1. The liability of a ship as surety for damage resulting from
her unseaworthiness to a shipment undertaken by her charterer is
released
Page 270 U. S. 254
by a compromise between the shipper and charterer discharging
the primary obligation of the latter. P.
270 U. S.
257.
2. A chartered ship is not liable for damage to a shipment from
unseaworthiness when the unseaworthiness was caused by her
conversion by the charterer and shipper to a use not authorized by
the charter party. P.
270 U. S.
258.
3. The existence of admiralty jurisdiction cannot be established
conclusively by allegations in the libel, but depends upon the
facts as revealed in the case. P.
270 U. S.
258.
4. Admiralty jurisdiction over a libel based on maritime
contracts is not defeated by the bringing in of nonmaritime
contracts by way of defense. P.
270 U.S. 259.
297 F. 813 affirmed.
Certiorari to review a judgment of the circuit court of appeals
which affirmed a judgment of the district court dismissing the
libel in a suit
in rem brought by Armour and Company
against the steamship
Fort Morgan to collect damages to
cargo alleged to have been due to the unseaworthiness of the ship.
The Fort Morgan Steamship Company defended as claimant and
impleaded the Central American Cattle Company.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This libel was filed on January 25, 1918, by Armour & Co.,
against the steamship
Ft. Morgan in the Federal District
Court for Eastern Louisiana. Recovery was sought for loss and
damage to a shipment of 420 head of cattle received by the ship at
Port Limon, Costa, Rica, for delivery at Jacksonville, Florida. The
charge was that unseaworthiness had caused her to list so heavily
as to compel return to port and abandonment of the voyage,
Page 270 U. S. 255
and that thereby half of the cattle were killed and the rest
seriously injured. The libel alleged that the vessel was engaged as
a common carrier between the ports named, that the cattle belonged
to the libelant, that the bill of lading signed by the master was
issued after delivery of the cattle on board. The copy of the bill
of lading annexed to the complaint was signed "The Central American
Cattle Co., Inc., by Thomas Johannesen, Master S.S.
Ft.
Morgan." It recited: "Freight prepaid as per contract, subject
to livestock agreement."
The owner made claim, impleaded the cattle company, and showed
that the actual transaction was very different from that set forth
in the libel. The shipment was an incident of a contract made
October 3, 1917, by the cattle company with Armour & Co. to
procure in Central American countries about 25,000 head of cattle
and sell them to Armour & Co.; to assemble these from time to
time at Port Limon for rest, inspection, and loading; to charter
and equip two steamers, and by means of these vessels to transport
the cattle from Port Limon to Jacksonville and make delivery there.
The contract provided further for attendance of an Armour
representative at the inspection, grading, weighing, and loading at
Port Limon; that the vessels should carry only cattle for Armour
& Co., and that a supercargo representing them should have
supervision over the care of the cattle during the voyage. It fixed
the price per pound to be paid for different grades of cattle and
the freight per head, and provided that payment of the purchase
price and the freight be made at New Orleans upon receipt of cable
advice from the Armour representative.
The
Ft. Morgan had been chartered by the cattle
company. She listed when she left Port Limon, and had to return to
port and abandon the voyage. But she had been seaworthy when
delivered to the cattle company as charterer, and was thereafter.
The loss is claimed to
Page 270 U. S. 256
have resulted from the abuse of the ship by the cattle company,
under the supervision of Armour & Co.'s supercargo. The charter
party, entitled a "Time Charter -- West India Fruit Trade,"
provided the privilege of and facilities for erecting a light fruit
deck to carry a load of fruit. At Port Limon, she was, without the
consent of the owner, converted into a cattle ship. On the deck,
authorized as a fruit deck, cattle pens were constructed and the
heavy cattle were loaded. Freight had not been paid when the bill
of lading issued, nor was it ever paid. No payment for the cattle
was ever made under the contract. After the voyage was abandoned,
the cattle company brought suit against the Armours at New Orleans.
Later the parties entered into an agreement to settle their
differences out of court. The compromise provided for a new trade
arrangement, for holding on joint account the surviving 200 head of
injured cattle then at Port Limon, and for the payment by the
Armours of $19,000 upon performance by he cattle company of
conditions set forth in the new agreement. Seven days later, this
libel was filed. There was no reservation of right under the bill
of lading, or of any rights against the ship. Through
investigations incident to the defense, the owner first learned the
facts.
The district court dismissed the libel with costs, finding the
facts substantially as stated above. The libelant had insisted that
the ship was liable because the master had signed the bill of
lading, and that, having been unseaworthy, she would have been
liable even without such signing, since the master had received the
cattle on board. The court held in an unpublished opinion that,
while the vessel would ordinarily be liable for any damage
resulting from unseaworthiness, there could be no recovery in this
case because the unseaworthiness had resulted from the conversion
of the vessel into a cattle ship; that this conversion involved a
change in the charter party, which
Page 270 U. S. 257
the master was without authority to make,
Gracie v.
Palmer, 8 Wheat. 605,
21 U. S. 639;
that the owner could not be subjected thereby to liability; that,
moreover, under the terms of the charter party, the owner would be
entitled to be indemnified by the charterers for any judgment in
favor of Armour & Co.; that the compromise made by Armour &
Co. with knowledge that the vessel was chartered barred this suit,
and that, in any event, recovery could not be had on the
allegations of the libel.
The circuit court of appeals affirmed the judgment of the
district court. 297 F. 813. It held that the bill of lading,
although signed by the master, did not indicate a purpose to bind
the ship; that this fact, taken in connection with the preexisting
contract, required the conclusion that the shipper's contract of
affreightment was only with the cattle company, and that, under
these circumstances, the ship could not be held. That court did not
pass upon or discuss the grounds of decision adopted by the
district court. Nor did it refer to the well established rule that
the ship is ordinarily liable to the shipper upon an implied
warranty of seaworthiness, although a bill of lading signed by the
charterer is given.
See The Carib Prince, 170 U.
S. 655,
170 U. S. 660;
The Esrom, 272 F. 266. A petition for a writ of
certiorari, sought on the ground that this basis of liability had
been ignored, was granted. 266 U.S. 597. The respondent had not
opposed the granting of the writ, and it did not attempt here, in
the brief and argument on the merits, to support the ground of
decision stated by the court of appeals. It insisted that the
judgment should be affirmed substantially for the reasons stated by
the district court.
The suit is brought to enforce the lien or privilege against the
vessel which the maritime law gives as security for the contract of
affreightment. The contract contained in the bill of lading was
that of the cattle company. The bill of lading, which was signed by
that company,
Page 270 U. S. 258
is not to be treated as an isolated transaction. It referred to
a contract between the parties. It was in fact given in part
performance of the obligations assumed by the cattle company by the
original contract to purchase the cattle, assemble them at Port
Limon, sell them to the Armours, and transport them to
Jacksonville. The compromise agreement substituted new rights and
obligations for the obligations assumed by, and the liabilities
incurred under, the original contract. Thereby it discharged the
primary liabilities of the cattle company to the Armours under both
the original contract and the bill of lading to carry safely the
cattle from Port Limon to Jacksonville. The discharge of this
primary liability necessarily discharged also the liability of the
ship as surety for the charterers' obligation set forth in the bill
of lading. For this reason, and also because of the facts found by
the district court concerning the unauthorized conversion of the
vessel into a cattle ship with the participation of the Armours,
the libel was properly dismissed.
An objection to the jurisdiction taken by the owner both here
and below must be noticed. On the face of the libel, there was
confessedly admiralty jurisdiction. The contention is that the
facts developed later disclosed a transaction not wholly maritime,
and that, for this reason, the libel should have been dismissed
under the rule declared in
Grant v.
Poillon, 20 How. 162,
61 U. S.
168-169. The district court stated that it was "inclined
to agree with the contention," but apparently did not pass
definitely upon the matter. The circuit court of appeals did not
mention the objection. The decree entered was a general one,
dismissing the libel, as on the merits. If there was no
jurisdiction, the decree should have recited that ground of
dismissal, so as to be without prejudice.
The case is not of that class where the existence of
jurisdiction is conclusively determined by the first pleading of
him who institutes the suit.
Compare 37 U.
S.
Page 270 U. S. 259
Mathewson, 12 Pet. 164;
Boston & Montana Mining
Co. v. Montana Ore Purchasing Co., 188 U.
S. 632. Jurisdiction in admiralty cannot be effectively
acquired by concealing for a time the facts which establish that it
does not exist.
Compare Lambert Run Coal Co. v. Baltimore &
Ohio R. Co., 258 U. S. 377,
258 U. S. 382.
We must therefore consider whether the facts developed after the
filing of the libel preclude the exercise of admiralty
jurisdiction. The bill of lading and the charter party are both
maritime contracts, and hence enforceable in a court of admiralty.
Morewood v.
Enequist, 23 How, 491;
The
Eddy, 5 Wall. 481,
72 U. S. 494.
The original contract to purchase, assemble, and sell the cattle,
to charter vessels, and therein transport the cattle to
Jacksonville, and the agreement of compromise, are not maritime
contracts.
The Richard Winslow, 71 F. 426;
The
Ada, 250 F. 194. Both the original contract and the compromise
agreement are referred to in order to establish the fact that the
obligation for which the ship was surety had been discharged. The
original contract was referred to also to explain the relation of
the shipper named in the bill of lading to the charterer, and in
order to establish that, by reason of their cooperation in
converting the vessel into a cattle ship, there was no liability.
Such uses of nonmaritime contracts to establish the absence of a
valid maritime claim, or a defense as distinguished from a
counterclaim
* (
see The
Eclipse, 135 U. S. 599,
135 U. S. 609), do
not deprive
Page 270 U. S. 260
the admiralty court of jurisdiction. No party to this suit
sought to enforce any right under either of the nonmaritime
contracts.
Affirmed.
MR. JUSTICE STONE took no part in the decision of this case.
* Also
Willard v. Dorr, 3 Mason, 161, 171;
Southwestern Transp. Co. v. Pittsburg Coal Co., 42 F. 920;
United Transp. & Lighterage Co. v. New York & Baltimore
Transp. Line, 185 F. 386;
Andersen & Co. v.
Susquehanna S.S. Co., 275 F. 989, 991,
aff'd in
Susquehanna S.S. Co. v. A. O. Anderson & Co., 6 F.2d
858.
Compare The Electron, 48 F. 689;
Meyer v. Pacific
Mail S.S. Co., 58 F. 923. The application of admiralty Rule 56
is limited by similar considerations of jurisdiction.
The
Goyaz, 281 F. 259;
Aktieselskabet Fido v. Lloyd
Braziliero, 283 F. 62;
Reichert Towing Line v. Long Island
Machine & Marine Const. Co., 287 F. 269.
See also Red.
Cross Line v. Atlantic Fruit Co., 264 U.
S. 109,
264 U. S.
123.