THE EUZA S. POT'rER.
to have been framed on basis of such usages, although to one of the contracting parties these usages were unknown. The construction of a charter-party should be liberal, agreeable to the real intention of the parties, and conformable to the usage of trade in general, or of the particular trade to which the contract relates.. 1 Add. Cont. § 221; 1 Pritch. Adm. Dig. 473-487; Macl. Shipp. 361; 1 Pars. Shipp. & Adm. 319, and note. Construing the charter-party in question by the light of these princi.pIes, I a.m bound to hold .that the stipulation in reference to drought, in order to give it any effect or operation at all, must apply to the rivers and creeks from which the supply of timber for. Moss .Point came, in , view of the usages of the particlliar port and trade to which the contract relates; and being satisfied from the evidencethat tl;1e droughtprevented or delayed the delivery of the cargo to the ship, I am of opiniop that.the and cargo are released from any liability: for demurrage by t4e exceptions. in the andtl;lat Aone is que. is contended on the part of the defense that. libelan.ts the vessel at all hazards, or Pl,\Y for the delay; that they l1J;ld could have obtained a cargo elsewhere. If, they were ,frorq. the contract by bringing themselve,s llnder the in it, my is that they were under no legal .qbligation to go elsewhere cargo. . But, when they ll>unll they would not be able .to the sl1ipwith t4o. cargo, as by the contract, t)1ey we1';e ;Q!)der amorll.l obliga)ion all could to save the ship and owners from lOBS;. This I think. the· proof shows they did. . If the libelants pad, accepted thl'l 'bill of 1adillg given them as a proper one; with no. in;teI),tion at the time of they could not maintainthiss!J.it. But the evidence, me they diq. not so accept of Dow. and Capt. ,Dakin is clear !is .to this.. ' Hence it. The .wy opinion is that li1:)l)lants were entitled to a clear bill of lading, and '\Vas duty to sign a:clear bill. . . . ,:M;y judgment is that libelants are eIJ.titled to a decr.ee.as damages, no actual damages l;1avaga.inst defendant Dakin for Jug been, &l;1owu; .and I think the for general relief in the libel is to warrantsu,ch a decree. But I consider therlil is no legal Firilk & Co., and. as to them the libel is A decree will be entered in accordance with this opinion.
. ,., ,.
THE HELENA. and others, Owners,
. . ; .
(District Oourt, D. Oonnecticut.
COLLISION-ExCUSABLE BREACH OF RULE.
Where a vessel sailing on the ocean on the starboard tack, and having the right of way, crosses the track of another vessel sailing in an opposite direction, on the port tack, and the latter fails to fall off and give the former the right of way, ·the former, on finding that a collision is imminent, is justified
in starboarding her helm, &J;ld letting her main sheet run, in order to lessen the force of the collision,and 'will not be liable for a breach of rules in doingso.' , '
Samuel Park, for libelants. Silas A. Robinson, for 'claimants.
SHIPMAN, J. This is a libel in rem, for damages caused by a collision. About four o'clock on the morning of March 11, 1887, the schooner Eliza S. Potter, then on voyage from Newport News to Providence, Rhode Island, collided, at a point about six miles north and east of Hog<Islarid light, with the schooner Helena E. Russell, then on a voyage from: "Norfolk to Norwich, Connecticut, and was-seriously damaged. ' To damages suffered from said collision this libel was brought. The' facts' are as follows: At the time of the collision, the lights of Mch vessel were properIyplaced, and were burning brightly. The wind was about north by west, and was, blowing a good breeze; the sea was choppy'; the m:oon was about full,and the night was clear. The Potter was sailing upon an easterly cpurse, upon her port tack, about four miles an hour. The Russell' was sailing, at about the same rate of speed, upon,'awesterIycourse, on the starboard tack, under foresail, jib, and reefed mainsail; and close hauled. The Potter saw the red light of the 'Russell when she was 'about two miles off. The Russell had the right of way, and continued in her course, supposing that the Potter would keep out of her way,and go astern of her; but the Pottoer kept on her course until it Was too late, and a collision was inevitable. If the Russell had then continued 'her course, the Potter would have struck her head on, and nearly amidships, and would have caused a disastrous collision. The master of the Russell, perceiving that his vessel was abont to be struck by the Potter, put his helm hard starboard, and let his main sheet run, to diminish the force of the collision, and receive a glancing blow, for the purpose of saving serious injury to his vessel" and 'in the exercise of good judgment. Immediately, the Potter struck the Russell on her starboard bow, and caused some damage. Before the collision, the Russell's men shouted to the Potter to keep off. For three or four mInutes before the collision, no one of the Potter's crew was forward of the foremast. At the time the Potter was reefing her mainsail. The accident was occasioned by the negligence of the officers of the Potter in not keeping off and away from the Russell, and in not yi('lding to her the right of way. Whether the Potter attempted to alter her course before a collision was inevitable I do not know. The collision was not caused by any want of care or skill on the part of the officers <;>fthe,Russell. The act of the captain of the Russell in starboarding helm, and letting the main sheet rlin, was proper, under the circumstances existing at the time of the maneuver· . The libel is dismissed with costs.
CLEVELAND & M. R. CO"
HANDY and another, Trustees,
CLEVELAND & M. R. Co. and others.
8. D. Ohio, E. D. 1887.) 1.
The receiver of an insolvent railroad company cannot unjustly discriminate in the charges imposed upon rival shippers over his road, in order to increase his revenues, and, if guilty of discrimination, may be removed by the court therefor.
The Standard Oil Company having threatened to store its oil until it could lay' a' line of pipes to MarIetta, unless the receiver of a railroad company .should give it a special oil rate, the receiver agreed to carry its oil at 10 cents per barrel, to charge rival shippers 35 cents per barrel, and to pay 25 cents per ban'el of the sum collected from rival shippers to the Standard Oil Company. Held, to be such and wanton discrimination. on the part of the receiver as to 'require his removal.