The owner was obliged to collect all the bill of lading freight in order to cover the charter money due it and pay the master's draft drawn at New Orleans in favor of the charterer. Freight on the deck load as between it and the charterer was neither ascertained nor provided for in the charter party, and the owner was not given a lien upon it to secure whatever claim it might have. Therefore the cesser clause does not apply. Finally, the charterer says that the court should not permit the owner's claim because it is inequitable. It contends that the owner has received full freight for the dead weight capacity of the vessel and the deck load imposed no additional burden upon it. But a charterer has no right to load on deck unless the charter gives him the privilege (Carver on Carriage by Sea, § 262), and no such privilege was given in this case. It could not acquire the right to load on deck because it had paid freight for the full dead weight capacity of the vessel, all of which it did not use, even with the deck load included. No court can alter anything in or add anything to a contract because it thinks to do so would be reasonable. The assumption of such an authority would dangerously invade the rights of contracting parties. The charterer, having used a part of the vessel to which it had no right, must pay the owner for it. This leads us to inquire how the compensation is to be measured. The charterer in this case cannot be regarded as a wrongdoer because the master did not refuse to receive the lumber on deck; he taking the position that, while the charter did not allow a deck load, the owner could sue the charterer for compensation. For the same reason the charterer cannot be regarded as a trustee for the owner in respect to the freight collected from the consignees. The libel recognized these propositions by asking to recover a reasonable freight, and by so doing waived any objections it might have had to the loading of cargo on deck. We do not think The Port Adelaide (D. C.) 59 Fed. 172, in point. There the charterer was entitled to the whole vessel. Nevertheless the owner without the knowledge or consent of himself or his agents took on cargo in an adventure on his own account and deviated from the voyage. This plainly made him accountable as trustee, at the option of the charterer, for all the freight earned. In the present case, the charterer contends that it should pay only the reasonable value of the use of the deck. That value cannot be the market rate of freight which the owner could recover by putting the space in the market, because it was not entitled either to use the space itself or hire it to others. The charterer was the only person in the world the owner could deal with. It had already paid for the voyage in the lump freight on the vessel's dead weight capacity. What the owner should receive for this deck space which could have been used by no one else is certainly not the market rate of freight, nor what this favored person could collect from others. The evidence is not specific upon this point, but the highest estimate in the record is £200, and this with interest plus $70, the expense of lashing the lumber, is what the charterer should pay. So modified, the decree is affirmed, with interest and costs of this court to the appellant. (243 Fed. 536) CHELENTIS v. LUCKENBACH S. S. CO., Inc. No. 223. SEAMEN 11-INJURY IN SERVICE-MEASURE OF RECOVERY. The rights of a seaman, injured in the service of the ship, are the same, by virtue of the inherent nature of his contract, whether he sues in a court of admiralty or of common law, and his recovery is limited to his wages to the end of the voyage and the expense of his maintenance and cure, regardless of the question of negligence or contributory negligence; and this rule is not changed by Seamen's Act March 4, 1915, с. 153, § 20, 38 Stat. 1185 (Comp. St. 1916, § 8337a), providing that "in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow servants with those under their authority." In Error to the District Court of the United States for the Southern District of New York. Action at law by Peter Chelentis against the Luckenbach Steamship Company, Incorporated. Judgment for defendant, and plaintiff brings Silas B. Axtell, of New York City (F. R. Graves, of New York City, of counsel), for plaintiff in error. Carter & Carter, of New York City (Peter Carter, of New York City, of counsel), for defendant in error. Before WARD, ROGERS, and HOUGH, Circuit Judges. WARD, Circuit Judge. This was an action at common law by a seaman employed on the steamer J. L. Luckenbach against her owners to recover damages for personal injuries sustained by him on his second voyage. The only charge of negligence in the complaint as to which there was any proof was as follows: "* * * Because said defendants and said persons in their service having command negligently and unlawfully compelled plaintiff to carry an ash bag across an open and exposed deck on board said vessel during a severe storm and while the waves were calculated to and did break over the same, plaintiff, although himself in the exercise of due care, was suddenly and without warning struck by a wave with great violence and precipitated from his feet, thereby sustaining severe, painful, and permanent personal injuries, as hereinafter more particularly set forth." The plaintiff sued for full indemnity, and on the trial declined to make claim for wages to the end of the voyage and expenses of cure and maintenance for a reasonable time thereafter, insisting that by virtue of section 20 of the Seamen's Act of March 4, 1915, he was entitled to full indemnity and to go to the jury on the question of the defendant's negligence and of his own contributory negligence. This section reads: "Sec. 20. That in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow servants with those under their authority." For other cases Lee same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Judge Manton directed a verdict for the defendant, relying on the decision of the Supreme Court in The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760. December 26, 1915, the plaintiff, Chelentis, a fireman, was in the watch of Snell, the second engineer, 12 to 4 a. m. At 4 a. m. he came on deck, in accordance with the regular practice, to rest for half an hour and then with his mate to take the ashes raked from the fires by the 4 to 8 watch and put into bags lifted by machinery from the stokehole to the grating in the fireroom level with the deck. One man would take a bag off the hoist and deliver it to his mate, to be carried by him through the port door of the fireroom out on deck and dumped over the port side. The only ash hoist was on the port side and there was a coal bunker running across the grating in the fireroom from side to side. The cross bunker did not prevent any one from going through the port door of the fireroom to the port side, but if the bags were to be dumped on the starboard side a third man would be needed, viz., one to take the bag from the hoist and deliver it to another, to carry it to and pass it over the cross bunker to a third, to carry it from there to the door on the starboard side and dump it over. At 4:30 a. m. the plaintiff and his mate went to the engineroom and asked Keyser, the first assistant engineer in charge of the watch, to give them a third man, so that they could dump the ashes over the starboard side, the sea being so high on the port side as to make it dangerous to dump them there. This they testified he refused, with oaths, and drove them out of the engineroom, ordering them to do the work as usual. As the plaintiff was returning to the ash hoist after emptying his first bag over the port side, a wave struck him and carried him over to the starboard side, causing him very severe injuries. The defendant contended that Snell should have been on deck supervising this operation of dumping the ashes by the men in his own watch, and that the plaintiff was not in Keyser's watch or subject to his orders. But the evidence is that Keyser was giving him orders, and we are clear that Snell's watch were bound to obey him. After the accident three men were employed and the ashes were dumped over the starboard side. December 27th the steamer arrived in port and the plaintiff was taken to the Marine Hospital, where he remained three months and four days; it being found necessary to amputate his right leg six inches above his knee. The contract of a seaman is maritime, and has written into it those peculiar features of the maritime law that were considered in the case of The Osceola, supra; and although, because of these peculiarities, such contracts are almost invariably litigated in admiralty courts, still the contract must be the same in every court, maritime or commonlaw. The only difference between a proceeding in one court or the other would be that the remedy would be regulated by the lex fori. If a seaman, who had been locked up or put in irons for disobedience of orders, were to sue the master for damages in a court of common law, he could not recover like a shore servant, such as a cook or chauffeur, who had received the same treatment. So a seaman, bringing suit in a common-law court for personal injuries, could recover, even if guilty of contributory negligence, although a shore servant, suing in the same court, could not; and a seaman, suing in a common-law court for personal injuries, could recover (except in the case of unseaworthiness of the vessel or failure to give proper care and medical attention) only wages to the end of the voyage and the expenses for maintenance and cure for a reasonable time thereafter, whereas in a similar case a shore servant would be entitled to recover full indemnity. Therefore, by virtue of the inherent nature of the seaman's contract, the defendant's negligence and the plaintiff's contributory negligence were totally immaterial considerations in this case; the sole question for the jury to determine being whether the plaintiff was entitled to recover because he had not received from the defendant his wages to the end of the voyage and the expense for his maintenance and cure for a reasonable time thereafter. Has Congress changed the situation by section 20, of the Seamen's Act, supra, as the plaintiff contends? He argues that the act makes the master a fellow servant of the seaman, and therefore that Congress intended to make the relation between the seaman and all the officers throughout the same as at common law. But the Supreme Court, in the case of The Osceola, supra, while reserving the question whether the master and seaman were fellow servants, held that it made no difference whatever in respect to the liability of the shipowners for an improvident order of the master which resulted in personal injuries to the seaman. This was the precise question decided. The facts were that the master ordered a gangway to be hoisted by a derrick and swung outboard when the steamer was proceeding in a strong head wind, so that she might be ready for an immediate discharge of the cargo on arrival. The gangway, as soon as it swung clear of the side, was turned broadside by the wind and threw down the derrick, which struck and injured the libelant. The first and third questions certified to the Supreme Court were answered, "No": "First. Whether the vessel is responsible for injuries happening to one of the crew by reason of an improvident and negligent order of the master in respect of the navigation and management of the vessel." "Third. Whether as a matter of law the vessel or its owners are liable to the appellee, Patrick Shea, who was one of the crew of the vessel, for the injury sustained by him by reason of the improvident and negligent order of the master of the vessel in ordering and directing the hoisting of the gangway at the time and under the circumstances declared; that is to say, on the assumption that the order so made was improvident and negligent." It follows that whether the master and seaman are follow servants or not is quite immaterial in the case of a suit for injuries resulting from an improvident order of the master. For this reason the court was right in directing a verdict for the defendant, and the judgment is affirmed. (243 Fed. 539) HUTTIG v. JOHN PAUL LUMBER CO. (Circuit Court of Appeals, Seventh Circuit. April 10, 1917. Rehearing Denied May 16, 1917.) No. 2403. 1. TRIAL 178-MOTION FOR DIRECTED VERDICT-EFFECT. On defendant's motion for a directed verdict, the trial judge was bound to accept the testimony favorable to plaintiff. 2. BROKERS88(3) -QUESTIONS FOR JURY-PROCURING CAUSE OF SALE. In a broker's action for commissions on a sale of land to a corporation, evidence held insufficient to warrant an inference that plaintiff, through any acts of his own or of others on his behalf, was the procuring cause of the sale, though he had negotiated for a sale with M. and R., a stockholder in such corporation, and hence the court properly directed a verdict for defendant. 3. BROKERS 86(1) - SUFFICIENCY OF EVIDENCE-CONJECTURE. In a broker's action for commissions, plaintiff, upon whom the burden of proof rested, was not entitled to a verdict on conjecture. Alschuler, Circuit Judge, dissenting. In Error to the District Court of the United States for the Western District of Wisconsin. Action by Harry W. Huttig against the John Paul Lumber Company. Judgment for defendant, and plaintiff brings error. Affirmed. Huttig's declaration was based on the following contract: "H. W. Huttig, Muscatine, Iowa. "Chicago, August 8, 1912. "Dear Sir: Referring to all of the holdings of the John Paul Lumber Co. in the La Fayette, Taylor, Madison, Jefferson, Wakulla counties in the state of Florida, with the exceptions of the ninety thousand acre tract contained in townships 6 south, R. 12 east; 7 south, 12 east; 8 south, 12 east; 9 south, 12 E.; 6 south, 13 E.; 7 south, 13 E.; 8 south, 13 E.; 9 south, 13 Е.-all in La Fayette county, Florida, comprising with the above exception about (234,000 acres) two hundred and thirty-four thousand acres, we hereby authorize you to sell all of the above named 234,000 acres for $2,560,000, for which in case of sale we agree to pay you a commission of 5 per cent.; and we further agree to pay you a commission of 5 per cent, on the consummation of a sale of any part thereof; and we further agree to pay you a commission of 5 per cent. on any sale you may make thereof that is consummated, whatever the purchase price may be. We will allow you sixty days from date to get parties interested and to examine property and a reasonable time thereafter to examine timber and abstracts. "Yours truly, John Paul Lumber Company. "By R. W. Paul, V. Pt." At the conclusion of all the evidence the court directed a verdict for defendant. This is assigned as error. Wm. S. Oppenheim, of Chicago, Ill., for plaintiff in error. BAKER, Circuit Judge (after stating the facts as above). [1,2] McMillan, a real estate broker in Chicago, in late July, 1912, met Musser, of Muscatine, Iowa, in Chicago and told him that the Florida For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |