Dunwody v. The Campbell

Fifth Circuit

Dunwody v. The Campbell

106 F. 542, 45 C.C.A. 464, 1901 U.S. App. LEXIS 3594

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 22, 1901

DocketNo. 953

StatusPublished

Cited by1 cases

This text of 106 F. 542 (Dunwody v. The Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunwody v. The Campbell, 106 F. 542, 45 C.C.A. 464, 1901 U.S. App. LEXIS 3594 (5th Cir. 1901).

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Opinion

PARDEE, Circuit Judge

(after stating the facts). The first three exceptions to the . libel are well taken. The libel alleges that the lighter was hired from the libelant, by persons who were furnishing cargo to the said bark, to carry the lumber to the said bark. From this it is apparent that the contract was not with the owners of the ship, nor with the master for the use of the ship. What the relations were between the persons who were furnishing cargo to the said bark and the ship is not averred. When and where the duty of the furnishers of cargo ended, and the obligation of the ship commenced, does not appear. Whose duty it was to unload the lighter and stow the cargo is not averred. It is a matter of common knowledge, and the records of this court abundantly show, so that we are •authorized to take cognizance thereof, that nearly all, if not all, ships that load timber in the port of Pensacola are under charter contaifiing provisions generally 'to the effect that the charterers are to furnish the cargo, select the stevedore, and pay, in the first instance, at least, all the expenses of loading and stowing, but always regulating the respective duties and obligations of the charterers and the ship. All these important facts, are omitted in the libel, notwithstanding the rule that the libel should contain every fact necessary to give the court jurisdiction and entitle the libelant to the relief he asks (see Ben. Adm. 235, and cases cited); and we can give no effect to the general statement that “the said detention and use of said lighter was not by or ón account of the said hirers, but solely by the said master, who, for the benefit of his vessel, and in his character as master, held and used the said lighter as aforesaid during the whole of the said fourteen days.” Besides this, we are clear that enough is averred in the libel,,to show that the ship is not liable under express contract, and that this general allegation, if given effect, is wholly insufficient to make the ship liable ex de-licto, or under any contract that.can fairly be implied. The decree of the district court is affirmed.

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PARDEE, Circuit Judge

(after stating the facts). The first three exceptions to the . libel are well taken. The libel alleges that the lighter was hired from the libelant, by persons who were furnishing cargo to the said bark, to carry the lumber to the said bark. From this it is apparent that the contract was not with the owners of the ship, nor with the master for the use of the ship. What the relations were between the persons who were furnishing cargo to the said bark and the ship is not averred. When and where the duty of the furnishers of cargo ended, and the obligation of the ship commenced, does not appear. Whose duty it was to unload the lighter and stow the cargo is not averred. It is a matter of common knowledge, and the records of this court abundantly show, so that we are •authorized to take cognizance thereof, that nearly all, if not all, ships that load timber in the port of Pensacola are under charter contaifiing provisions generally 'to the effect that the charterers are to furnish the cargo, select the stevedore, and pay, in the first instance, at least, all the expenses of loading and stowing, but always regulating the respective duties and obligations of the charterers and the ship. All these important facts, are omitted in the libel, notwithstanding the rule that the libel should contain every fact necessary to give the court jurisdiction and entitle the libelant to the relief he asks (see Ben. Adm. 235, and cases cited); and we can give no effect to the general statement that “the said detention and use of said lighter was not by or ón account of the said hirers, but solely by the said master, who, for the benefit of his vessel, and in his character as master, held and used the said lighter as aforesaid during the whole of the said fourteen days.” Besides this, we are clear that enough is averred in the libel,,to show that the ship is not liable under express contract, and that this general allegation, if given effect, is wholly insufficient to make the ship liable ex de-licto, or under any contract that.can fairly be implied. The decree of the district court is affirmed.

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106 F. 542, 45 C.C.A. 464, 1901 U.S. App. LEXIS 3594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunwody-v-the-campbell-ca5-1901.

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