THE ALBERTO. l FORSTALL and others v. THE ALBERTO. l
(Oircuit Court, E. D. Louisiana. June 12.1885.)
1. .ADMIRALTY JURISDIC'rION - MARITIME CONTRACTS - CHARTER-PARTy-ADMIRALTY LIEN.
A charter-party is a maritime contract, and within the admiralty jurisdiction. It is well settled since Insumnce Uo. v. Dunham. 11 Wall. 1, that all contracts having reference to maritime service, maritime transactions. or maritime casualties. are maritime contracts. and within the admiralty jurisdiction of the courts of the United States. Whether the jurisdiction is m rem or in personam depends upon whether the contract imports a lien on the ship.
When the terms of an offer by cablegram were ambIguous, and misunderstood by the parties receiving and accepting the same, to the knowledge of the party making the offer, it was the duty of the latter to ha"c at once given notice by cablegram of the misunderstanding, and to protest ag"il'st the acceptance as made, and their failure to do so estopped them from denying the contract as made from such acceptance of their offer. They were silent when equity required them to speak.
Admiralty Appeal. Libel for advances. Cross-libel for damages for non-execution of charter-party. Henry Denis, for libelants. Thomas J. Semmes and J. Car-roll Payne, for claimants. PARDEE, J. The libelants are ship-brokers in New Orleans, who for some years have corresponded with a firm of ship-brokers in Bridgetown, Barbadoes, by the name of Da Costa & Co. On the fifth of November, 1883, the Austrian bark Alberto was in Barbadoes, and her master, being desirous of a cargo direct for Trieste, negotiated with said firm of Da Costa & Co., who thereupon, on said fifth day of November, sent the following cablegram to libelant, to-wit: "Can you use one vessel of 500 to 550 tons-Austrian bark Alberto, Trieste, direct?" This cablegram was received in New Orleans at 3: 40 P. M. of the. same day. At what time it came to the libelants does not appear, but on the same day the libelants, answering, sent the following cablegram: "7j3d., 7/16d. and 5% cotton. Must be of the highest class." Meaning thereby, 7s. 3d. for oil, 7s. 16d. and 5% primage for cotton. At what time this offer reached Da Costa & Co. does not appear, but they sent in reply this cable: "Offer accepted; the vesselleaves to-morrow to load cotton-seed oil, for Europe, at 7/3d." This dispatch was received in New Orleans at 2: 19 P. M. of the sixth November. Exactly what time the libelants received it, does not appear; they made no answer by cablegram or otherwise. In the meantime Da Costa & Co., on the part of libelants, entered into a charter-party with the bark Alberto, under which the libelants wel'e to furnish said vessel a full and complete cargo of cotton-seed oil for
Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
Trieste, freight at 78. 3d. per round barrel. The charter-party also stipulated that the libelants should advance cash for the necessary disbursements at New Orleans at 2t% commission, and insurance. The master of the Alberto waited 48 hours at Barbadoes for a dispatch from libelants, but, receiving none, sailed under the charter for New Orleans, where she arrived on the morning of the twenty-sixth November. On the morning of the twenty-seventh the master reported to libelants. As to what was said between the parties at this time, the evidence is conflicting. Taking the libelants' version as the true one, the libelants then notified the master of the Alberto that Da Costa & Co. had exceeded their instructions; that their cable to Da Costa & Co. quoted them freight on oil and cotton, and their intention was, and the cable so expressed it, that they, libelants, were to be at liberty to load the ship with oil or cotton, or both, at their option, and that, consequently, they could not recognize the charter signed by Da Costa as binding. They also told the master that they were perfectly prepared to carry out the offer they had made, and load a ship with a cargo of oil and cotton to Trieste; but they would not guaranty, and they could not guaranty,a full cargo of oil for the ship. The master said the vessel was unsuited for cotton, and he would not take cotton; that he wanted a full cargo of oil. The libelants told the master that if he wished they would try and get him a full cargo of oil, if he would allow them to go into the market and offer the ship. After some discussion, the libelants' chartering clerk, on the captain's say so, offered the ship for a full cargo of oil; then the libelants entered the ship in the custom-house, paid the tonnage dues, and made other disbursements for the ship, as sued for in the libel. The master of the Alberto, however, did not understand the libelants' position with regard to the charter-party, for he proceeded to unload his vessel of ballast, and on the third day of December, 1883, he served on the libelants the following letter and notice:
"Messrs. ForstaU, Clayton &: Co. -GENTLEMEN: Please take notice that my vessel, the Austrian bark Alberto, chartered by you as per clurter-party dated, Bridgetown, the sixth of November, 1883, is ready to receive cargo at post 35, Third district, and that her lay days will commence to count to-morrow morning. the fourth instant. "Yours, truly. "ANDREA GRAGUEZ, Captain of the Aust. bark Alberto."
This notice seems to have cleared up the cloudy contracting atmosphere, for from this time on there seems to have been no more misunderstandings between the parties. The libelants discovered that the master of the Alberto insisted upon the charter-party as valid and binding; the captain discovered that the libelants repudiated the charter, and did not intend to be bound by it. Immediately the libelants brought their libel, seizing the ship for advances made. The owners of the Alberto responded with a cross-