(District (Jourt, E. D. Pennsylvania. March 17,
CHARTER-PARTy-VERBAL OFFER-RENEWAL OF PREVIOUS OFFER-CHANGE IN TERMB- CONFLICT OF TE8TIMOMY - BURDEN ON PARTY ALLEGING ()HANGE IN THE OFFER.
Libel in personam by the owners of the bark Accame against Gill & Fisher, Limited, to recover damages for breach of charter-party. The testimony disclosed the following facts:
On Aprill, 1880, Pietro Accame, the agent of the vessel, gave to the respondents an option, known as a cable refusal, to charter the bark for a voyage to continent of Europe, with full range of ports. This option expired April 3d, without having been taken advantage of by respondents. Afterwards Carl Gardeicke, the Pbiladelphia agent of the bark, made a verbal offer to Mr. Barker, one of respondents' firm, to charter the bark for a voyage to the continent of which offer was accepted. Mr. Gardeicke testified that his offer contained a eondition exclUding the port of Rouen. Mr. Barker, however, testified that nothing was said about the exclusion of Rouen, and that he understood the terms of the offer to be the same as those of the cable refusal. On the day of the acceptance of the offer Gardeicke prepared and sent to respondents a charter. which respondents the same day refused to sign be": cause it contained a clause exclUding Rouen.. Subseq1}ent negotiations failing to remove this misunderstanding as to the terms onhe contract, and freights having declined. the owners of the bark chartered her at reduced rates, and tiled this libel against respondents for damages.
Edward F .. Pugh and Henry Flanders, for libellant. Richard C. McMurtrie, for respondents. BUTLER, D. J. The alleged contract is not satisfactorily proved. The contr.acting parties were Mr. Gardeicke, the libellant's broker, and Mr. Barker, of the respondents' firm. That Mr. Gardeicke intended to inform Mr. Barker that Rouen was to be excluded from the voyage, and believes he did so, is clearly shown by his subsequent conduct, as well as by his testimony taken in the case. But it is quite as clearly shown by the testimony of Mr. Barker, and his conduct at the time of the transaction, and immediately after, that he was not so informed. Mr. Gardeicke may have mentioned the subject, but Mr. Barker cannot have understood him. His telegrams of. the same day, and refusal to sign the written charter-party containing the exclusion, a few hours after the conversation, render this quite clear. The previous offer of the vessel without the exclu4ReporLcd by Frank P. Prichard, Esq., of the Philadelphia bar.
sion of Rouen, made it necessary to bring the proposed change in this regard very distinctly to Mr. Barker's mind. Although the offer accepted, Mr: Barker was justified in regarding Mr. had not Gardeicke's subsequent proposition as a renewal of it, in the absence of specific information to the contrary; and this information I am satisfied Mr. Barker did not receive, however much Mr. Gardeicke may have intended and sought to convey it. This view of the facts renders an examination of other questions discussed unnecessary. There was no contract; and the fact that the writing signed by libellant remained for soine time in respondents' possession, under the circunistances shown, is unimportant. The libellant was fully informed, from the outset, that it would not be signed, and knew it wasa£ nis disposal. A decree must be entered pismissing the libel, with,' costs 'to respondents.
(lJircuit OouH, E. D. Pennlylvania. April 29,1882.)
1, PILOTAGE-ACT 01' CONGREss-COTERMINOUS STATES.
The act of congress of March 2, 1837, authorizing the master of a vessel bound to or from a port situate on waters which are the boundary between two states, to employ a pilot licensed by the laws of either state, applies to the pilotage laws of coterminous states situated upon a navigable river which i, not a separating boundary between them. 2. SAME-OONFLICT OF LA.WS. A pilot licensed by the state of Delaware may recover forservfces in piloting a vessel up the Delaware bay and river to Philadelphia, notWithstanding a statute of Pennsylvania prohibiting anyone from acting as such pilot without a Pennsylvania license.
Appeal from 8 decree of the district court sustaining a libel filed by a Delaware pilot against 8 steam-ship for piloting the latter to Philadelphia, the defence being that the libellant held only a Delaware license, and that there was a Pennsylvania statute prohibiting anyone from acting as such pilot without a Pennsylvania license. The facts and the opinion of the district court are fully reported in 9 FED. REP. 164. Henry G. Ward, Morton P. Henry, and Richard C. McMurtrie, for a.ppellant. Curti, Tilton, Henry Flanders, and Hon. Thomas F. Bayard, for appellee.
""Reported by Frank P. Prichard, Esq" of the Philadelphia bar.