dock forrepairs,this charter to be void, at charterer's option," has been referred to as excusing the delay for repaits at this port. But certainly the detention contemplated in this clause must occur after the voyage hILs commenced. The smvey, of course, was to take place in this port, and before loading, and, iD'.:unsatisfactory, the libelants might then have declared the contract off, and if,after the voyage had commellced, she had been detained for the cause mentioned, they might then have declared the contract void, and resumed the possession of their wheat. Admitting, however,that the detention in this :port after the unlOll.ding of the cargo was a detention within the purviewof this clause, it is not-apparent how this helps the case of the claimants, for the libelants, in their letter of November 7th, written after the contract for repairs was but before the work was commenced, in effect declared the contract off, and gave the claimants notice of their intention to hold them. liable for the breach of warranty of seaworthiness. The libel alleges, among other things, that the libelants were induced to enter into the charter-party by the fraud of the master, and they ask to have it declared void, on that account. The defense insists that the whole case or the libelants rests on this allegation"and contend that the proof of fraud is not sufficient,. and, therefore, the libel must be dismissed. But the libelants are entitled to such relief as the facts stated in the pleadings and established by the proof will warrant. In this case it is alleged and proved that the claimants failed to keep the condition precedent of their contract-to furnish a seaworthy vessel in all respects fitted to carry a cargo of wheat from this portto Europe, with reasonable safety and dispatch. This absolved the libelants from the performance;of their part of the contract, and entitled them to the return of the cargo, and damages for the failure and. delay. And it matters not whether the master or owners knew of the ullseaworthinessof the vessel or not. They undertook absolutely to furnish in the Director, neither a s·oft.or hardwood vessel, but one "tight, stanch, strong, and in in every way fitted" for the contemplated voyage-in otherwords,a first-class wooden vesseL ,Their ignorance of the fact of unseawOrthiness does not excuse'them for a violation of such undertaking. Not does the fact that any rumor or gosRipin shipping circles -in this port) that may have come to the ears of the libelant's agent, to the effect that the Director was a leaky vessel, or any knowledge which he may have. derived from Veritas,that she ,was built principally of soft wood, qualify the claimant's warranty, or estop the libelants from claiming the benefit thereof. Therefore I do not consider it necessary to go into the question of the fraudulent conduct of the master in the negotiation of this charter-party. But if I did, and the fact that he was aware of the condition of the vessel, and intended and endeavored to conceal the same from the charterers and the public, constitutes such conduct, there would be no difficulty in deCiding the question in favol'of the libelants. A question is made by the claimants that the wheat belongs to .Bald of Liverpool,andthat the libelants have no propellty in it,and. cannot, v.34F.no.1-5
any'suit -abolitit. r Mycon6luslon, as already pressed, is'that the sale to Baldfelbthrough because the Director was not a first-class wooden vessel......,.that being a condition precedent -of th,e contract bf'Sale. Bald testi:fied·tthat he repudiated the sale, as in my jUdgmentbi'l'had a righttmdG.' )1'hoo, by;an:arrangement between parties in Li:verpool, the,bjUs of;ladihg were returned here to the agent: of the libelants for him to take such action inre"": gard to the wheat os· he might think best. -And, theageut, who appears. partner with the, libelants since the date of this traJ,lSaction, swears pbsitivelythat the wheat belongs to the libelants. It is true that Guthrie, one ofthepar.tnersin the Liverpool house; tifies that he 'had never formally'released Bl1ld from the contract of sale; and ifhe had any claim against;him1on that account,'he expected to en,.. rorce·it.And it'is onthis'expressionof what Guthrie would,ratherthaA\ what he could, the argument against the right of the Jibelants to maintain,this suiids·based. '. ," ' , 1 " Admitting,: however, that the general propertyini the' wheat is in Bald., the libelants hold the billsaf lading with hisco!isent, and for his inter-; ests, ifhe.has any.', ,In ,HousemanV-. ThsNorth Carolina, 15 Pet. 49, Ohiet, Justice TANEY, delivering the opinion of the court, said : " We consider; it well settled\ in admiralty proceedings, that the agent of absent ownenJ may libel eithel'in his own name as an agent, or in the name of his prin-. cipals,as' h:ethinks best." · And the/holder orindorsee of a bill of lading, though not the .beneficialowner of the property, may sue for the non-delivery thereof in his 'own name. The Thame8, 14 Wall. 108; The Vaughan, Id; 266. ' The libehtnts'Rre entitled to recover the possesson of the wheat, or its money representl1tive, in the registry of the court, with damages for the violation of -the 'contract of affreightment. The damages claimed by thelibelants :are: as follows: ·For the 'difference between the price brought by the marshal's sale and that for, which it was sold to Bald, $2,981.05jinSUrancej 8850; and wharfage, Theseclairos C8nI;lot be allowed to, this extent.. . In my judgment the libelants, on .filing their bond, as they ,did, for the arrest of the wheat, oould have J1adthe immediate of the'same if . they desired it., At least they, might have specially applied for the delivery of the same or for the. sa1eOftheproperty, 'as they' did later on, and have saved the greater part of the I know that it is said that the claimahts,played the dog in the manger policy, and would not consent to a sale until they wanted an order for the sale of the ship. But; it, is none the 'less 'certain that if:application had been made by the libelants the court would·have orderedihe marshal to turn over the property or to sell the:same, andfdeposittheprocel:lds in the registry of the court. The damages must be therefore reckoned on the base (1) of the ,difference in tue price of wheahUhe date of arrest and that to be paid by Bald; and (2) the amount of insurance ahd -'wharfage incurred on account of the, wheat frotn the time it was deli\1ered to the master and replevined by the marshal. There is no proof as to what was the price bf. wheat at this
Whal-rage.· .And; tIttlesil the'parties can agree as to these facts, the case 'must be referred to a commissioner to take testimony on these points. For whatever may be found due the libelants 'under these heads, within the -limitation suggested, they are entitled to a decree against the vessel or its proceeds. Assuming that the fund in the registry of the court is not sufficient to pay the claims of the intervenors and libelants in full, what are the priorities, if any, between them. The claims all rank as maritime liens, but the time and circumstances under which they arose may affect their priority. The claim of the stevedoreis for a maritime service rendered to both cargo and vessel, and therefore he has a lien on the proceeds of both for the amount thereof. The Canada, 7 Sawy. 173, 7 Fed. Rep. 119. As between the vessel and the cargo the former is primarily liable for the claim. It is not an expense incurred during the, voyage, which might be the subject of average between the vessel and the cargo. It arose before the vessel had left her dock, and, by reason of her unseaworthiness, at the date of the charter. The claim must be first paid out of the proceeds of the vessel, and I think it ought to bear interest. The claims of the transportation company and the carpenter are not made agaj,nst th'e cargo. . The only objection that can he made to the payment of the formerpro rata with that oBhe libelants is that the service was rendered on a prior voyage,-the inward bomid one,-and it is thereforesta;le and ought to be deferred to the liens accruing since. I think it would be a harsh applicationof the rule which prefers a claim arising during a later voyage to one arising during an earlier one, to treat the. towage of a vessel up the river to this port as a service rendered on an earlier and different voyage from the retu,rnone down the river. I up and going down thenver, SO far as towage is concerned, where there is only the usual delay ill getting and taking on cargo, ought to be considered one voyage. .This claim will be paid pro rata with the damages found for the libelants. Taxable costs and disbursements will be allowed on each of the claims asa part of itj but the costs made by the libelants in arresting and keeping the vessel, having been incurred for the benefit of all the claims, must first be paid in full. '}:he claim. of the carpen.ter xp.ust be deferred to He was employed 1>Y the agents of the !lnd doubtless looked through them to the owners for his pay. The repairs were made after th.e other liens had attached. They were made to enable the vessel to commence her voyage, and not to continue it after it had been commenc.ed. Nor were they made for the benefit of the prior lienors. The claim made by the claimants for demurrage while the vessel was in the custody of the law,l1t.foUl1 pence per ton per day. the rate preB9ribed in: the. charwr in caSe the vessel was detained by the fault <;lUhe libelants, is not supported by either the pleadings or proof. The .tion was pot .clLused by the default of the libelants, but that of the claimants. And if this were otherwise, I doubt if the claimants could leave the vessel in the custody ofthe law, when she might have been delivered
date,' orwhafwas theemotlnt1idclirred
to bond or sold I claim. for such T4is, it seems" would taking of their own wrong or . . , , ,', A decree will be entered in 8.\lCol'dance with this opinion.
THE SEA.cAUCU8. 1
TaE EDWIN HAWLEY· . VAN HOBOKEN LAND
11. THE SEACAUCUS.
THE EDWIN HAWLEY.
(DiBtrict Oourt, 8. D. New York. February 11, 1888.)
COLLISION-COLORED LIGHTS-ASSUMING' POSITION IN WHICH LIGHTS SCURED.
The law that requires lights of a vessel to be visible for 10 points around the horizon is not complied with when a vessel voluntarily puts herself in a situation in which her lights will continue for some time obscured over a considerable part of, the area in which other veseels are liable to be moving. . .,
SAME-FERRy-BOAT AND TuGs-LIGHTe OBSCURED BY INTERVENING VEssELe -SPECIAL DISTINGUleHING LIGHTS. .
The S., bound to Hoboken, wae about one-third of the distanc6 from t1WNew YOl.'k shore, headed ,nearly up river, and moving about 11 knots an hour. A large Erie ferry-boat was a length ahead of her, and a little on her port bow. The emaIl tug H., bound for New York, and making about 10 knots, came suddenly, around theetern of the Erie boat, across the course of the S., and was run into and sunk by the lattef·. Neither vessel had observed the 'colored lightSbf the other until within a few seconds of the collision, and 'when it was unavoidable; the reason giVen by each being that the lights of the.otb.erwere'hidden by thlt Erie boat., Held"b()tb. in ,fault for navi, gating voluntarfly ata high rate of speed, in encha poeition, ae regard!;! the Erie boat;,that their lights were obscured to vessel!! on the other side; and as the eVidence indicated that the high, special distin'guishing lights of each might have been seell by the other over the Erie boat, held, that the failure to perceive them was a further £a\llt in each. .",
In Admiralty. Libel for damages. Two libels to recover damages sustained in consequence' of a collision, brought by Van Wie, owner of the steam-tug ljldwin Hawley, against the Seacaucus, and by the Hoboken Land & Improvement pany, owner oftheSeacaucus, against the Edwin Hawley. Oarytmter &: Mosher, for the Edwin Hawley. Abbett &: Fuller, for the Seacaucus. J.At about n..::" ,)Qat 6 lision occurred between the stelin.: North Moore street,New York, and trip from Bal'Clay street to Hoboken. ,
on October 21, 1887, a colHawley, bOund from Hoboken to the ferry-bOat Reacaucus, on her The night was aau, ..ut ;ciear,and
P. M. b&1'.
Reporte4 by Edward G."Benedict, ;Esq., of the New