WATTS V. CAMORS.
This manner of arriving at a solution of the question before the court renders it unnecessary to comment upon the cases which have been cited, further than to say that in all the cases decided by courts of the United States where salvage has been allowed, the property saved was either the ship, her cargo and freight, or derelict property, or property abandoned upon the navigable waters, and in all the cases where it has been disallowed the property saved was neither. I except the caSe of Four Cribs of Spars/Taney, 533, where the usages of the lumber business seem to have controlled the court. See The Hendrick Hudson, 3 Ben. 419; Salvor Wrecking Go. v.. Sectional Drg-dock Go. 3 Cent. Law J. 640; Thackeray v. The Farmer, Gilpin, 524; The Belfast, 7 Wall. 637; 1 Conkling, Adm. 8; 50,000 Feet of Lumber, 2 Low. 64; A Raft of Spars, 1 Abb. Adm. 485; 28 Bales of Gotton, 9 Ben. 48. The plea to the jurisdiction is maintained, and the libel dismissed.
J. B.CAMORB & Co.-
(Oircuit Oourt, E. D. Louisiana. June, 1881.)
The representation of the registered measurement of a vessel In a charterparty is to be taken as merely descriptive, when the evidence shows that it was known to neither of the parties at the time the contract was entered into, and neither party was entrapped or mislead thereby, and when the contract, taken as a whole, shows that the real consideration actuating the charterers was the actual carrying capacity of the vessel.
The court will not, at the instance of a party, construe a contract so that it would be necessarily void at the option of said party, if it dOt::s not appt::al' that both parties intended it should be so construed. 3.
SAME-MEASURE Oll' DAMAGES ll'OR THE VIOLATION Oll'.
The amount of damages to be awarded for the violation of a charter-party must be estimated by the rules of the commercial and admiralty law, and be the actual damages suffered, and not the amount of the stipulated penalty, although that might be the measure of damages under the law of the place where thl> charter-party was made.
In Admiralty. J. R. Beckwith, for libellant. Henry G. Miller and J. Ward Gurley, Jr., for defendants.
-Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
PARDEE, C. J. This cause, and submitted at the last term) grows out of a charter-party entered intobetw.een the parties at the city of New Orleans on the t;lleventh. day of August, 1879. The charter-party is in nearly the usual foxm, and only three quotations from it are necessary to present the case as it stands before the court: (1.) "This charter-party, etc., between A. B. French & 00., agents for the owners of steam-ship Highbury, of the burden of 1,100 tons, or thereabouts, register measurements, due here between the tenth and twentieth of September, of the first part," etc. (2.)" The said party of the second part doth engage to provide and furnish to the said vessel a full and complete cargo, say about '11,500 quarters of wheat in bulk, and pay," etc. (3.)" To the true and faithful performance of all and every of the foregoing agreements, we, the said parties, do hereby bind ourselves, our heirs, executors, administrators, and and also the said vessel's freight, tackle, and appurtenances, and the merchandise to be laden on board, each to the other in the penal sum of estimated amount of freight."
The evidence taken in the case shows that the Highbury arrived on time, say September 9th, and on the 11th of September reported to the defendants as ready to comply with the terms of the charterparty. The defendants replied by letter on the 12th of September as follows: NEW ORLEANS, September 12, 1879. Jacob Garson, Master S. S. Highbury-DEAR Sm: 1Ve have received your notification stating that the S. S. Highbury, under your 'command, is ready for cargo, and have trans.mitted said notification to Gordon & Gomilla, to whom we had sold the charter of said vessel. These gentlemen return for answer that they decline to accept said vessel under said charter, in the charter. on the ground that the actuaUpnnage iS,greater than They further call upon us to deliver a steamer of tbe mentioneli, and we also call upon you to do the same. Yours, truly, l Signed] J. B. OAllORS &; 00. On the twentieth of September defendants wrote to the master of the Highbury declaring themselves released from the obligations of the charter-party, and calling for a similar steamer. The Highbury waited the necessary time, and September 30th the master of the Highbury made public protest, which was served on the defendants, and thereafter the Highbury took on a cargo of cotton andoil cake, and sailed for Liverpool. The actual tonwtge of the Highbury 1,203 tons, and the ship could carry about 11,5QO quarters of wheat. A ship of 1,100 tons cannot carry ove.r 9,500 to 10,000 quarters of wheat. It appears that in dealing with cargoes of wheat in bulk usage allows a margin of 10 per cent. either way, but lio more. The libella,nts demand judgment for the full amount of the estimated
freight, the penalty for default stipulated in the charter-party. The defendants claim that the representation in the charter-party of the register measurement of the Highbury was a substantive patt. of the contract, amounting toa warranty, and as the Highbury's actual tonnage largely exceeded the representation by over 100 tons, the defendants had a right to reject the ship and disregard the charter. Andthe defendants further claim that as they rejected the ship at once, it was the duty of the master and owners to at once have taken in othet cargo, lessening any damages that might follow from the avoid. ance of the charter-party; and that, in fact, thereafter the ship ,did receive a more valuable freight, and therefore was not damaged at all by the conduct of the defendants. ThE! ;first question to decide is as to the effect of the misdescription of the' register measurement of the Highbury. -'There is much evi. dence lmaring on the customs and usages prevailing among shippers ()fwheat as to the size of cargoes, and what will avoid contracts for grain in bulk. - And in this case there is evidence tending to show that charterers bad no wheat to ship, and that freights were lower in September, 1879,than in and also tending to show that defendants were informed before the charter-pa.rty was made of the actual carrying capacity of the Highbury;brit all of'this is immaterial in the view I take of the contract. -The contract, taken Ita a whole, can be made only by considering tlte1representation of the register llleasurementas descriptive merely; in fact, the evidence shows that it was known to neither of the parties at the time the Charter-party was entered into. The real consideration of the contract was, in the course of things, the carrying cap!.\city of the ship, and this is shown by agreement on the part of defendantstofiunish a cargo of, sa.y, about 11,500 quarters of wheat. As the defendants ask the court to construe the agreement, it would be necessarily void at the option of the defendants. If a ship of 1,100 tons carrying capacity had been tendered they could reject it, as it would not carry about 11,500 quarters of wheat, the stipulated amount of cargo. If a ship were tendered able to carry a cargo of 11 ,500 quarters, then they might reject it, as they have in this case, because the tonnage was over 1; 100 tons) tegister measurements. In other words, the charterparty was binding on the owners, but might use their pleasure. The court can not give any such construction, as the terms of the charter-party do not warrant it. description in the charter-party of the registermeasuremel1ts oithe Highbuty wtt.sa mererepresent;a-tion; and' not a;warranty; :and
as it was not fraudulent. and did not entrap or mislead the defend· ants. will not vitiate the contract, although the .actual measurements exceeded the represimtation by some 100 tons. See Ashburner v. Balchen, 3 Selden, 262; Barker v. Windle. 6 Ellis & Black, 675; Thomas v. Clarke, 2 Starkie. 450. The authorities cited by defendants' proctor all cover cases where the misrepresentations affected the time of receiving or delivering the cargo, or of the sailing or arrival of the vessel. which may well enter into the object and consideration of the contract. To my mind it is clear that the defendants were in default for not complying with their contract, and are liable for the damages resulting. What is the rule of damages is to me a very serious question. The libellants claim that. as the contract was entered into in Lou· isiana, the law of Louisiana forms part of the contract. and under that Jaw (Civil Code. arts. 2117-2129) the full amount of the stip,. ulated penalty, the estimated amount of freight, is claimed. The defendants claim that the charter-party is an admiralty contract. to be enforced and construed by the settled principles of admiralty law; wherever the contract is made. that it is usually made on land, must be made somewhere, but wherever made. does not change or affect the principles of admiralty law which a court of admiralty enforces. And they claim. under the admiralty and commercial law. that the stipulated penalty in this case in the charter-party should not be treated as liquidated damages. but as a mere covenant to pay actual damages. The learned proctors on each side have made strong arguments, well supported by authorities,-that for the libellant being particu. larly logical and forcible, and almost compelling conviction. but for the harsh results following its application. And it might be here noticed that under the Louisiana law, as claimed. it is only where there is a total breach that the total amount of the penalty can be exacted. See Rev. Civil Code, art. 2127. The rule of damages as claimed by the defendants is the more equitable. It is the rule that prevails in the commercial world. and is the one recognized in all the text-books. See 1 Parsons, Adm. Law. 247,248; Story. Cont. § 1022; Sedgw. Dam. 436. § 301: Conkling, Adm. ve1:bo "Affreightments;" Abbott, Ship. 285. The harsh rule claimed by libellant may be, and I am inclined to think is, the law of Louisiana, (Rev. Civil Code, arts. 2117 et seq.,) and in her courts, or on the law side of this circuit court. I might, in proper cases. enforce it; but sitting in admiralty. enforcing admi·
raIty law, I feel bound to lean to the equitable rule as against the harsh one claimed. And I am inclined to the opinion that it is the duty of the United States courts, in exercising admiralty and maritime jurisdiction, under the constitution to follow the general principles of the admiralty and maritime law, as they are recognized and )revail in the commercial world, rather than a narrow local law which may happen to prevail where a charter-party happens to be made, and which law was evidently not in the minds of the contracting parties. And there is authority for this position. See U. S. v. Bank, 1 Pet. 104; The Bark Chusan, 2 Story, 456. The reasoning in Neves v. Scott, 13. How. 268, would' seem to apply to the admiralty and maritime law, as well as to the equity and law controlling the of the United States. On the whole, I am disposed to hold in this case that the penalty stipulated in the charter-party cannot be considered as liquidated damages between the parties. but that the can recover only the actual damages suffered by the default of the charterers. These actual damages are for (1) the expenses incurred in fitting the Highbury to receive a .cargo of grain; (2) the delay, after the expiration of the lay days stipulated in the charter-party, in obtaining and loading another cargo, to be allowed at the rate fixed in the contract,; (3) the loss, if any, of freight on the cargo obtained, as against that contracted to be furnished by the defendants. The defendants claim that it was the duty of the master and agents of the IIighbury to have immediately sought another cargo on the first refusal of the defendants to accept the ship, and not have wu.ited until the lay days had expired. Perhaps in some cases this might be so, but in this case I doubt if the master of the Highbury had a right to consider the first letter as a final refusal. The evidence of French, agent, is that he applied to Camors, defendant, for leave to load other cargo, and that Camors refused, and there was talk of arrangement and compromise, and even as late as September 29th letters in relation thereto passed between the parties; and each side during the lay days was threatening the other with claims for violation of the contract. So, I think, the master and agent of the Highbury had a right, and it was their duty, to wait such time as was necessary to put the defendants clearly in default. A reference is necessary to ascertain the damages recoverable by the libellants before a final decree can be entered.
THE BLUE BONNET.
(District Court, 8. D.
Yark. JaD\'lf\ry 9, 1882.)
COI,T,TSION-DUTY OF Sl'EAMER ON ApPROACHING 1UG AND Tow.
Where f\ steamer is approaching a tug and tow in a dangerous part of a narrow stream both are bound to exercise special vigilance and caution. The steamer has no right to proceed unnecessarily, so as to be set possibly by the tide upon the tow's side of the stream, but should stop betimes, if need be, to allow the tow to pass.
2. SAME-TUG AND Tow-DUTY OF-DANGER SIGNALS.
A tug and tow being in a bend of a Darrow stream, and upon the side towards which the tide directly sets, should not occupy unnecessarily the full hplf of the stream. If they do so, the tug is bound to give danger signals upon the first indication of possible collision, and to cilange her course betimes and give way as much as possible, and stop if
SAME.,..,.RIVER NAVIGA'I,'ION-BoTH IN ]'AUI,T.
Where the steam-tug B. B. was coming down the Raritan river against a flood tide with a tow of canal-boats, in all about 95 feet wide by 300 feet long, attached to the tug by hawsers 40 fathoms in length; and was in a bend of the river from 350 to 400 feet wide on the side towards which the flood tide was setting from a straight reach helow the bend, and the steamer A. was coming up the river with the tide, each having propel' lights and dUly signalled by the other when half a mile apart to keep to the right, and where each kept on in full view of the other's lights, and both ported at about the ,same time, but too late to avoid a blow from the tug upon the port quartpr of tIle, steamer, whereby the course of the latter was so changed as to carry her with the tide against the tow, wllereby one of the canal-boats was sunk: Held,-upon contradictory testimony as ·to the place of the collision in the stream, each vessel claiming that she was hugging her own side of the river,-that the towfuUy covered her own half of the stream, and that 1lOth the tug and steamer were hi fault.
Benedict, Taft cf Benediet,for libellants. Beebe, Wilcox tX Hobbs, for the Blue Bonnet. Owen cf Gray, for the steamer Annie. BROWN, D. J. This libel is filed by the owners of the canal-boat Cato to recover damages for the loss of the boat and cargo through a collision on the Raritan river in the evening of April 7; 1879. The Cato formed one of 14 boats in tow of the steam"tug Blue Bonnet, bound from New Brunswick to New York, andattaohed by a port and starboard hawser about 40 fathoms long,runningto each side of the tow. There were three tiers of boats-five in the two forward tiers, and four in the after tier. The Cato was in the head tier, and was the second boat from the port side. They left New Brunswick at about 6 P. M. and reached the place known as the Brick-