DE WOLF 'V. TUPPER.
of the language, as well as the true intention, is, that the carrier is not to be licLble, in the sense of being accountable or responsible, for mOre than the invoice value of the goods damaged or lost. Where there is a partial injury, therefore, the damage is to be computed upon the basis of the invoice value of the goods damaged, because the invoice value is the extent of the value for which the carrier assumes responsibility. Whatever is realized for the damaged goods must therefore 1;>e credited upon the invoice value, the same as though the goods were abandoned to the carrier, and the sale of the damaged goods were made by him. In that case he would pay the invoice value, and would receive the proceeds of the damaged goods. It is immaterial by whom the sale of the damaged goods is effected: whether by the carrier or by the owner. The carrier's responsibility .is for the whole invoice value of the goods damaged, and no more; and the net proceeds of the sale of the damaged goods, over all charges and expenses, if received by the owner, must therefore go in diminution of the invoice price and freight, and the carrier must pay the difference. Such, in effect, was the judgment of the court in the case of The Lydian Monarch, supra, in which it was said, (page 300:) "If it should turn out that the libelant has received from the sale of the damaged goods the invoice price, after deducting the costs of importation, sale, etc., the libel will be dismissed." Such seems to me to be clearly the proper interpretation of this clause. Thus construed, I can perceive no reasonable objections to its validity. In effect, it only applies to damaged goods carried to the port of destination the same rule that has been long applied in courts of admiralty to the loss of goods at sea through collision; namely, that the value at the port of shipment, and not at the port of desti· nation, shall control. The Scotland, 105 U. S. 24, 25; The City of New York, 23 FED. REP. 616, 619. The result is that the libelant is entitled to $386.20, the difference between the invoice value of the goods damaged and freight, and the net proceeds of the sale of them together with interest and costs, for which judgment may be entered:
(District Court, S. D. :New Yor". June 11, 1885.)
PURCHASE OF VESSEL-LIABILITY FOP OUTFIT-AUTHORITY OF MAN..\GING OWNER -SUPPLIES. ·
By the terms of the contract under which the defendant T. was to acquire a one-eighth interest in the brig 0., then building by one P., the title would not pass to T. until the delivery of the brig, completed according to such contract. Before such delivery, libelant, on the order of P., who was afterwards managing owner, and who informed libelant that T. was a part owner, furnished
lRe"'>rled by R. D. & Edward G. Benedict, Esq·., of the New York bar.
an outfit for the vessel, which was charged to the brig and owners, and was delivered to the ship before'the title passed to T. The purchase was made without the knowledge of defendant T., who afterwards paid to P. the price of his one-eighth share, T. was afterwards informed of the purchase, but not that it was made in part on his credit. The evidence left it doubtful whether the price agreed on between P. and T. for the one-eighth interest was intended to cover the outfit. Red that, under the circumstances, P. had no authority to bind T. in the pUl'chasd of the outfit; that if T. was liable for the outfit it was solely to P" and subject to the stateof theirprivat.e accounts; that. for supplies furnished SUbsequently T. was liable, and a reference as to these was or. . , dered.
In Admiralty. Wilcox, Adnms d. J'facklin, for libelants· . Jas. K. IIill,Wing et Shondy, for respondents. BROWN, J. By t'he contract under which the defendant Tupper was to acquire a one-eighth interest in the brig Casiopeia, which was build- . ing by Captain Pettis, the title would not pass to him, and he would not become a part owner, until the delivery of the brig when com· pleted according to the contract. And1'CWS v. Durant, 11 N. Y. 35. By necessary implication, since she was to be complete in her hull and spars, this included the launching of the vessel; and she was not launched until September 26, 1874. In July or August previous, Captain Pettis came to New York and ordered through the libelants the purchase of the necessary outfit for the vessel, including all her standing and running rigging, chains, cables. anchors, etc. These were furnished by the libelants and forwarded in August before the launching of the ship. Captain Pettis, at the time, told the libelants that the defendant Tupper was one of the owners; and they charged the pl'ice of the outfit, amounting to some $6,000, to the brig and owners. The purchase, however, was made by the captain on his own responsibility, and without the knowledge of Mr. Tupper at the time, although it was communicated to him afterwards; but he was not informed that the outfit had been procured upon his credit. The libelants afterwards furnished various supplies to the ship until the beginning of 1878, always dealing with Captain Pettis alone, and the account gradually increased until in 1880, when the libel was filed, it amounted to upwards of $15,000, including $6,000 for the outfit in 1874. Although the libelants were pressing the captain for funds during these several years, the account was suffered to increase, as above stated, without any communication to Mr. Tupper, or any notice that they looked to him for payment of the outfit until April, 1878. The captain, in the mean time, had been acting as managing owner; and the other part owners becoming dissatisfied, a transfer of her management was made in 1877, and Captain Pettis at that time rendered his accounts, showing about $4,500 surplus to the credit of the ship. The liability of Mr. Tupper for the outfit must rest upon the authority of Captain Pettis to bind him as his agent at the time when the outfit was ordered. In my judgment, no legal authority to charge him as principal at that time existed in Captain Pettis. The
DE WOLF V. TUPPER.
vessel was not then launched. The contract by which he was to acquire the title was not, therefore, completed; the title of the oneeighth had not passed to Mr. Tupper; he was not at the time an owner, and as respects him, cYaptain Pettis was not yet in the position of a managing owner, authorized to bind another part owner for necessary supplies or equipment. In addition to that, the original outfit of the vessel is a part of her equipment in preparing her for navigation as much as completing her hull. Captain Pettis does not claim any authority to biridMr. Tupper, other than as ship's husband and managing 0 ;vner, and the evidence shows that he had no express authority. This was not sufficient at the time when the outfit was purchased by his order, and when it was forwarded and delivered by the libelants. The dealings between the parties, moreover, leave great doubt whether the price agreed on between Mr. Tupper and Captain Pettis was to include the outfit or not. From the written contract it would appearthat the outfit was not included; but that circumstance would not make Mr. Tupper liable to the libelants for the outfit ordered by Captain Pettis, without authority to bind Mr. Tupper. It is certainly remarkable, if the price of the outfit was not included in the original understanding, that for some four years afterwards no demand should ever have been made upon Mr. '.J;'upperfor his share of this outfit, in addition to the price of his interest, which he had promptly paid to Captain Pettis; nor any notice given him of his liability therefor either by Captain Pettis or by the libelants. If, however, the price of his one-eighth interest did not, as between him and Captain Pettis, include the outfit, his liability therefor was only to Captain Pettis, and it was therefore subject to the state of the account between them; an important consideration, inasmuch as Captain Pettis is insolvent, and is apparently a large debtor to the ship. Upon these grounds I must exclude the outfit from the libelants' claim upon Mr. Tupper. The sheathing of the vessel in New York, in November, 1874, was a charge apparently within the scope of the power of Captain Pettis to incur, at the joint expense of the owners. The other items of supplies furnished appear to have been in part made within the apparent authority of Captain Pettis, as captain and managing owner. As respects others, including all loans or drafts of Captain Pettis from other ports upon the libelants here, they are of doubtful authority, and require a detailed examination. If the parties do not agree, the residue of the account, excluding the outfit, must be sent to a commissioner, to take such proof as the parties may offer, in addition to that already taken, both as to the amount due, and as to the validity of the various items, as against absent owners.
May 27, 1885.)
(Dist1'ict 001trt, E. D. Virginia.
'rOWAGE-NEW YORK HARBOR-CANAL-BoAT.
In New York harbor, when the wind is from tllC north-east, blowing at the rate of about 22 miles an hour, there is no undue risk, and it is not a fault 011 the part of a tug to take in tow an open canal-boat luaded with soft coal down to 18 inches or two feet above the water, and tow her across the North river from Fifth, street, Hoboken, to the New York shore, and then along the protected New York shore, down around the Battery, to a point off pier No.1, East river. A wind of that velocity is neither a " gale" nor a "storm," but merely a .. brisk" wind, and, ,when from the north-cast, need not suspend navigation in New York harbor during its prevalence.
SAME-SINKING OF CANAL-BOAT-NEGLIGENCE.
Held, on the evidence in the case, that the sinking of the canal-boat 1.1. was caused by her own unseaworthiness, through leaks in her bottom,-a fact carefully concealed by her master from the master of the tug,-and was not caused by her shipping in water over her comiJings from the rough sea in the river, as alleged by libelants.
Libel in rem, in Admiralty. Sharp a: lIughes, for libelants. White r1: Garnett, for petitioner and co-libelant. Whitehurst a: Hughes, for the Snap. HUGHES, J. The first of these suits is a libel by the owners of 250 tons of soft coal lost upon the canal-boat Martha, while in tow of the tug Snap. The other is a libel by the owner of the Martha, Michael Downs, for the value ofthe canal-boat, which was sunk in the East river, near the Battery, New York, on the twenty-sixth day of June, 1884. The Martha had been taken in tow by the Snap at Fifth street, Hoboken, some time after 9 o'clock on that morning, had been towed across the North river to a point opposite Desbrosses street, and had been thence taken down along the piers of North river around the Battery, beyond East river pier No.1, to the place of sinking. The sinking ·occurred within an hour after the departure from Hoboken, probably about 10 :15 A. lIf. The Martha had 'Jeen loaded with coal about 17 days before the twenty-sixth of June, and had been moored at Hoboken ever since, and had lain there, sometimes afloat, but much of the time resting on the mud at the bottom of the river or dock. She was an old boat and had been frequently repaired. Just before the last load of coal had been put upon her, she had sprung a leak by the starting of one end of a plank under the port bow, which was repaired by her owner, Michael Downs, while she was lying on the mud. Her bottom does not seem to have been examined during the time she was loaded with coal. She was in charge, during these 17 days, of a man by the name of Flaherty, whom the evidence shows to have been a worthless, faithless, false person. No faith can be