The opinion of the court was delivered by: Waite, C. J.
G. De Forest Lord, for appellant.
E. P. Wheeler, for appellee.
This is a suit instituted by the Bank of St. Thomas, as the holder of a bottomry bond, against the British brigantine Julia Blake, her cargo and freight. The decree of the district court condemned the vessel and freight, but acquitted the cargo and its claimants. No appeal was taken on behalf of the vessel and freight, but the libelant carried the case to the circuit court for a review of the decree as to the cargo. The bond was for $11,600, with 14 per cent. marine premium, and the net proceeds of the vessel and freight were about $3,500. On the hearing in the circuit court the libel was again dismissed as to the cargo, and from a decree to that effect this appeal was taken. The facts found by the circuit court, on which, in our opinion, the rights of the parties depend, may be stated as follows:
The Julia Blake, a British vessel, owned by Peter Blake, of Nova Scotia, left Rio de Janeiro on or about the thirty-first of March, 1876, for New York, having on board a cargo consisting of 582 logs of rosewood. The bills of lading were three in number, and were drawn to the order of James Philip Mee, of Rio de Janeiro, the shipper, for 253, 139, and 190 logs, respectively. About 200 of the logs belonged to Mee, but the claimants had made advances on them to him. All the rest belonged to the claimants. The charter-party was dated March 16, 1876, and named Mee as the charterer. The stipulated freight was 220, of which 110 was paid in advance.
Mee gave the master of the vessel on sailing a letter of instructions, directing him to proceed to New York and there consign his vessel and cargo to Winthrop, Cunningham & Sons, Philadelphia, the claimants, or their agents, and if compelled, by stress of weather or other accident, to put into St. Thomas, to consign the vessel to Lamb & Co. The voyage was prosecuted with safety until the third or fourth of May, on one of which days the rigging of the vessel parted, and her masts fell, the mainmast breaking at the saddle, about six feet above the deck, the foremast at the head. The fallen spars and wreck remained for some time along-side and thumping before they could be cleared away. This rendered it imprudent to prosecute the voyage and the master properly made for St. Thomas, as a port of distress, where he arrived on the twenty-seventh of May. On his arrival he applied to the acting British consul, who appointed a survey, consisting of the harbor-master, the principal shipwright at the port, and the master of a vessel. The survey properly recommended a discharge of the cargo, and it was necessary to strip the vessel of her copper to stop the leak. The cargo was discharged, and on the eighth of June a second survey ordered by the consul on the application of the master. A copy of the second survey, although in evidence, is not incorporated into the findings, nor are its contents stated, further than that the vessel was making as much water as at the time of the first survey, and that her metal had been much broken, and was torn away and ragged.
When the master arrived at St. Thomas he went to several mercantile houses, and seemed to be seeking a proper party to whom to consign the vessel. He finally went to Lamb & Co. and engaged them to attend to the business of the vessel and the repairs. He did not show them his charter-party or letter of instructions, but told them he had lost those papers.
Upon the arrival of the vessel at St. Thomas the master wrote his owner as follows:
'S. S. Beta, via Halifax.
'SAINT THOMAS, 27th May, 1876.
'Peter Blake, Esq., Parsboro, Nova Scotia–DEAR SIR: I regret to have to report that the brigantine Julia Blake, on her voyage from Rio de Janeiro, encountered heavy weather on the fourth instant, and for the safety of lives, vessel, and cargo I was compelled to cut away to righten the vessel, and to put into this port, as we were in a too-disabled condition to go north. A survey will be held on Monday, and I will supplement this letter by a telegram acquainting you what the surveyors recommend to be done in her present leaky and damaged state; it will likely be necessary to discharge to ascertain damage, and for new masts, etc. This mail closes at once, so I must defer giving you full particulars until next steamer.
'I remain, sir, your obedient servant,
On the twenty-ninth of May he sent the following telegram to the owner:
'Julia Blake, St. Thomas, dismasted, leaky; consigned Lamb; sending survey by mail.' Afterwards, Lamb & Co., on the thirteenth of June and the twenty-second of June, wrote the owner. Copies of their letters are as follows:
'French frigate Minerve, via Philadelphia.
'ST. THOMAS, 13 June, 1876.
'Peter Blake, Esq., Parsboro, Nova Scotia–SIR: We have to confirm Captain Knowlton's letter to you, dated twenty-seventh ult., acquainting you that the dismasted brig Julia Blake had put in here in a leaky and disabled condition.
'By surveyors' recommendation the vessel has been discharged, and is today on the marine repairing slip, for shipping and caulking, etc.; masts, sails, etc., are being made, and in the course of another month the Julia Blake will probably be ready for sea in a seaworthy state.
'Captain Knowlton dispatched you a telegram thus––
"Julia Blake, St. Thomas, dismasted, leaky; consigned Lamb; sending survey by mail,' –on the twenty-ninth ult., which no doubt reached you promptly and correctly. From his not receiving any reply from you, he concluded that you wished him to follow the customary routine with documents, etc. Meantime we hand, herein, certified copy of extended protest from the 'British consulate,' which may interest you. No doubt your letters will state in what manner accounts here are to be paid.
'We remain, sir, yours, faithfully,
'ST. THOMAS, 22 June, 1876.
'Peter Blake, Esq., Parsboro, Nova Scotia
SIR: We last wrote you on the thirteenth instant, via Philadelphia, with certified copy of extended protest per Julia Blake, which we trust has reached you safely.
'The S. S. Alpha arrived here to-day from Halifax without bringing us any letter from you, but Captain Knowlton tells us that he had a communication, and we, therefore, refer you to him or his advices for particulars, in connection ...