Ross et ale .
(Oi'I'cuit Court, E. D. Louisiana. March 26,1888.)
A charter-party provided that the charterer should have the opUon of can· eeliI!g it, if the ship wa,s not ready for a cargo of "lawful merchandise" on or before a certain day, and that he should have notine of such readiness. It appeared that at 2:50 P. H. of the day fixed, and while the ship was hunting a landing, so that notice could not be speedily delivered the charterer first notic!! of his intention to ship grain, which, was shown to be "lawful,' but not "general merchandise," requiring special preparations to make a ship ready for it. The ship was ready for a cargo of "general merchandise," and the requisite notice given the charterer at 4:12 P. H. of the day fixed. Held, that the ship complied with the charter-party, and that the charterer's refusal to furnish cargo was a breach of contract, the notice of intention to ship grain Dot being in reasonable time. '
In an action for refusal to furnish cargo according to the terms of a chartE!rparty, libelant may recov,er fan difference of freight between a cargo obtained and that contracted for, less freight refused hecause of space occupied by extra fuel required to make a longer voyage, but not for expenses incurred to :\\x .defendant's liability;;heship being unconditiopallyrefused, nor for dillllUrrage, when the ship was loaded in less time after the contract was repudiated than was allowed by the charter:party. party, where defendant afterwards offered to take the. ship at a lower rate, tlie difference between the two rates will betaken as the measure of damages, the case offering no better, and such a course being fair to both parties.
TO LOAD-MEASURE 011' DAHAGES.
8. BAME....,()FFER TO LOAD AT LOWER RATB·. ,1p. an action for refusal, to load a ship according to the terms of a charter-
Libel for damages. On appeal from district court. Libel for damages for breach of charter-party, by Thomas George Greenwell against Ross, Keen & Co. JaB. Me Connell, for libelant. Huntington and JQSePh P. HfYmOT, for.claimant.
, PARDEE, J. The charter-party contains, among others, the following stipulations,. to-wit: "Thatthe>vesselshall, with aU convenient speed. sail and proceed to New ,Orleans.all'S near thereto as she can safely get, and there loap under the rules and regldations of the New Orleans MaritimeA,ssociation, from the said merchants" their agents or assigns, as customary, a full and cOillIJlete cargo of lawful at the option oithe charterers. Fonrteen weather working days are to be allowed charterers for loading said vessel, which time is to commence on the day after the vessel is ready with clean-swept holds to receive cargo, and written notice (with surveyor's certificate of readiness attached) given of same to charterers. Should the vessel not be ready for cargo, at New Orleans, on OJ' before, the 28th December, 181i3, the charterers or theil' agents have the option of canceling this charter." , These, 'provisions, taken together, show that under the contract the ship could be refused, provided that the vesselshould not be ready for cargo at New Orleans on or before the 28th December, 1883; that the ship was to be loaded under the rUles and regulations of the New Orleane Maritime Association with a full and complete cargo of lawful merchan-
GREENWELL V. ROSS.
dise at the option of the charterers; and that the time for loading was to commence from the day after the ship should be ready with clean-swept holds, and wl'itten notice thereof, with surveyor's certificate attached, Ahould be given to charterers. From the evidence in the case there is a distinction to be noticed between general merchandise and lawful merchandise. Grain is included in the latter and not in the former. It is also to be noticed that for a cargo of grain special preparations as to r6adiness for cargo are required. As the vessel was to be in New Orleans ready for cargo on or before the 28th December, 1883, under penalty of cllncellation of the at the option of the charterers, and as the character of the cargo was also at the option of the charterers, it would seem that under the contract it was the duty of the charterers to give reasonable notice to the ship of the kind of cargo intended to be shipped, if the cargo intended was such as to require special preparations, in order that the ship should be re.ady to receive it. The ship was in New Orleans on December 28th, 1883, ready to receive a cargo of general merchandise, and charterers were notified thereof, in writing, at 3:50 P. M., and again notified in writing at 4:12 P. M. of that day; the latter notice having attached surveyor's ·certificate of readiness for general cargo, the latter eJf;ecuted at 3:45 P. M. If the time of day at which this latter notice was served cuts any figure in the case, (which I am inclined to doubt, for the option of canc.eling retained by the charterers does not refer to the rules of the New Orleans Maritime Association, and the loading, not the arrival, was to be governed by said rules,) then I think it clearly established by the evidence that the delay was imputablp, to the charterers in not selecting an available landing; and that, even under these circumstances, the notice was given in time. . It seemsunper the eviden<;:e that the first written notice given by the charterers of any intention to ship grain was at P. M. of t,he 28th, f!,t the time that the ship was hunting a landing, and when it could not be speedily delivered; and was not in reasonable time to prepare the ship for grain, if notice of readiness, with surveyor's certificate, was required to be given in writing, and was also required to be given to the charterers previous to 4 P. M. of that day. The evidence is somewhat conflicting as to any verbal notice being given of an intention to furnish for the part or the whole of the cargo. The conversations of defendant with Foster, clerk of the ship's agents, even if expressing a fixed purpose to furnish a cargo of grain, cannot be considered as notice to the ship; and by Mr. Ross' evidence, he was not then clear in his statements to Foster. He says in his examination in chief: "The night of the 27th I told Mr. Foster that if I had to load the Lemuria, that I intended to ship grain on her." On cross-examination he says he told Foster that ,he should give her a part cargo of grain. This is indefinite, and, if the conversation took place as stated, it bound the charterers to nothing, much less the ship. The next verbal notice claimed by the charterers was in conversation between Mr. Ross and Mr. Hall on the 28th December, sometime .between 12 o'clock M. and 2:30 P. M. I do not find that Mr. Ross testifies specifically as to what was said in this conversation, but v.34l!'.no.8-42
that, 1n. he gave notice of intention to load the steamer with grain ..' Mr. Hall testifies that Mr. Ross in conversation said that he might gi\'eher grain, but that the written notice of 2:50 P. 1\1. was the first information that the positive intention of the charterers to load the ship withgrll,iri. The entire evidence on the subject of verbal notice leads me to the conclusion that at' no time previous to 2:50 P. M. of'the28'th did the charterers communicate to the ship's agepts any positive'iptention to ship grain, and even to doubt whether they had any such intention in their own 'mind. This conclusion is supported by the fact that in the written hote of 9:50 A. M. nothing is said in regard to cargo. And it may be said with regard' to this notice, that while it. intimates that at that time no wharf had been engaged for the Lemuria, Lincoln, of the firm of Ross, &00., testifies that at 7 o'clock on the morning of the 28th he had procured an assignment from the harbormaster for 'the' Lemuria outside ofthe "Hector," and within an hour, tawit, by 8' O'ClbCk, he had reported the fact' to the office. The conduct of the parties, and' the confiictilig evidence in the case, is only explainable by the fact that rates of freight had fallen since the charter-party wasexecutedj'the ship had been delayed, her'agents and master were making 'stremioUs efforts to sav-e the charter-party, While the charterers were anxious to cancel the' cha.rter-party, and were throwing such obstacles in, the', way 'as a ,technical ,construction of the would seem to permit: 'On the as did thedistrict'judge, that in substantial compliance with' the charter-party, the ship Lemurra waS at NewOtleans ready on tho28th day 'of December,1883, and that it was 'a bteach of contracHor tbe charterets to refuse tofurnish cargoaccor,ding to the terms of said charter-party. The claimed by1ibelli1'lt for thil? breach of contractaremade up of the in freight as per freight list actually obtained, and :treightas' p'et'charter-party, to which is added the difference incommisIsions, insti'i'tuice; and. inpri6e 'of coal at New. Orleans and at Halifax, tlli'eedays'ldemurrage, notariea'fef;s, court fees, and stenographer's cbarge8, aU amounting to $3,024.12. 'Undoubtedly tbe'difference of freight between the cargo ()btained and' the one contracted for furnishes tbe best rule for theasbertainment of the amount ofda111ages. To be conclusive oil the parties, however, the cargo obtained andtbe voyage should be substantially the SaInEl8.B provided for in the charter-party. These'conditions do not· eflst in this case. ,The charter-party provides for a voyage to a direct port in tbeUnited Kingdom or on the continent,' with deviation to Halifax for 'coal; and tbat the vessel should take sufficient coal 'at New Orleans to steam aU the way frdm New Orleans to Halifax, and no more; and that the whole of said steamer, including all securely covered spaces On deck, and any ballast tanks arranged for cargo, with the exception only ofthe captain and officers' cabins, engine and boiler bouses, engine-Tq'om, .()rdinary side bunkers, the necessary room for the accOmmodatiOl1' of the crew, and the storage of the suils, cables, and provisions, be for tbe sole use;!itid at the disposal of the charterers for cargo. The voyage actually made, and for which cargo was obtained, was di-
rect to Liverpool, withoutdevintion to Hl\Wax,and much" cargo space specified 'in charter-party) }Vas necessar:ily taken up by the additional amount of coal required to steam all the way to Liverpool. The libelants' bill shows that this additional amount of coal amounted to 200 tons, aJ:ldthe evidence shows that freight was turned away from the vessel, and that that amount of space utilized would have realized about $1,000 additional freight charges. The stipulation in regard to coaling at Halifax was in favor of charterers, and to the detriment of the ship, ,as it creased the cargo's space, and necessarily prolonged the voyage, with port charges a,t Halifax. The less price of coal at Halifax was a point in favor of the ship, but the advantage was offset by port charges and eXipenses. , .", Under this sLate of facts I am at a loss to the libelant can claim as a part of his damages the difference in price of coal at New Orleans and at Halifax. Nor do I understand why the damages should be enhanced by notaries' fees, court's fees, and stenographer's charges. The libelant was at liberty to incur such expenses; but, as the ship was unconditionally refused at 4:12 P. M. of the 28th, such expenses to fix liability were wholly unnecessary. Any other view would defeat libelant entirely, for the notice of 2:50 P. M. of the 28th required for a part cargo of grain, and she was never so fitted the ship tQ was to be loaded unand tendered.' Under the charter-party the der the, rules of the New Orleans Maritime Association, and 14 weather working- days were ,allowed in which to load the vessel. Under this contract and the said rules, weather working days do not include Sundays, nor holidays, nor days on which business is interrupted by weather; and said rules provide further th,at rain dUring' working hours previous rain after noon previous to noon shall prevent that day from to 4 P. M. shall prevent that half of the day from counting., ,Under the evidence, and applying the said rules, and counting December 29th as the first day, the loading orthe Lemuria after the charter was repudiated, didilot consume 14 weather working days, so that it would seem that the repudiation of the charter gave rise to no claim for damages by way of demurrage. There is evidence in theiecord that after the repudiation of the charter, the defendants offered the agents of the ship £40 (5 shillings less than price in the charter-party) per net registered tQn, other conditions similar to previous charter-party. This ofrer was not"accepted by the agents of the ship. It is urged in this case, by the libelant, that this offer shows that the charterers refused the vessel for no other reason than the decline in freights. The defendant Ross testifies: "We made this offer for the expre3s purpose, of limiting any loss that might arise should a lawsuit De entered for damages, which we were informed was intended." The took this offer as made in good, faith, .audas the best guide,: under ,the circumstances of the cnse, in fixing the dmnages t? was entitled for of cOll.tract., It. ccl'tainly,is a gl11de to wl'nch the defetldants cannot object. If we take hbelant's blU and eliminate ther.efrom the.nmOl1l1ts (:harged for coal and demurrage,
and deduct $1,000 for loss of cargo by taking coal in New Orleans,-'three deductions which should certainly be made,-we have nearly the same amount as we obtain if we take the offer of the defend.ants. above stated, as determining the damages. Therefore, as the amount of dam- . ages as determined by the said offer is fair to the defendants, not unjust to the libelant, is the best the case offers, and was approved by the district judge, it will be taken in this court as the basis for a decree. This fixes the libelant's damage at 5 shillings sterling per net registered ton of the ship. Let a decree be entered in this case in favor of the libelants for $1,296, with 5 per cent. interest thereon from January 15, 1884; the defendants and their sureties to pay the same, together with the costs of the district court; the libelant to pay the costs of transcript and of this court.
BAJ,TIMORE. 1 CO. 'V. THE BALTIMORE.
(Di8triot Oourt, 8. D. NeU! York. March 22,1888.)
COLI,ISION-STEAMER AND FERRy-BoAT-CROSSING COURSES. '
The steamer C., while cominKdown the North river, and approachinghel' wharf in New York city, was run into by the ferry-boat B., which was nearing her slip in New York on her trip from Jersey City. Each vessel signaled her .intention to pass ahead of the other, and each kept on her course until within some 200 feet of the place of collision, when both reversed. Held, that the C. was in fault (1) for not avoiding the B., which was on her starboard hand, and not signaling in time; (2) for attempting to pass to the left. when that course was not necessary, without a preViOtlS understanding by signal with the ferry-boat; and (8) for not reversing sooner. Held. that the ferryboat was also in fault, though she had the right of way, for not stopping and backing when the purpose of the C. to go ahead became clear, and it was manifest that the C. could not, or would not, by her own efforts, avoid col· lision. Ferry-boats must observe the usual rules of navigation when not so near their slips that observance of such rules will occasion embarrassment in en· tering.
.mAdmimlty.· Libel for damages. II. D. Van Orden, for libelant. Biddle &; Ward, for claimant.
BROWN, J. At ahout half past 7 in the morning of September 15, 1886, as the libelant's side-wheel steamer Catskill, was coming down the North river /lnd approaching her wharf at the foot of Jay street, she came in collision with the ferry-boat Baltimore, which was coming up from the Jersey City ferry to her slip at Desbrosses street. '1'he starhoard bow of the ferry-boat struck the starboard bow of the Catskill about .50 feet
'Reported by Edward G. l:Ienedict. Esq., of th" New York bar.