JOURNAL OF MERCANTILE LAW.

LIABILITIES OF TELEGRAPH COMPANIES FOR DAMAGES SUSTAINED BY ERRORS MADE IN DISPATCHES.

In the Court of Common Pleas of Ohio, May Term, 1853. Bowen & McNamee vs. The Lake Erie Telegraph Company.

Telegraph Companies holding themselves out to transmit dispatches correctly, are bound so to do or respond in damages, unless the causes of failure are beyond their control.

This was an action brought by the plaintiffs, to recover of the defendant damages sustained by reason of a mistake in the transmission of a telegraphic despatch sent over the line of the defendants, from Monroe, Michigan, to Buffalo, New York, Nov. 25th, 1850. The dispatch was as follows:

"Send one handsome eight dollar blue and orange, and twenty-four red and green, three twenty-fives, Bay State. Fill former orders in best high colors you

can.

"To Bowen & McNamee, New York.”

"BIDWELL & Co., Adrian, Mich.

The proof was that the dispatch, when it reached New York, read one "hundred," instead of "one handsome," and that the mistake complained of occurred in some office upon the defendant's line. That the plaintiffs, after having had the dispatch repeated, (how far back did not appear,) and receiving it a second time "one hundred," shipped to Bidwell & Co. "one hundred eight dollar blue and orange Bay State" shawls; that the shawls were returned, and reached New York after the shawl season had closed; by reason of which they were depreciated in value.

The plaintiffs claimed to recover charges for freight and the depreciation in value.

The defendants denied the commission of the error, and claimed that the dispatch was so obscure as to be inappreciable, and not, therefore, the subject of damages, even if the error had been made; the Telegraph Companies were not. held to the same accountability as common carriers, and that such errors as the one complained of, might occur without gross negligence.

The case was argued to the jury by William Slade, Jr., Esq., for the plaintiffs, and John A. Foot, Esq., for defendants.

His Honor, Judge Starkweather, charged in substance, that Telegraph Companies holding themselves out to transmit dispatches correctly, were under obligation to do so, unless prevented by causes over which they had no control; that the defendants were bound to send the message in question, and that if they failed in this duty, whereby damage had occurred to the plaintiffs, the plaintiff's must recover. That if the message was originally so obscure as to be inappreciable, that then the error complained of could not increase its obscurity, and the plaintiffs could not recover; but if it was sufficiently plain to be understood by Bowen & McNamee, the plaintiffs in this case, the merchants to whom it was addressed, though not intelligible to others, that it was appreciable, and if changed to the injury of the plaintiffs, such a change was a proper subject of damages.

All these questions under the charge of the Court, were for the jury upon the evidence in the case.

The jury returned a verdict for the plaintiffs, for one hundred and eighteen dollars damages.

ACTION TO RECOVER VALUE OF SHIP'S BOATS MADE BY LIBELANT AT HIS

In the United States Circuit Court, October 1853, before Chief Justice Nelson. Charles L. Ingersol vs. the Bark Carbarga.

This case came up on appeal from the Court of Admiralty. where a judgment and decree had been rendered by Judge Judson, in favor of the libelant, for $150 65. His Honor, Chief Justice Nelson, delivered the opinion in the case, as follows:-This libel was filed in the Court below to recover the value of two of the ship's boats, made by the libelant at his ship yard, in this port, upon the orders of the master. The orders gave the size and description of the boats, and terms of payment, which were cash on delivery. The price of one of them as agreed upon at the time was $164 40, the other $106. After the boats were constructed, the master refused to accept them, on the ground as alledged, that they were not built according to the agreement; but were defective in the construction and in the materials. After the refusal to accept, the boats were sold by the libelant at a price much less than that stipulated for in the orders of the master, and the late Judge Judson, sitting in the Court below, decreed against the ship and in favor of the libelant, the difference amounting to the sum of $150 65. A great deal of evidence was taken upon the question whether or rot the boats were built in a workmanlike manner, and with suitable materials; and also, whether or not, they had been accepted by the master, or by those acting in his behalf. The proof is very conflicting upon the first question, but upon the second it is quite clear in favor of the claimant, and being so I shall not enter into the question whether or not they were built according to contract; for in my judgment, assuming that they were, the libelant has not made out a case on which the ship is chargeable for the price of them. It does not allude distinctly in the case whether the ship is of a foreign or domestic one; but the fact is probably not material, as if the latter, the lien would attach, within the rule set up, under the municipal law of the place where the contract was made.

This is an attempt to push the doctrine of the lien upon the ship in behalf of the material man, and persons purchasing supplies by the order of the master beyond any case or principle of maritime law, that has come under my notice, namely, to make her chargeable not for repairing, materials, and supplies furnished, but for the damages arising out of the breach of the contract to furnish from the master's refusal to accept them. I think it will be found, on looking into the origin and foundation of this rule in the maritime code, that the reasons and policy upon which it rests are applicable only to cases where the materials and supplies have been actually furnished to the ship; in other words, where the material man, a ship chandler, has parted with the materials, and stores, and the ship received the benefit of them—that the lien attaches. In the case of materials and repairs the articles furnished enter into and give value to the ship itself, and in the case of stores they are necessary to enable her to earn her freight, and essential to fit her for entering upon and completing her voyage, and hence the propriety and justice of charging the ship with the expenses of the articles furnished or work done. The object and foundation of the rule that gives to the material man and persons fitting out the ship, or who have lent money to the master for the purpose, (a privilege or right of payment over other creditors upon the value of the ship,) is fully examined by Sir John Nicholl in in the case of the Neptune, (3 Hagg. Adm. 129, 150—and in Abbott, part 2, chap. 3, sec. 1, 2, 3 and 4.) I had occasion to consider this question incidentally in the case of the ship Pacific, and expressed the opinion there which I have now stated a little more at large [1 Black R.] The libelant is not without a remedy as the master is personally liable for any damage he may have sustained for the breach of the contract, as is also the owner, if the master was act ing within the scope of his authority. I think the learned Judge in the Court below erred, and that the decree must be reversed with costs.

LIBEL TO RECOVER VALUE OF MATERIALS FURNISHED THE BUILDERS OF A

STEAMSHIP.

In United States Circuit Court, in Admiralty, September 20, 1853. Judge Nelson. James Udell vs. Steamship Ohio.

Before

The libel was filed in the court below by the appellant to recover the value of materials furnished the builders in the construction of the steamship Ohio; and the important question in one case is whether or not the ship is liable under the lien law of the State of New York; being a domestic ship, it is only under that law that she can be charged, if at all. The court below held that she was not liable, and dismissed the suit. The case turns upon the effect of the contract made by the owners with the contractors to build the Ohio, in connection with the true construction of the State statute. The statute provides that "whenever a debt, amounting to fifty dollars or upwards, shall be contracted by the master, owner, agent, or consignee of any ship or vessel within this State, for either of the following purposes: 1. On account of any work done, or materials furnished in this State, for or towards the building, repairing, fitting, furnishing, or equipping such ship or vessel, &c., such debt shall be a lien upon such ship or vessel, her tackle, apparel and furniture, and shall be preferred to all other liens thereon, except mariners' wages." (2 R. S. N. Y. p. 423, sec. 1.)

The contract to build the Ohio was entered into by George Law and his associates, with the firm of Bishop & Simonson, ship-builders, of the city of New York, on the 19th of October, 1847. The recitals contain a full and detailed description of the vessel, including size, model, and the materials with which she is to be constructed; and it is then agreed on the part of Bishop & Simonson, that they will construct, build, and complete, the ship of the dimensions and materials mentioned in the specification, and in all particulars conforming to the specification, and to the directions that may be given by the superintendent therein after named, for the sum of $110,000; the ship to be launched on or before the 15th day of August next, and as soon as launched to be placed at the disposal of the said superintendent, for the purpose of receiving her engines and machinery, and thereafter to be fully completed as soon as the superintendent should require. They agree to furnish all the materials for the said ship, according to the speci fication, except such as the owners had agreed to supply; and in respect to every particular not named in the specification, they agree to construct of such materials as the superintendent shall direct. And the parties of the second part agree, that upon condition of the faithful performance of all things, on the part of the builders, to be performed, to pay the $110,000 by installments, as the materials are delivered and the work progress; the first payment to be made when the keel is laid, and the other payments at the end of every month successively, therefor, and the amount respectively to be in the same proportion to the whole amount to be paid which the work done and the materials delivered, shall bear to the whole work and the materials required for the full performance of the agreement: and it is then agreed that George Law shall have the superintendence and direction of the building and construction of the ship.

The Ohio was launched on the 5th of August, 1848, and performed her first trial trip soon afterwards; and for aught that appears at this time the payment to the builders had all been made according to terms of the contract; and it was not till after this that the claim for materials was presented by the libelant against the ship. Now, the question in the case is, whether Bishop & Simonson, who contracted this debt with the libelant for the materials that entered into the ship in its construction, were, within the true meaning of the statute, "masters, owners, agents," or consignees" of the Ohio, while thus engaged in building her? The heading of the statute is "of proceedings for the collection of demands against ships and vessels," and the terms used in the body of it describe persons connected with the navigation of ships, and standing in a relation to the same well known and understood in this branch of business. The terms at once indicate this relation to allsons engaged in Commerce and navigation, and it

is in this sense, I think, the court must understand them, in giving a practical construction to the statute. All the provisions of the act-and they are numer ous-show that the framers of it must have used the terms in this sense; and hence it is proper to look to this branch of business to which the subject of the statute relates, in order to ascertain their true meaning. Now, bearing in mind this view of the statute, it cannot, I think, be pretended that Bishop & Simonson were masters of the Ohio, or agents or consignees of her. To hold either, it seems to me would be absurd and a gross perversion of these terms; and the case, I think, comes down to the question whether or not they were owners in the sense of the provision.

If they can be brought within either of the terms used, it must be this one: A contractor employed, generally, to build a vessel, furnishing all the materials, and to complete it at a given time at a price agreed upon, is doubtless the owner until the vessel is built and delivered. And under such a contract the lien of the material man would clearly enough attach, and if the case in hand is not distinguishable, the decree of the court below cannot be upheld. The demand of the libelant would be a debt contracted by the owner, and although the vessel may have been delivered, the lien would remain. One only limitation in the statute is, that the proceedings must be instituted before she leaves the port. (Sec. 2.) But in this case the contract is for the construction of a ship after a specified model and materials, to be built under the special superintendence and direction of one of the owners, and to be paid for from time to time as the work progressed and the materials were furnished; and I cannot doubt but that Law and his associates became the owners of it as the construction advanced and was paid for. Their interest as owners commenced when the keel was laid, and continued from that time down till the ship was launched, and passed into their full possession and control. It was not in the power of Bishop & Simonson, at any period of its construction, to sell it, nor could it have been subjected for the benefit of their creditors, except so far as they might have a lien for the current monthly installment. This, I think, is the legal effect of the contract.

It seems to me clear that the framers of the law did not intend that persons dealing with a mere contractor, divested of ownership, should have a lien on the vessel; for, if so intended, some provision would have been made for presenting the accounts within a given time, as in case of the mechanics' lien law, so that the owner could have some means of ascertaining the demands, and protecting himself against imposition. No such provision is to be found here. The act simply provides that a debt contracted by the master, owner, agent, or consignee of the ship, for work done or materials furnished, shall be a lien upon her; not a debt incurred by the contractor to build. The latter would have been the natural phraseology if the case in hand had been within the contemplation of the legislature. An illustration of the repairs of a vessel. Suppose the owner contracts with the shipwright for these repairs in the terms of the contract in the present instance, no doubt the shipwright would have his lien under the act, for the debt would be a debt contracted by the owner, but could this be averred of the debts contracted by the shipwright with the material men? Certainly not upon consistent use of language. The statute has been before the Supreme Court of the State of New York, and the decision we have arrived at is in conformity with the views there expressed. The case is not very fully reported in respect to the facts, but the doctrine of the court in expounding the terms, "master," "owner," agent," or "consignee," is full in accordance with our view of the case. (20 Wend. 191, Hubbell vs. Denison.) The facts here exemplify the gross injustice that might result to the owners upon the contrary construction. The libelant was advised of the contract with Bishop & Simonson, at the time he was furnishing the materials, and of the terms of payment, and yet no steps were taken by him to arrest the payments and have them applied to his demand. I am satisfied, therefore, that the decree below is correct and should be affirmed.

66

Jacob I. Van Pelt, appellant, vs. the Steamship Ohio, George Law and others, claimants. The decree of the district court affirmed, with costs to be taxed.

LIBEL FOR A COLLISION OF STEAMBOATS.

United States Circuit Court, (September, 1853,) before Judge Nelson. The steamboat Niagara vs. John Van Pelt.

This is a libel for a collision by the owners of the steamboat Cleopatra against the steamboat Niagara. The collision took place in the East River, opposite Cherry street. The Cleopatra was coming down the river on the New York side, with passengers, on her trip from Norwich to her berth in this port, at about halfpast seven o'clock in the morning of the 30th December, 1847. The Niagara had left her berth that morning with passengers for Bridgeport; had rounded Corlier's Hook and was straightening up the river also, on the New York side, when the collision occurred; it was a clear morning, and there was abundance of room for the vessels to pass each other without danger. It is quite apparent, therefore, that there was gross fault in the navigation of one or the other, or of both vessels, or the collision need not have occurred. The Cleopatra was struck on her larboard side, some one hundred feet from her bow, by the Niagara, the blow being a glancing one. It is clear upon the evidence, that the Cleopatra, at the time she first discerned the Niagara, as the latter was rounding the Hook, ported her helm to pass on the right, and that if the Niagara had ported hers, as was her duty according to the established general rule, both vessels would have passed free. They were from four to five hundred yards frorn each other when the Niagara opened on rounding the Hook, and each vessel could be seen, and of course at sufficient distance for each to have made the proper manoeuvres to pass to the right. But the Niagara, instead of porting, starborded her helm, to pass inside of the other vessel, and this, in the answer, is claimed as a right, founded upon the custom and usage of vessels navigating this stretch of the river that vessels coming down in ebb tide are bound to keep off in the middle of the river and in the true tide, giving to vessels going up the benefit of the eddies and slack waters, upon the New York shore. The evidence in the case fails to establish any such custom. The error of the Niagara led to the collision. The steamboat Traveler had left her berth that morning on her trip up the Sound, and was ahead of the Niagara on the New York side, some five or six hundred yards. She was hugging the shore, and passed the Cleopatra on the inside.

Some witnesses have been examined for the purpose of establishing that the Cleopatra was in fault in porting her helm after she passed the Traveler, as the Niagara was then in the wake of this vessel, and so far in shore that there was not time for her to change her course to the right to avoid the collision. But on a careful examination of this evidence, I am not satisfied that the position taken can be maintained. The weight of the whole evidence in the case is, that the Traveler was close in shore at the time she passed the Cleopatra, and that she had sheered in before reaching her for the purpose of getting the inside; and further, that as soon as she passed, the Cleopatra ported her helm to take the right of the Niagara, crossing the stern of the Niagara as she inclined nearer to the shore. This brought her on a line with the course of the Niagara, and indicating to her at the time that she intended passing her on the right, and this in season for her to have ported her helm, as was her duty, according to the established nautical rule. In order to establish fault in the direction thus taken by the Cleopatra, it must appear to the satisfaction of the Court that the Niagara at the time was so far east of her and within so short a distance, as the two vessels were approaching each other, that there would not be time for the Niagara to port her helm, and pass to the right without danger of coming together. Under the circumstances, the Cleopatra would not be justified in persevering to pass on the right. The evidence, in my judgment, warrants no such conclusion. It is apparent that the Niagara persevered in her supposed right to pass up the eastern side of the river after her pilot saw the direction of the Cleopatra, until it was too late to correct the error, and that the management of her under this mistaken right of the vessel led to the catastrophe. The testimony of the captain of the Niagara was offered in evidence on the part of the appellees in this