Guy v. James

Hager, J.

— The defendant is the owner of the British ship Jliber-•nia, which arrived at this port from Cardiff, England, under a charter party, with a cargo of coal consigned to the plaintiff.

The plaintiff brings this suit to recover for services and disbursements made as consignee, on account of defendant.

Some of the disbursements have been admitted, others are disputed and are of various classes :

1st. Among those claimed and disputed are several items of pay ments made, at different times, by the plaintiff to the master of the ship while in port. As a general rule, to sustain an action for such items, it must appear that the advances of-money made to the master were for the use of the ship, and that they- were warranted by the exigency of the case. There being no special directions from the owner, or evidence to prove the existence of any actual necessity for these supplies of money, or that they were expended or appropriated, for the use of the ship, they cannot be allowed. It is true the plaintiff had authority to make disbursements; but the mere fact of a disbursement having been made, coupled with the authority to make it, is not sufficient to charge the owner for money supplied to the master or to any other person, when by the character of the payment itself there is no presumption that it was for the benefit of the ship or owners. If either the payments to the master had been for the use of the ship, the plaintiff should have supplied the necessary proof to establish that fact.

2d. For money paid to discharge a bottomry bond given, in itinere, at Valparaiso, 117,727.

If tbis was an action upon the bottomry bond, the points and authorities cited and relied upon by defendant, would have, been applicable; but here whether or not the hypothecation was justifiable or necessary, is not in controversy. The plaintiff was neither directly interested nor a party to it; but upon the arrival of the ship at this port, as consignee and agent of the owners, and on behalf of all parties in interest, it was his duty to inquire into and determine the necessity of the hypothecation, and if he deemed it advisable, to discharge it without compelling the holders to resort to, or subjecting his principal to the expense of, an action. In making this payment, he should have acted in good faith and for the best interests of the owner; and in the absence of proof, it will be presumed that he did so act. It is in evidence that he has been reimbursed for the whole or greater portion of the amount so paid by the master, and defendant claims that, inasmuch as plaintiff has not shown the necessity of the hypothecation, he is entitled to recover from the plaintiff, the sums paid by the master. I am unacquainted with any principle of law that would support so unjust a conclusion.

3d. For money paid for port charges and in discharging the cargo, etc.

By the charter party and bill of lading the ship was bound to discharge the cargo and deliver it alongside and the amounts paid by plaintiff for this purpose, if reasonable, is a proper charge against the owner. It may have been the duty of the crew to discharge the cargo, but in the absence of all proof except that payments have been made for this labor, I cannot infer that they were unnecessarily made. The crew may have deserted or been discharged and others may have been employed, (which I believe is customary at this port,) to discharge the cargo.

The fairness or reasonableness of the charge is not impeached, and I must presume the consignee acted in good faith for the best interest of the owner, and is entitled to recover the amounts paid for discharging the cargo. The same remarks, in some respects, are applicable to the amounts claimed for port charges and for adjusting, and commissions for collecting the general average. . These are proper charges against the ship and owner, and should be allowed.

A finding is ordered according to views herein indicated.