FRANK WATERHOUSE, Limited, et al. v. ROCK ISLAND ALASKA MIN. CO., 97 F. 466

MORROW, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The appellee has interposed a motion to strike from the record the document purporting to be a bill of exceptions, appearing therein, on the ground that it does not constitute a proper, sufficient, or legal bill of exceptions. The appellee also objects to the consideration by the court of the alleged errors assigned by the appellant, on the ground that no proper, sufficient, or legal assignment of errors was filed in the circuit court, and no proper, legal, or sufficient assignment of errors appears in the record.

The bill of exceptions covers 150 pages of the printed record. It contains the usual formal introductory matter, and then follows a transcript of the testimony of witnesses in narrative form, with the objections by counsel to the admission of testimony, and the rulings of the court with respect to such objections; a report in full of the charge of the court to the jury; the exceptions taken by counsel to certain portions of the charge, and to the refusal of the court to give certain instructions requested; and the exhibits in the case, including, also, the proceedings on a motion for a new trial.

The certificate of the trial judge to this bill of exceptions recites that in “order that all the motions, offers, rulings, exceptions, and other proceedings had, and all the testimony, exhibits, and other evidence adduced, received, or offered, in said cause, and not already a part of the record, may be by this bill of exceptions made a part of tbe record therein,” the judge has set his hand and seal to the same, and certifies that the bill of exceptions, together with the sundry exhibits therein mentioned, “con-rains all the motions, offers, rulings, exceptions, and other proceedings had, and all the material testimony exhibits, and other evidence adduced, received, or offered, in said cause, from the beginning of said cause down to the date of this certificate, and contains all the material facts, matters, and proceedings in said cause not already a part of the record therein, including the charge of said judg’e to said jury in full.” The record thus made up appears to be a report of the trial of the case in such fullness of detail as to incumber the record with much useless matter, and impose upon this court the difficult task of determining the precise relation of scattered testimony to the principles of law declared by the court in the instructions given to the jury, and to the propositions of law contended for by counsel, and rejected by the circuit court in the instructions refused.

This method of presenting a ease to the appellate court has been repeatedly condemned by the supreme court of the United Btates. Insurance Co. v. Raddin, 120 U. S. 183, 193, 7 Sup. Ct. 500; Hanna v. Maas, 122 U. S. 24, 26, 7 Sup. Ct. 1055.

The assignments of error are 32 in number, 11 of which relate to exceptions taken by the appellant to the action of the court in admitting certain testimony oifered by the appellee; 2 to the refusal of the court to admit testimony offered by the appellant; 2 to the denial of motions made by the appellant, one of which was the denial of a motion for a new trial; 9 to instructions given by the court to the jury; and 8 to the refusal of the court to give instructions requested by the appellant. In the view we take of this case, there are but few questions properly presented by the record for our consideration.

The first and controlling question to be determined is as to the validity of the charter party executed at St. Michaels, Alaska, on July 5, 1898, on the part of the Eock Island Alaska Mining Company, by W. C. Knaack, general manager, and on the part of Frank Waterhouse, Limited, by O. G. Conradi, captain .of the steamship Garonne, -for the lease and charter of the steamboat Eock Island, to operate on the Yukon river between St. Michaels and Dawson City during the season of 1898. Was this charter party, under the circumstances connected with its execution, a lawful contract, binding upon the appellant?

The first objection urged against it by the appellant is that it was incompetent evidence, by reason of the fact that it did not have affixed to it an internal revenue stamp, as required by the act of June 13, 1898 (30 Stat. 448, 460), commonly known as the “War Eevenue Law.”

Schedule A of this act went into effect on July 1, 1898; but it is a well-known fact that the government was not prepared at that date to supply the public with internal revenue stamps throughout the United States, and particularly was this failure an established fact of general public notoriety in the distant territory of Alaska. It is true, however, that this condition of affairs did not relieve the parties interested in the charter party from the duty of having it subsequently stamped as provided by law, if they desired to use the document as an instrument of evidence.

But the ruling of the court in admitting the charter party in evidence without being properly stamped, though erroneous, was without prejudice in this case. The language of

section 14 of the act of June 13, 1898, is: ‘That hereafter, no instrument, paper, or document required by law to béstamped, which has been signed or issued without being duly stamped, or-with a deficient stamp, nor any copy thereof, shall be recorded or admitted, or used as evidence in any court until a legal stamp or stamps, denoting the amount of tax, shall have been affixed thereto, as prescribed by law.” The original contract is unaffected by this statute, and, if otherwise valid, it remains valid, notwithstanding the absence of a stamp, from the written evidence of its terms. ' The charter party was set out in full in the complaint.

The answer of the defendant (appellant here) denies the allegations of the paragraphs of the complaint containing the charter party, but immediately qualifies the denial by alleging that Conradi, who executed the charter party, was not at the time of the execution of the instrument, or at any time, the authorized agent of the defendant for the purpose of entering into or executing the instrument; and, as. an affirmative defense, defendant alleges that “if, for any reason, it is liable to the plaintiff in any sum whatever upon said charter party,” it is entitled to sundry abatements from the total amount of the hire of said steamer Eock Island called for by the terms of said charter party, “and to sundry set-offs against the.plaintiff’s claim. for said total amount, by reason of the following facts.” The defendant then proceeds to allege and set up certain counterclaims as a set-off against the amount claimed by the plaintiff under the charter party.

The questions placed in issue by the answer were:

(1) Was Conradi the authorized agent of the defendant in executing the contract of charter party?

(2) If so, what counterclaims was the defendant entitled to have allowed, as against plaintiff’s claim for the hire of the vessel under the terms of the contract? The validity of the contract was only in issue with respect to Oonradi’s agency, and that was a question of authority, to be determined by facts outside of the document itself. The written evidence of the contract was not, therefore, necessary to establish plaintiff’s case upon this issue.' The ruling of the court was accordingly without prejudice to any right of the appellant involved in any question submitted to the court for determination.

It is next contended by the appellant that there is no general power vested in the master of a ship to bind the owner of a ship or cargo beyond the limits of the ship’s own voyage, by chartering another vessel to perform the connecting transportation; and, further, that no such power arises, whatever the necessities or emergencies of the situation, in case of the failure of expected means of performing the connecting transportation to complete through contracts made by the owner.

Undoubtedly the main duty resting upon the master of a vessel is to take his ship safely to its destination, and thus accomplish the purpose of the voyage. This purpose in the case at bar was the earning of carriage money. It is well settled that, if an exigency arises on the high seas which threatens to interfere with the success of such an undertaking, the master is clothed with authority to act as the agbnt of the shipowner and shipper.

This rule, it would seem, should apply to any emergency occurring while the responsibility of the master continues, and the authorities are to the effect that this responsibility extends to the delivery of the cargo. In 1 Pars. Ship. & A dm. 233, the duty of a master is extended to transshipment of the cargo, when unable to transport the goods to their port of destination himself.

The supreme court of the United States expresses the same opinion in The Maggie Hammond, 9 Wall. 458, and further says: “Shipments are made that the goods may he transported to the place of delivery, and the master should always bear in mind that it is his duty to accomplish that object.” The early authority on maritime law, Emerigon, specifically declares, with reference to the agency of a captain of a ship: “His quality of captain makes him master, and confers upon him the care of all that which concerns the ship and the cargo.” He further states it as a general rule that the owner is bound by the acts of the master.

The case of Lemont v. Lord, 52 Me. 365, cited by counsel for each of the parties herein, is in point; and, while it deals largely with the question of the master’s agency for the shipper, the court also considers generally the powers and duties of the master of a ship in an emergency.

It declares the American law to be that stated by Chancellor Kent in his Commentaries, as follows: “In this country we have followed the doctrine of Emerigon, and the spirit of the English cases, and hold it to be the duty of the master, from his character of agent of the owners of the cargo, which is cast upon him from the necessity of the case, to act in the port of necessity for the best interest of all concerned; and he has powers and discretion adequate to the trust, and requisite for the safe delivery of the cargo at the port of destination.

If there be another vessel in the same or in a contiguous port, which can be had, the duty is clear and imperative upon the master to hire it; but still he is to exercise a sound discretion, adapted to the case.” And, after citing other authorities, the court says: “When a master stands upon the deck of his ship, as he sails out of his port of departure, he is primarily, and as he then stands, the representative and agent of the owners of the ship. If his voyage is prosperous and free from disaster, he has no right, as we have seen, to intermeddle with the cargo on the voyage, or on its safe termination.

But he has, so to speak, within himself a latent potentiality, existing in possibility and not in act, of other and distinct powers and agencies, which subsequent events may call into exercise. From a simple captain of the ship, and of that alone, he may, in case of disaster, peril, or stress of weather, become an absolute master over the cargo. He may cast it overboard, if the safety of the vessel requires the sacrifice. He may, in case of absolute necessity, sell a part of the cargo. He may, when not forbidden by a positive statute of his country, ransom both ship and cargo.

He may be, as he often is, placed in such circumstances that he is, from necessity, chiefly by reason of the absence of all other parties, the agent of each and all persons interested in the vessel, the cargo, the freight, and the insurance.” And again : “When a master finds himself in this position of responsibility, and called upon to act, he is to remember that the owners of his ship will lose all their freight, if the goods are not forwarded, and that he, on their behalf, as master, has a right to retain possession, for the purpose of transshipping in order to earn the original freight, or a part at least.

Mason v. Lickbarrow, 1 H. Bl. 359. If this can be done, it answers all the purposes of the original contract, so far as the principal object of the voyage is concerned.

If, then, the master can find in the port, or in one within a reasonable distance, another ship, the master of which will agree to carry on the cargo at a rate at which something may be saved to the owners of the ship out of both freights, it would be his right and his duty to employ the new ship, for the benefit of his owners, and acting on their behalf; for, although there is no legal obligation under the original contract, yet the owners of the vessel may, if they find it for their interest, forward the cargo in another vessel.

It is therefore the right and duty of the master to make all reasonable efforts to obtain another vessel, on such terms as will eventually save something to the owners of the ship. Hugg v. Insurance Co., 7 How. 595. In doing this, he acts as master of the vessel, still having in his possession the cargo for the owners of the ship, and has not any occasion, nor is there any necessity for him, to assume the character of supercargo or agent for the merchant. This latent and dormant office still remains in abeyance.” Are these principles of law applicable to the case at bar?

In addition to the facts contained in the record, the court is justified in judicially knowing the current history of the times, and the fact that the transactions in this case took place at the time of, and were connected with, the extraordinary rush of adventurers to the newly-discovered gold fields on the Yukon river, popularly known as the “Klondike.” The situation presented emergencies to those engaged in transportation, which had to be met promptly, and with due regard to all the attending circumstances.

It appears that Conradi, as master of the ship Garonne, was employed by the appellant; that said ship arrived at St. Michaels, Alaska, on July 4, 1898, with passengers and a cargo bound for and consigned to Dawson and other Yukon river points; that arrangements had been made by the Waterhouse Corporation to transport the passengers and freight of the Garonne from St. Michaels to their respective destinations by a river steamer to be furnished by F. W., Limited, a corporation having the same American manager as the Water-house Corporation; and that upon the arrival of the Garonne at St.

Michaels the river steamer did not appear. It further appears that Capt. Conradi was confronted with the alternative of returning to Vancouver with passengers and freight, thereby losing to the Waterhouse Corporation the entire earnings of the trip, as well as subjecting it to liability for breaches of contract, or of providing other means of transportation for said passengers and freight; there being no conveniences at St. Michaels for caring for either on shore. Conradi, as master of the ship, was the only person in a position to look after the interests of all parties concerned.

It was clearly not only within the scope of his employment, but his duty, in the emergency, to do that which the owner would do for himself if personally present. The situation required action upon his

part in order to carry out his employer’s contracts, and it is plain that the duty rested upon him, as master, to make any reasonable arrangement to that end. This duty vested in him a power equal to the emergency and suitable to the occasion. It is not contended that the terms of the contract which he entered into under these circumstances were unreasonable. It may be observed, also, that the evidence shows the total freight and passenger earnings of the expedition, from shippers other than the Waterhouse Corporation, to have exceeded the total sum due under the charter party.

It follows that there was evidence sufficient to establish the fact that Capt. Conradi was, under the circumstances, authorized to make the charter party; that the instrument was a lawful contract between the parties, and binding upon the appellant. Questions of this nature are to a large degree dependent for their solution upon the facts and circumstances of the case, and in a common-law court are prqperly submitted to the consideration of a jury, with suitable instructions as to the law of the case; and this is what the court did with respect to this contract of charter party.

The same observations are applicable to the other agreements entered into between the parties. * * Error is assigned upon the court's instruction with regard to the ratification of the charter party by the appellant, and upon the exclusion of certain evidence relative thereto. It having been determined, however, that there was evidence sufficient to establish the fact that Capt. Conradi had the power, under the circumstances, to make the charter party, the question of ratification becomes immaterial.

It is next contended by appellant that the Rock Island was not in a fit and proper condition for navigation of the Yukon at the time the steamboat was chartered, and that by reason thereof delays were caused in the trip up the river which entailed an extra expense to said appellant of about $8,600, and an addition to the amount which would otherwise have been due to the appellee under the charter party of $12,500; and error is assigned upon the instructions of the court to the jury to disregard the claim of appellant for right of deduction, so far as it related to the absence of certain appliances from the Rock Island, and the working of the capstan, if the jury believed that the representatives of the appellant accepted the steamer in the condition in which she was when they took her, and that, in order to entitle the appellant to deduction on account of delays from machinery breakages or defective capstan, the same must have arisen from inherent defects unknown to the appellant, or which subsequently arose through incompetency of the engineers.

Error is also assigned upon the refusal of the court to instruct the jury that the owner of a vessel is answerable for any defects, whether known or unknown, visible or patent, which impair her usefulness-to the hirer. The following statement appears in the bill of exceptions with respect to the condition of the steamer Rock Island immediately preceding the charter, and the cause of her grounding in the Yukon river: “The undisputed evidence in the case showed that, before taking the steamer Rock Island at St. Michaels harbor, Capt. Oonradi and Oapt.

Jordison made an examination of the boat and of her machinery and appliances, and discovered the full details of her equipment, and the absence of spars, ringbolts, and tackle therefor. There was also evidence introduced by the plaintiff on rebuttal tending to show-- that the capstan of the steamer Rock Island wás a new machine, of a standard manufacture, and was in good working order at the time the steamer was accepted by Captain Conradi and Captain Jordisin for the defendant.

The undisputed evidence showed that the grounding of steamers was an ordinary mishap or peril of navigation of the Yukon river.” There is no evidence that the representatives of the appellant made any demand upon the appellee for any further appliances than were then upon the boat, nor that they complained of their absence. And, after accepting the boat with the knowledge of such absence, appellant could not afterwards complain of it. We find no error in the court’s instruction in this regard, or upon the question of inherent defects in machinery.

It is well established that there is an implied warranty by a shipowner that the vessel he furnishes to another party shall be reasonably fit for the purposes of the contemplated voyage at the time he delivers her to the hirer, and that the owner is responsible for damage caused by latent defects existing at the time of hiring. And the court so stated the law to the jury. Appellant lays considerable stress upon the alleged error of the court in admitting in evidence the subpcana requiring the attendance of Oapt.

Oonradi, with the marshal’s return thereon showing inability to serve the same, and in instructing the jury that they had the right to infer that Conradi would have given testimony which would not be more favorable to appellant than the testimony given by the other witnesses, if they determined as a fact that appellant facilitated the absence of Conradi from the trial by granting liim leave of absence. The facts connected with the making of the charter party in suit were particularly within the knowledge of Capt.

Oonradi, and the presumption would ordinarily arise that the appellant had it in its power to shovt those facts by producing Mm as a witness. As stated in Railway Co. v. Ellis, 4 C. C.

A. 454, 54 Fed. 481: “It is a well-settled rule of evidence that when the circumstances in proof tend to fix a liability on a party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the circumstances in proof tend to establish, and he fails to oilier such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would support, the inferences against him, and the jury is justified in acting- upon that conclusion. ‘It is certainly a maxim,’ said Lord Mansfield, ‘that ail evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.’ Blatch v.

Archer, Cowp. 63, 65,” — citing, also, 1 Stark. Ev. p. 54. See, also, Clifton v. U. S., 4 How. 242; Frick v. Barbour, 64 Pa. St. 120. This rule applies even in criminal cases (Graves v. U. S., 150 U. S. 118, 14 Sup. Ct. 40; People v. Hovey, 92 N. Y. 554; Rice v. Com., 102 Pa. St. 408), and justified the court's action on the trial below. The overruling of a motion for a new trial is not assignable as error, under the practice established in the courts of the United States. This has been repeatedly held by the supreme court and by the circuit court of appeals. Moore v. U. S., 150 U. S. 57, 14 Sup.

Ct. 26; Holder v. U. S., 150 U. S. 91, 14 Sup. Ct. 10; Blitz v. U. S., 153 U. S. 308, 14 Sup. Ct. 924; Wheeler v. U. S., 159 U. S. 523, 524, 16 Sup. Ct. 93; Sigafus v. Porter, 51 U. S. App. 693, 28 C. C. A. 443, 84 Fed. 430; Railway Co. v. Charless, 7 U. S. App. 359, 2 C. C. A. 380, 51 Fed. 562. We are satisfied that no errors were committed which would justify a retrial. The judgment of the circuit court is therefore affirmed.