the refusal to receive the cargo on account of the size of some stones, appears to have arisen from the failure of the lighters to be along-side the ship and ready to receive cargo, or from rain, for which delay, of course, the ship is not responsible, it appearing that she was able and ready to discharge 80 tons per day when weather permitted. I am of the opinion, therefore, that the charterer has no claim upon the ship, either for delay or for injury to the lighters, and is liable for the balance of freight unpaid, amounting to $500.14. He is also, for the reasons already stated, liable for six days' detention of the vessel, which, at the rate mentioned in the charter-party, amounts to $293.70. In addition to these sums I am of the opinion that the libelants can recover $14 paid by them to a tug employed to move the ship from the berth selected by the charterer to another berth where the discharging could go on without interruption from passing boats, such expenditure having been made at the request of the charterer, and being incidental to the discharge of the cargo. The libelant is also entitled to recover interest on the above amounts. Let a decree be entered accordingly.
'l'HE MARIA LUIGIA. 1
(District (Jourt, E. D. New York.
BREACH OJ!' CHARTER DENCE.
EN'fRY IN Loa-EVI-
DEVIATION-DAlIfAGlll TO CARGO -
Where the charter of a vessel which brought a cargo of green fruit from Messina to New York contained the clause that, "being essentially necessary for the good preservation of the cargo, it is especially agreed that the vedsel,' on leaving Gibraltar, shall go to the northward of the Western islands, and keep north of that latitude unless absolutely forced south by stress of weather, in which case' the vessel's log-book shall furnisll evidence of that fact;" and it appeared in evidence that the vessel, after passing Gibraltar, kept the port tack on a course which would have taken her north of the Western islands, but afterwards chnnged her course to tile starboard tack, and the entry in the log, made at the time, was, "on account of high sea have taken starboard tack," and she passed to the. southward of the islands, and an action was brought against herior damages for breach. of charter-party: held, that, as the vessel was close-hauled on both tacks, and the wind and sea continued the same, and therefore changing the tack brought no relief from the high sea, the entry in the log stated a motive other than the real one for the change of course, and showed no reason for changing the course; that even if the existence of.a cU17ent setting the vessel to the eastward be conceded, it could not be concluded that such current compelled the change of course, because the only reason stated in .the log for. the change of course was the high sea; that as it had not been proved that the master was forced by stress of weather to deviate from the voyage which he had contracted to make, the vessel was liable for iny damage to the cargo that was causoo by the unjustified deviation·.
Reported by R. D. & Wyllys Benedict, of the New York bar.
THE HABll LUIGIA..
Lorenzo DUo, for libelant·., Jas. K. Hill, Wing et Shoudy, (Robert D. Beaedict, of counsel,) for
BENEDICT, J. This action is founded upon a charter-party wherein the master of the Italian bark Maria Luigia agreed to transport in that vessel a cargo of green fruit from the port of Messina to the port of New York. Among other covenants the chartel'-party contains the following:
II Being essentially necessary for the good preservation of the cargo, it is especially agreed that the vessel, on leaving Gibraltar, shall go to the north· ward of the Western islands, and keep north of that latitude unless absolutely forced south by stress of weather, in which case the vessel's log-book shall furnish evidence of that fact."
The breach assigned is that the vessel willfully, and without being forced by stress of weather, did not keep north of the latitude of the Western islands, but took the southern passage. The damage claimed is injury to the fruit to the extent of $30,000. The case, as I view the testimony, turns upon the question whether the course pursued by, the vessel on April 18th, when she abandoned a course to the northward and took up a course to the southward, was forced upon the master by stress of weather. To the navigation on that day, therefore, attention is directed. It appears in evidence that the vessel, after pa'ssing Gibraltar on April 15th, worked to the northward on the port tack until the eighteenth of April. That day found the vessel proceeding upon a course which, if continued, would have cal'ried her northward of the Western islands. On that day her course was altered, and she bore to the southward on the starboard tack, and thereafter, with no important exception, continued her way to New York upon the southern course, passing to the southward of the Western islands instead of to the northward of them. The log for that day shows that during the first twelve hours of the day the wind was fresh from the third quadrant, the sea high, and the vessel under topsail, foresail, mizzenstaysail, and jib. At midnight the entry is, "squally weather, light wind, and the vessel sailing under reefed topsail and foresail, and working heavy on account of high seas." At 5 A. Y. the entry is, "on account of high sea have taken the starboard tack." The last entry of the day is, "up to midnight less wind;" At the time of the change from a northward to a southward course, thus described, as also appears by the log, the vessel was to the southward and westward of Cape St. Vincent, some 22 miles to the westward of the cape, and distant therefrom some 45 miles. '. , It is my opinion that when, as thus described, the master .aban· doned the port tack, he abanddned the northerly passage fora south. erly one,. and the question, therefore, is whether, under the of the charter above quoted, the facts thus stated in the log-book prove that the master was forced by stress of weather to a.bandon the
northern passage, as he did on that day. Upon this question my opinion is adverse to the claimants, and for this reason: the log-book, it will be observed, states the reason for changing from t4e port to the starboard' tack-that is, from the northward to the southward course-to be this, namely, to relieve the vessel from the labor she was subjected to in the high sea nmning, and no other reason is alluded to. But the vessel was close-hauled on both the tacks, and the wind and sea continued the same. The vessel would therefore labor as much on the starboard as, on the port tack. Changing the tack as she did could not bring relief from the labor. The log, therefore, states a motive other than the real motive for this change of course. This' circumstance gives ground to infer that the real tive would not bear disclosure, and permits the surmise that the motive thus concealed was similar to the motive alluded to by Judge LowELL.in deciding a case not unlike the present in some features, namely. to "take the easy and comfortable passage where the tradewinds prevail." The John Fl. Pearson, 14- FED. REP. 749. But the' claimants contend further that the case is not to be confined to the fact stated in the log, and that, in addition to the wind and sea. described in the log-book, a current setting to the eastward must' be taken into the account; and tha.t the wind and sea, as stated in the log, together with an easterly current. forced the master to abandon the ,northern passage in order to escape the peril of being carried by the wind, sea, and current in dangerous proximity to Cape , St. Vincent. If the existence of a prevailing easterly current in the locality where the ship ,WitS when she tacked on April 18th, as well as where she would have been had she not tacked, be considered as proven, still I am not, able to conclude that the effect of such current, acting with the wind and sea described in the log, would have been to put the vessel in peril if she had continued the port tack. When the vessel , tacked. she was 45 miles to the south Itnd west of Cape St. Vincent, and although compelled by his charter to justify his change of course by his log, the master in the log makes no allusion to any current, and nowhere suggests that the current was what forced him, to tack, or intimates the existence of any danger from Cape St. Vincent if the northern course be continued. On the contrary, the log gives a different reason for the change, namElly, the necessity of relieving the vessel from labor in the high sea. Now, indeed, the master says dangerof being carried too near Cape St. Vincent by the current compelled him to abandon his tack on April 18th, but the 0I11ission to mention the existence of such a danger in the log warrants the infexenc.e idea that it was dapgerous tp continue the port tack ap. easterly cunent is an after.thought, and without foundation in .fact. My conclusion; therefore, is that. neither the facts stated in the logbook nor those facts coupled with the fact that an easterly current
prevails at the locality where the ship abandoned the northern for the southern passage, pro.ve that the master was forced by stress of weather to deviate from the voyage which he had contracted to make. It follows that the ship is responsible for any damage to the cargo that was caused by the unjustified deviation. . The decree must be for the libelant, with an order of reference to ascertain the amount of the damages aforesaid·
S. D. New York. November 27,1883
CoLLISION-OVERTAKING VESSEL-DUTY OF GIVING WAY.
Where a collision took place in the East river. between a steam ferry-boat and a steam lighter while the ferry-boat was overtaking and passing the lighter, the evidence as to the immediate cause of the collision being conflicting, held, that the primary cause of the collision was the fault of the ferry-boat in approaching the lighter within less than 20 yards, in violation of the state statute which required her to keep at least that distance off. skill to avoid collision, no matter what the prior fault of the other vessel. 24. Rule 24 in effect requires each vessel togive way in the presence of immediate danger. Held. therefore, that the steam lighter in this case was also in fault for keeping straight on her course without giving war:at all, as she might easily have done after the ferry-boat had approached withm 15 or 20 feet, aqd was passing ahead, though somewhat crossing her bows; and. on this ground, held, that the lighter could recover but half his damages.
2. !:lAME-DUTY OF EACH VESSEL. In admiralty each vessel is held bound to use all reasonable vigilance and
In Admiralty. Chas. E. Crowell, for libelant. Beebe If Wilcox, for claimants. BROWN, J. As the libelant's steam lighter the Amelia, loaded witn 900 barrels of sugar, was coming down the East river against a strong flood-tide, about 1 P. M. of September 27, 1880, bound for pier 36. East river, the ferry-boat Warren, running from Williamsburgh to Roosevelt street, New York, overtook her and wa;s passing on the starboard side of the Amelia. When nearly past. her, the port quarter of the Warren. about 15 feet from her stern, came in collision with the starbard bow of the Amelia, causing the latter some damage, for which this suit is brought to recover compensation. The collision was near the Brooklyn shore, between Bridge and: Oath.. arine streets, at a distance variously estimated by the different nesses of from 75 to 250 feet. Above the Catharine-street 'pier there is an eddy on the flood,tide, in which it is:said the Amelia,was run. ning. The witnesses on each vessel claim that the ather vessel gave a sheer towards the other, and each continued straight on. .