1. The law creates no maritime lien on a vessel as security for
the performance of a contract to transport a cargo unless some
contract of affreightment has been made.
2. Such a contract cannot be implied against a transportation
company from the fact that a man has loaded a barge belonging to
the company, by means of his own men, without any knowledge by the
company of what he has done, and then delivered bills of lading to
the agent of a steamer of the line, the agent at the moment being
very much engaged with other matters, just before the steamer,
which it was expected by the shipper would tow the barge, sets off,
no sufficient statement being made by the shipper, when so
delivering the bills, what bills they are, and the agent himself
having no knowledge of what has been done in the particular case
nor of the contents of the bills.
The La Crosse & Minnesota Steam Packet Company were, during
the year 1865, owners of the steamer
Keokuk and of several
barges, including one named the
Farley, which were running
on the Mississippi River between La Crosse and Winona, and engaged
in carrying freight. On the 23d of October, in that year, the
Keokuk towed the barge
Farley to Winona, and left
her moored at the dock at that place, not however in anyone's
charge. On the 27th, at about five o'clock in the afternoon, one
Robson, a shipper at Winona, getting on the barge, took her to the
elevator nearby, and with his own men loaded her with wheat to be
shipped to La Crosse. He did not ask permission of the master of
the
Keokuk to load the barge, nor inform either him or any
other person of his intention to load her. He had, however,
previously, at times, taken possession of barges and loaded them,
and they were afterwards towed by the packet company to La Crosse;
he had done this by permission of the officers of the packet
company, but had never had permission to do it from the captain
then in command of the
Keokuk.
The
Keokuk did not arrive at Winona from La Crosse
Page 76 U. S. 518
that night until after dark. The night was a very stormy night,
and it was snowing hard. The vessel landed at what was known as the
lower landing, about fifty rods from the elevator, where the barge
then was, and after unloading, put off again at about twelve
o'clock at night for La Crosse. While the boat was laying where she
was, the bookkeeper of Robson came to her second clerk, who was
"very busy checking off freight," in the dark in the storm, a
lantern in one hand and his book in the other, and handed to him
two papers, saying, "Here are the bills of that barge." The clerk
took them with some assenting remark, and put them in his pocket
without opening them, "so that the rain should not spoil them."
There was no explanation what bills the bills were, and nothing
further took place between the parties. No book was presented to
the clerk to sign and no receipts asked for. This clerk
subsequently laid the bills on the first clerk's desk in the boat,
the place where he usually put bills. He was not positive, but he
thought that when he put them there he said to the first clerk,
"Here are those bills." He did not himself know their contents. No
other notice than that already mentioned was given to the officers
of the boat that the barge had been loaded, and none of the
officers was aware of the loading of the barge until they were
one-third of the way back to La Crosse. The papers were then
discovered to be memorandum bills of lading of the barge. The barge
was not watched by Robson, and in the morning it was found sunk at
the dock where he had left it. Thereupon Robson filed a libel in
the District Court of Wisconsin against the steamer, the barge, and
the packet company, charging that the barge was unseaworthy and
that the cargo was lost by carelessness of the master and officers
of the steamers. There was no proof to sustain the charge of
unseaworthiness.
The district court decreed for the libellant; the circuit court
affirmed the decree. The packet company appealed.
Page 76 U. S. 519
MR. JUSTICE DAVIS delivered the opinion of the Court.
It is a principle of maritime law that the owner of the cargo
has a lien on the vessel for any injury he may sustain by the fault
of the vessel or the master, but the law creates no lien on a
vessel as a security for the performance of a contract to transport
a cargo until some lawful contract of affreightment is made, and
the cargo to which it relates has been delivered to the custody of
the master or someone authorized to receive it.
* The inquiry then
arises whether there was any contract to carry the wheat in
question, and, if so, was the barge containing it delivered to the
custody of the steamer? It is very clear, had the steamer taken the
barge in tow, the lien would have attached, although the bills of
lading were not executed, because the act of towing the barge would
be evidence that the grain was received, and
Page 76 U. S. 520
that there was a contract to carry it safely. And the steamer
would be equally liable if the barge had been left at the landing
by the fault of the officers of the boat. But the evidence not only
fails to prove this, but establishes the contrary conclusion. The
only witness on the part of the libellant, whose testimony has any
bearing on the subject, is his bookkeeper. He says, that on the
night in question he gave to the second clerk of the steamer, who
was on the levee checking freight, two bills of lading, with the
statement (of this he is not positive), "These are the bills of
that barge," to which the clerk made some assenting remark. But the
clerk denies that he knew the contents of the papers when handed to
him, or that anything was said at the time from which he could
infer their contents. And his subsequent conduct shows that the
observation of the bookkeeper, if any was made, failed to arrest
his attention, for he put the papers in his pocket and remained on
the levee until he had completed his work, and afterwards, without
examining them, placed them in the condition in which they were
received by him on the desk of the first clerk.
If he is not mistaken in his recollection, that the first clerk
was present on the occasion, and that he told him "here are the
bills" (which is very doubtful from the evidence), yet it is
manifest the first clerk attached no importance to the bills, for
he did not notice them until after daylight, when the
Keokuk was far on her way to La Crosse. Each clerk,
doubtless, acted on the supposition that the other knew to what
particular freight the bills related, but it seems both were
equally uninformed concerning them. It is not pretended that in any
other way than this, was any information conveyed to anyone
connected with the boat of the intended shipment of grain by the
libellant. Neither the master, nor any person on the steamer, or in
the employment of the company, had notice that he had taken the
barge and loaded it with grain, or that he contemplated doing so.
If it be conceded the course of business between the two parties
justified him in taking possession of the barge and loading it,
without the direct permission of the master, yet it falls far
Page 76 U. S. 521
short of showing that the barge, when loaded, was considered in
the custody of the steamer without notice to any of her officers.
Indeed, it would be unreasonable to suppose the parties dealt with
each other on any such understanding, for it would place the
advantage altogether on the side of the shipper, who would be
relieved of care and risk as soon as the barge was filled with
grain, and the master could exercise no discretion about receiving
it.
As there was, then, no agreement in this case which changed the
legal rights of the parties, it is clear the steamer is not subject
to a maritime lien. The wheat and barge were, at the time of the
accident, in the control of the libellant, and their custody was
not changed by handing unsigned bills of lading to the second clerk
of the steamer, who did not know their contents, nor had any reason
to suppose they related to the barge
Farley. It was the
misfortune of the libellant that he transacted his business so
loosely, and if it be the corporation is somewhat to blame for
this, the steamer has not on that account committed any fault for
which she is chargeable in admiralty. As no one in her behalf
contracted with the libellant to transport the barge to La Crosse,
and as he did nothing to transfer the possession to the steamer,
the libel cannot be sustained.
The case of
Bulkley v. Naumkeag Cotton Company is cited
in opposition to the views we have presented, but it is not
applicable. There the goods were delivered to a lighter in the
control of the ship; here, the shipper took control of the barge,
and did not deliver either barge or cargo to the steamer.
The decree of the circuit court is reversed and this cause
is remanded to that court with directions to dismiss the
libel.
*
Schooner Freeman v.
Buckingham, 18 How. 188.
