated to the case in hand, we find it in almost every particular directly applicable to it. True, the Othello was not in an American port, or in a port which could be strictly called near to the United States; but it was a port between which and the United States the means of communication were sure and speedy, being by steam vessels as well as sailing vessels; the probable delay resulting from attempted communication was not considerable; tire cargo belonged to one ' owner, and was not of a perishable kind; and the amount of money to be borrowed was so large as to be sure to bring the cargo within the operation of the bond. As evidence of the facility and speed of communication between St. Thomas and New York at that time, the fact appears in the record that on the 28th of December, 1865, sixteen days after the Othello put into the port of St. Thomas, the fact was made known by letter to the United States quartermaster at New York.

In the midst of these concurring circumstances, all pointing to the propriety and necessity of communicating, or, at least, attempting to communicate, with the owner of the cargo, as to its hypothecation, the master made no attempt at such communication, did not even mention the idea of it, so far as appears in evidence, to any one, but proceeded to hypothecate the cargo, as well as the vessel and freight.

Had the owner of the cargo been an individual, the master could not, under the circumstances, have imposed such a liability on his cargo; much less could he do so upon the government of the United States, against which the liability of the cargo under the bond could not be enforced in any court in the land by a proceeding in rem. The District Court held itself without jurisdiction to enforce the bond against the cargo belonging to the government; and the Circuit Court, on appeal, affirmed that decision.

What, then, is the claimant’s position here? He demands compensation for the detention of the vessel by legal proceedings which were cor am non judice as to the cargo, and which, as to the cargo, would never have been taken but for the act of his agent in hypothecating the cargo; which hypothecation was not only unauthorized because of his making no attempt before executing it to communicate with the owner of the cargo, but was incapable of enforcement against the cargo in any court of the country in which, if at all, it was to be enforced.

The detention so caused was not by the act of the government, ■ but by the claimant’s own act. Even supposing the master’s failure to communicate or attempt to communicate with the government to have been justifiable, he was chargeable with knowledge that the bond he gave could not be judicially enforced against the cargo anywhere in the United States, and that, therefore, his hypothecation of the cargo was only laying the foundation for difficulty on that score, the results of which would be fairly attributable to his own act. But even if not chargeable with that knowledge, still the fact remains that the detention of the vessel under judicial process was the consequence of his act, from which resulted the unauthorized proceeding against the cargo.

It is no answer to this to say that if the government had paid the share of the bond which it ought rightfully to have paid, the detention would not have taken place. That brings back the primary question of the legal authority of the master, under the circumstances, to hypothecate the cargo, and it rests upon the claimant to show that authority. He does not show it by merely proving the two facts, that the vessel was disabled, and that the master hypothecated her to get money to repair her. That is all that has been established here, and it is not enough to throw upon the government the responsibility and the consequences of the judicial detention of the vessel. During the period of that detention the vessel was not in the employ'of the government, nor was the claimant capable of using her in that employ; but, on- the contrary, she was out of, and effectually disabled from, employment, by the claimant’s own act, through the master. The consequences of that act must, therefore, rest upon himself.

The petition of the claimant is dismissed.  