The National City

117 F. 822, 55 C.C.A. 44, 1902 U.S. App. LEXIS 4472

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 7, 1902
• Status: Published

Opinion

GILBERT, Circuit Judge,

after stating, the case as above, delivered the opinion of the court.

The principal question presented upon this appeal is whether the National City, which had been chartered by her owner to the Alaska & Yukon Transportation Company, is liable to a lien for the freight and passage money which was paid by the libelants under the circumstances above detailed. It is contended that the voyage which was to be performed by the National City,, and the part which she was to take in the contract of transportation of passengers and freight, was fully performed when she arrived at St. Michael, and that neither the steamer nor her owners are responsible for the failure of the charterer to have ready at St. Michael a river vessel to complete the contract. It is not shown that the libelants had any notice that the steamer was chartered, or that any fact came to their knowledge to put them upon inquiry to ascertain whether she was chartered. We think that under the terms of the charter party the vessel was demised to the charterer, and that the latter was the owner pro hac vice, and that, so far as the present case is concerned, the vessel is to be dealt with as if the Alaska & Yukon Transportation Company had been her. owner. The Freeman v. Buckingham, 18 How. 189, 15 L. Ed. 341; The Phebe, 1 Ware, 263, Fed. Cas. No. 11,064; Arthur v. The Cassius, 2 Story, 81, 93, Fed. Cas. No. 564. The contract which the corporation made with the libelants was an entire one. It was to carry the libelants and their freight from San Francisco to their final destination on the Yukon river. To the completion of that contract the National City was bound, so far as its part therein was concerned. This is clear from all the dealings between the parties. The bills of lading, while not signed by the master of the steamer, were all made with express reference to transportation thereon, and in one of them it was acknowledged that the goods had been received on board. The passenger tickets referred to the steamer as responsible for the contract, and expressed the conditions which should exempt the vessel from forwarding the passengers to their destination by other conveyance. The steamer was bound, not only to carry, but to rightly deliver, both the passengers and freight. There could be no right delivery by landing the passengers or the freight upon the island, or by landing them otherwise than by placing them on board a river steamer for the voyage up the Yukon. There is no contention (and there can be none) that the National City was prevented by accident or delay or the dangers of the sea from carrying out this contract. It 'is true that the river steamer which it was undertaking to tow to the mouth of the Yukon river was lost at sea, but the contingency of that loss was one that had not entered into the contract. The master of the National City was not thereby absolved from making a right delivery. The Lady Pike, 21 Wall. 1, 15, 22 L. Ed. 499; King v. Shepherd, 3 Story, 349, Fed. Cas. No. 7,804; Bork v. Norton, 2 McLean, 422, Fed. Cas. No. 1,659. K a river vessel of the Alaska & Yukon Transportation Company were not available at St. Michael, it was the master’s duty to procure for the libelants and their cargo transportation upon some other river vessel.

Error is assigned to the allowance by the court of the sum of $75 to the libelant Tough, the cost oi his return passage from St. Michael’ to San Francisco. It is said that this sum should not have been allowed, for the reason that the master of the National City offered to take the libelant back to San Francisco free of charge. It does not appear in the testimony at what time this offer was made, or whether it was or was not made in connection with another offer made by the master, which was that the libelants would be permitted to sell the remainder of their tickets up the Yukon, and return on the National' City to San Francisco, provided they would sign a release of the ship from further liability in the matter. The libelants may well have declined the offer to carry them back to San Francisco if it was made at any time before they finally abandoned their plan to go to Dawson City. It appears that the expense of passage and freight up the Yukon by the river boats then available was exorbitant, being $125 for a passenger and $200 a ton for freight. The libelants had not enough money to pay these rates. For aught that appears in the evidence, they may have refused the offer to carry them to San Francisco in the expectation that the ship would yet procure them the means of transportation to Dawson, or that they might otherwise reach their destination. Under the evidence which is before us we cannot say that the court erred in allowing any of the items which were decreed to the appellees.

The decree will be affirmed.