Propeller Mohawk
75 U.S. 153 (1868)

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U.S. Supreme Court

Propeller Mohawk, 75 U.S. 8 Wall. 153 153 (1868)

Propeller Mohawk

75 U.S. (8 Wall.) 153

Syllabus

1. Where insurers to whom the owners have abandoned take possession at an intermediate place or port of goods damaged during a voyage by the fault of the carrier, and there sell them, they cannot hold the carrier liable on his engagement to deliver at the end of the voyage in good order and condition.

2. Facts stated which amount to such action on the part of the insurers.

3. Insurers, so accepting at the intermediate port, are liable for freight pro rata itineris on the goods accepted.

4. The explosion of a boiler on a steam vessel is not a "peril of navigation" within the term as used in the exception in bills of lading.

Page 75 U. S. 154

5. The Court expresses its satisfaction that it could, in accordance with principles of law, decide against a party who had bought and was prosecuting a claim that the original party was not himself willing to prosecute; it characterizes such a purchaser suing as "a volunteer in a speculation."

On the 31st of October, 1860, two parties, owners of it, shipped on board the propeller Mohawk, the vessel being then at Chicago, and as was admitted in a stipulation of record, "in good and seaworthy condition," two consignments of wheat, amounting to 20,200 bushels, to be delivered at Buffalo in good order and condition, dangers of navigation excepted, upon payment of freight and charges. The property was insured by an insurance company at the last-named place for $20,000. The propeller proceeded on her voyage, and after the same had been more than half completed, grounded on the 7th of November on the St. Clair Flats, near Detroit. In the effort to get her off she became disabled by the bursting of her boiler, and afterwards sunk, and was compelled to suspend her voyage for a few days to make necessary repairs.

All the wheat but 1,100 bushels got wet and was damaged by the sinking of the propeller. Upon information then given to the consignee and insurers at Buffalo, the agent of the owners of the wheat immediately abandoned it to the underwriters as for a total loss, and the latter then accepted the abandonment and paid the loss to the owners as for a total loss.

On the 11th of November, the underwriters ordered their agent at Detroit to take possession of the damaged wheat, and to sell it as it lay in the vessel at the flats, and the agent thereupon did sell the damaged portion of it to one Phelps, for $1,200, and took his note therefor, at 30 days. A delivery into lighters to the purchaser began on the same day. The next day (the 12th) the agent reported the sale, and on the 13th received a telegram from his company acknowledging the advices, and approving thereof. After the sale had been

Page 75 U. S. 155

thus made, the company hearing that the master intended to claim freight, directed the agent to have nothing to do with the grain, unless the owners of the vessel would relinquish all claim for freight. It was arranged, however, between the agent and the master, that as the sale was a good one, it should stand, and that the freight should be left for after consideration. The whole of the damaged portion of the cargo, amounting to 19,100 bushels, was delivered by the propeller to the purchaser, Phelps, and the residue, 1,100 bushels, was retained on board, and carried by the propeller to Buffalo, where it arrived safely. On that residue the insurance company tendered full freight and all other lawful charges, including a sum to cover general average charges, but refused to pay either pro rata or full freight on the wheat delivered on the flats. The master accordingly refused to deliver the 1,100 bushels; the value of it being less than the freight on it and the pro rata freight on the larger quantity sold; and he asserting that he was entitled to freight on the entire shipment, either in full, or pro rata.

Soon after this (though with how correct a knowledge of facts was a matter, as it seemed, subsequently disputed by counsel), the counsel of the insurance company on the one hand, and of the shippers on the other, agreed upon a statement of facts, and on it the company brought suit in the Superior Court of Buffalo, to test the liabilities of the shippers upon the facts as then supposed. The insurance company, however, acting herein against the urgency of their agent at Detroit, "who never expressed but one opinion, which was, that the carriers were liable and ought to be sued," after some time discontinued this suit.

After this -- this is to say in July, 1862, and through the same agent -- the claim of the company on the carriers was sold to one Barrell, for about $2,300.

Libels were now filed, August, 1862, in the District Court of Illinois in the names of the owners of the wheat, claiming damages for the nondelivery of it. After hearing, the libels were dismissed. Thereupon an appeal was taken to the circuit court.

Page 75 U. S. 156

Barrell now presented his petition to that court, stating that the underwriters had assigned their interest in the cargo to him, and that he was equitably interested and entitled to intervene, and have the benefit of both of the above libels. On this petition, the circuit court consolidated both causes, and made order that he be subrogated to all the rights of the libellants, and that he have leave to file an amended libel. He did accordingly file such a libel, alleging the shipping of the cargo on board the Mohawk; that the propeller left port in good and seaworthy condition, and that after the voyage was more than half completed she was carelessly grounded on the St. Clair Flats. He also alleged the abandonment, and averred that the underwriters had suffered damages on account of the injury to the wheat, as well as for the nondelivery of the 1,100 bushels detained by the propeller; and that he, as assignee of the insurance company, was entitled to recover therefor.

To this libel answer was made, denying negligence in grounding the vessel; admitting the nondelivery of the 1100 bushels of wheat, and asserting a right to hold it for freight; both that earned on the wheat actually delivered at St. Clair Flats, and on the 1,100 bushels transported to Buffalo; abandonment was admitted; any assignment from the insurance company was denied; and the character of that transaction set forth with allegations, in substance, that it savored of maintenance. The substance of this answer was also proved.

The note at thirty days for $1,200, given by the purchaser Phelps, was still in possession of the insurance company.

The circuit court affirmed the decree of the district court, and the case was now here, on the action of Barrell, for review.

The appellant made two claims:

1. To have damages for injury to the cargo by the sinking of the propeller.

2. To have the 1,100 bushels which the propeller had retained,

Page 75 U. S. 157

or their value, upon paying the freight earned on that parcel only.

Page 75 U. S. 159

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