
    THE IONA. SPEEDING et al. v. HARD et al.
    (Circuit Court of Appeals, Fifth Circuit.
    May 4, 1897.)
    1. Shipping—Custom op Poet—Delivery op Coppee.
    Evidence held to show a custom at the port of New Orleans that, in delivering coffee, the ship is to unload it on the wharf,' pile it on skids in separate lots according to the hills of lading, and there make delivery to the several consignees; but held, further, that there was no sufficient proof of any custom as to the length of time that the coffee shall be allowed to remain upon the wharves after unloading.
    2. Same—Charter Party—Cesser op Liability Clause.
    A provision in the charter party that charterer’s responsibility is to cease as soon as the cargo is all on board, and bills of lading signed, does not also operate to release the ship from responsibility at that time; and a provision in the charter party that cargoes are to be delivered according to the custom of the port still binds the ship.
    3. Same—Bills op Lading.
    Bills of lading which contain no reference to the charter party do not, as between the shipowner and the charterer, operate as new contracts, and their stipulations as to mode of delivery do not supersede the provisions of the charter party on the same subject.
    4. Admiralty Pleading—Amendments.
    An amendent to the libel, filed after the ship has been released on stipulation, setting up a claim not included in the original libel and not germane to the subjects thereof, cannot be allowed.
    Appeal from the District Court of the United States for the Eastern District of Texas.
    
      This was a libel in rem by Hard & Rand against the steamship Iona (Speeding, Marshall & Co., claimants), to recover the amount of certain exactions made by the master before he would consent to deliver cargo. The district court rendered a decree for libelants in the sum of $650.57, with interest, and the claimants have appealed.
    The libel in this cause is brought for the recovery of an amount of $468.75, which the master of the steamship Iona exacted from consignees before he consented to deliver cargo at New Orleans. These charges are for stevedores, for handling coffee from the end of ship’s tackle, for trucking and piling the same, and for watching cargo on the dock. The libelants paid these charges under protest, and now sue to recover them. The grounds upon which the action is based are that the charter party contains a clause providing that the cargo or cargoes shall be received and delivered according to the custom of the port of loading and discharging, and that, according to the custom of the port of discharging (New Orleans), libelants were entitled to have the cargo delivered upon the wharf to each consignee to whom bills of lading had been issued, with 48 hours for removal after discharge of the cargo. The respondents claim that they had the right to collect the charges in question for two reasons, to wit: (1) That bills of lading were issued, which superseded the charter party, both under its own terms and under well-established principles of law; and (2) because no custom has been established as claimed by the libelants. The libel in this cause was filed December 20,1893. The ship was released December 26, 1893. On February 17, 189-1, an amended libel was filed, claiming a further amount of $76.22, amount of certain other charges paid by libelants, the items of which will be found in the record. To this amended libel an answer was filed, substantially similar to the answer filed to the original libel. Upon the above issues testimony was duly taken, and after trial a decree entered in the lower court in favor of libelants for the sum of $606.57, with interest at 6 per cent, per annum from the date of the decree, March 18, 1896, Until paid. From this decree claimants prosecute this appeal. The errors assigned are as follows: (1) That the court erred in decreeing in this cause for libelants for any amount whatsoever, but should have decreed in favor of respondents in manner and form by them prayed for. (2) That libelants claim to recover in this cause for the reason that the charter party sued upon contains a clause providing that the cargo or cargoes shall be received and delivered according to the customs of the port of loading and discharging, and that according to the custom of the port of discharge, to wit, New Orleans, libelants were entitled to have the cargo delivered upon the wharf to each consignee to whom bills of lading had been issued, with 48 hours for removal after discharge of the cargo. That the court erred in sustaining said claim of libelants, for the reason that bills of lading were issued subsequent to and superseding the charter party both by its own terms and under well-established principles of law; that by'said bills of lading it was provided that the cargo should be delivered from the ship’s tackle, where the ship’s responsibility ceased. (3) That the evidence in this cause utterly fails to establish a custom in reference to the loading and discharging of cargo at the port of discharge, as claimed by libelants. (4) That the court erred in decreeing in favor of libelants upon the claim set forth in the amended libel, which libel was filed after said steamship had been released on stipulation, and upon a claim not germane to the claim set forth in the original libel, but entirely distinct from and independent thereof, and that libelants were without right by amendments to increase the liability of the stipulators, or of claimants or respondents, in a matter entirely disconnected from the subject-matter of the original libel, which said amended libel was duly excepted to on trial of said cause.
    E. B. Kruttschnitt, for appellants.
    J. Ward Gurley, Jr., and D. O. Mellen, for appellees.
    Before PARDEE and McOORMIOK, Circuit Judges, and NEWMAN, District Judge.
   PARDEE, Circuit Judge

(after stating the facts). This suit is founded on a charter party which contains, among others, the following provisions:

“The bills of lading to be signed without prejudice to this charter, and any difference to be settled before vessel sails.” “The cargo or cargoes to be received and delivered according to the customs of the ports of loading and discharge.” “Charterers’ responsibility to cease when cargo is all on board and bills of lading signed, but master or owners to have an absolute lien on cargo for freight, dead freight, or demurrage.”

The bills of lading issued to the charterers and others made no reference to the charter party, and contained, among other provisions, the following:

“To be delivered from the ship’s tackle, where the ship’s responsibility shall cease.” “The goods to be discharged from the ship as soon as she is ready to unload at the quay or into hired lighters, if necessary, but at the expense and risk of owners of the goods.” “Goods to be taken delivery of as soon as they can be discharged from the steamer, the goods to be and remain at consignee’s risk or expense immediately after being placed in the lighters or on the quay.”

The evidence in the case proves a custom in the port of New Orleans, in regard to the delivery of coffee, that the ship is to unload the coffee from the vessel onto the wharf, pile it upon skids in separate lots according to the bills of lading, and there make delivery to the several consignees. The ordinances of the city of New Orleans provide that all produce, wares, goods, and other articles landed on the wharves or levees by any vessel or other water craft shall be laid as near as possible to the paved part of the levee approaching the street, so that the bank of the river and wharves be neither obstructed nor incumbered thereby, and fix 48 hours as the longest time that said produce, goods, wares, or other articles shall be allowed to remain on the wharves or landings. We find in the evidence no sufficient proof of any custom in the port of New Orleans as to the length of time that coffee, after being unloaded from a ship, shall be allowed to remain upon the wharves.

The first contention of the appellants is that the effect of the “cesser of liability” clause in the charter party is to take away all right of action by owners or charterers on the charter party when cargo is all delivered on board and bills of lading signed. The cases cited in support of this contention (Sanguinetti v. Navigation Co., 2 Q. B. Div. 238; Gullischen v. Stewart, 13 Q. B. Div. 317) are conclusive as to the proposition that, after cargo is all on board and bills of lading issued, no right of action remains by the owners of the ship against the charterers upon a charter party which contains a “cesser of liability” clause in favor of the charterers; and very properly so, because that is the exact language of the clause itself. Under the charter party in hand, charterers’ responsibility is to cease as soon as the cargo is all on board and bills of lading signed; but, conceding this, it by no means follows that the responsibility of the ship, which in the main begins when cargo is loaded on board, shall also cease, and we find no adjudged cases asserting any such effect to be given such stipulation. Charter parties frequently contain important stipulations which are to be performed by the ship at the end of the voyage, and, unless it clearly appear from the contract that such stipulations are to be avoided on delivery of goods on board, no construction having that effect can be given to the cesser clause. The present charter contains a provision that goods were to be delivered according to the custom at the port of discharge, but of what use was it to insert such provision in the charter party, if all responsibility under the charter party was to cease when cargo was all on board? The same may be said of other provisions in the charter party in regard to the employment of a stevedore and the designation of wharf for unloading at the port of destination.

Appellants’ next contention is that the bills of lading, which contain no reference to the charter party, supersede all stipulations contained in the charter party in regard to .the delivery of the goods. This contention has been well examined, and, as sought to be applied in this case, we are satisfied it is not sound. "They [bills of lading] do not, as between the shipowner and the charterer, operate as new contracts or as modifying the contract in the charter party.” Carv. Carr. by Sea, 152, 159, 163; Abb. Shipp. 277; Pars. Adm. 286; Lamb v. Parkman, 1 Spr. 343, Fed. Cas. No. 8,020; The Chadwicke, 29 Fed. 521; Steamship Co. v. Theband, 35 Fed. 620; Gledstanes v. Allen, 12 C. B. 202; Faith v. East India Co., 4 Barn. & Aid. 630; Wagstaff v. Anderson, 5 C. P. Div. 177; Capper v. Wallace, 5 Q. B. Div. 166. See Leduc v. Ward, 20 Q. B. Div. 475, 479. This disposes of the first three assignments of error.

The fourth and last assignment of error is that the court below erred in decreeing upon the amended libel. The amendment is not germane to the claim set forth in the original libel, and it should not have been allowed. The Oregon, 158 U. S. 186, 15 Sup. Ct. 804; The Beaconsfield, 158 U. S. 303, 15 Sup. Ct. 860. The Charles Morgan, 115 U. S. 70, 5 Sup. Ct. 1172, treats of amendments in the appellate court, and holds that, to be allowed, they must be confined to the original subject of controversy. The decree of the district court should be amended by reducing the amount awarded to the sum of $521.90, the amount of principal and interest claimed in the original libel,—to date of decree below,—and as so amended the decree appealed from should be affirmed, the appellants to pay the costs of the district court, and the appellees the costs of appeal, including the costs of transcript. So ordered.  