M'ADAMS V. LEVERICH.
(DiB/rict Court, S.
n. New York.
SHIPPING-CHARTER-PARTY-DEFECTS IN VESSEL.
Libelants chartered. respondent's steamer to carry passengers between New York city and Bedloe's island. On delivery of the vessel, defects were found in her engines. which prevented the safe running of the boat. Libelants attempted to repair the defects, but, being unable to do so, returned the vessel, and brought this suit for damages. The defense was that the, boat was in good order when delivered, and that the defects were subsequently occasioned by libelants' engineer. Held, on the evidence, that the boat. when delivered, was 110t fit to enter safely- upon the service for which she was engaged. through defects in the engmes; that, after unsuccessfully attempting to remedy the defects, libelants were justified in returning the boat, and entitled to recover such actual legal damage as could be shown
In Admiralty. Libel for breach of charter in delivering vessel unfit for use on route specified in charter. Wilcox, Ada'flUJ & Macklin, for libelants. Fullerton & Rushmore, for respondent. BROWN, J. On the 31st of March, 1887, the/libelants, by written contract of that date, chartered from the respondent "the side-wheel steamer lona, for the season of 1887, from the 3ist day of March, or as soon thereafter as she could be got ready, for the purpose of plying between New York city and Bedloe's island, for the sum of $2,200 for the season, to be delivered to the charterers at Fishkill." By a subsequent modification it was agreed that the steamer should be delivered to the plaintiffs at Communipaw,Jersey City. She was there delivered to the libelants on Saturday, April 2d. The steamer had two compound engines, working independently, one for each wheel. On attempting to use her, it was found that the engines did not work satisfactorily. They would stop upon the center when attempting to back; and once or twice, when the boat careened, they came to a stop without signal. Twice she ran upon the dock because not properly answering the signal to stop. This irregular action occurred on the first day of her trial, after she was delivered at Jersey City, and, according to the evidence, before any changes were made in the attempt to improve her. The engineer in charge of her at that time appears to have been a competent man, accustomed to the use of componnd engines, and to handling both together. In consequence of her irregular action bnt a few trips were made on the firilt day; and, as she was considered dangerous, she was at once examined by the engineer, and by Mr. Russell, a skilled mechanic, and some changes were made in the eccentrics. It was believed that the pistons leaked throQgh wear. The springs of the rings were found loose, and were tightened; but a complete examination could 110t be made. The engineer refused to run her. believing her dangerous; and during the fortnight following two other engineers were employed. She was tried
lReported by Edward G. Benedict, Esq., of the New York bar.
from time to time, and made a few trips, but with the same results aE' before; and on the 16th she was retllrned by the charterers to the respondent at Fishkill. The engineer, who had brought her down the river without finding any difficulty, testified that on examining her at Fishkill he found the valves changed "from the position in which he had placed them, so aato produce the irregularities complained of; that, after tighteningthe rings. and doing various other repairs upon the boat, she was run by him subsequently frorn New York to Fire island and elsewhere during the season. without difficulty. Various witnesses were called on both sides, and the conflict as to the facts is specially embarrassing. Under the provisions of this charter, it was the duty of the respondent to deliver the steamer in a fit condition for immediate use upon the route specified. In the crowded navigation of this harbor engines which would not reverse upon the proper movements by the engineer, and were liable at any time to stop onthe center, or to stopwqen the boat careened, were not fit for use, because involving great danger to the lives of her own passengers and to those on board of other vessels. This}s n.Dt disputed; bnt in behalf of the respondent it was contended that nothing was the matter with these engines until the adjustments had been changed by the libelants' men, after she was delivered. But it is not credible that any change was made in ,the adjustment of the valves, or that. the rings or pistons were changed before the trips made on the first day of service, or before the difficulties were found in running her .which necessitated the endeavor to remedy the defects. Nor can I discredit the testimony of the various witnesses who testified that she did stop .in the dangerous manner alleged. Nor is it probable that.the engineer who was first employed would refused to continue the to run her, had no existed. Reasonable efforts were made by the libelants tb remedy the defects. Notice was given to the respondent, who, after causing an examination, refused to take back the boat. But the person who made the examination in his behalf was not called as a witness on the triaL 'rhe respondent's engineer testifiel3 that when the boat was returned she did not work properly,. and, .though he ascribes this to the change in the valves, thisexplanatiori in no way accounts for the difficulties that arose before the valves were changed. It was the judgment of all the libelants' engineers and examiners that the pistons leaked. On the whole, I am of the opinion that the weight pf testimony that the boat, when delivered at Jersey City, was not fit to enter safely upon the service for which she was engaged, througp defects in the engines; that, in orde,r to remedy these defects, the libelants made all the efforts that were legally incumbent upon them; so that,when those efforts were found to be unsuccessful, they were justified in returning the boat, as they did; and they are therefore entitled to such actual legal damages as which will be ordered for that purpose. may be. shown upon the
FIVE HUNDRED .AND FIFTY. TONS RESERVE COA.L.
FIVE HUNDRED AND FIFTY TONS RESERVE COAL.
(District OQUrt S. D. New York. May.25, 1888.
SHIPPING-OARRIAGE OF GooDs-DEMURRAGE-COAL.
Claimant chartered libelant's schooner to take "a cargo of coal" from Sydney, Cape Breton, to New York, the vessel "to load in turn, subject to the regulations of the mines,_ * . and every unavoidable .hinderance that may prevent the loading * * * excepted." The charterer intended to take a cargo of "culm" coal, but this intention was not communicated to libelant. The vessel began 10adinK on the 12th of August, was interrupted for three days by preference given a steamer, under the regulations of the mines, and completed her loading on the 25th. Five days were sufficient to load the vessel. The reason of the delay was the absence of other vessels to take "round" .coal, both round and culm coal being sent together from the mines, l)nd IDining being suspended when vessels were not present to, take round coal, Held, that under the general charter for "a cargo of coal," charterers were not entitled to subject the ship to the delays incident to loadin,lt' a special kind of selected coal; that under the special exception in the charter, demurrage could not be allowed for the three days, waiting the steamer; but for the remainder of the delay, viz., five days, the vessel was entitled to demurrage.
,In Admiralty. Wing, Shoady« Putnam, for libelants. Hyland for claimant.
BROWN, J. On the 15th of July, 1887, the libelants chartered to the claimant the schooner Osseo, to take "a cargo of coal" from Sydney, Cape Breton, to New York; the vessel "to load in turn, subject to the regulations of the mine, * *, * and every unavoidable hinderance that may prevent the loading * * * excepted." The vessel arrived at Cape Breton, and reported on the 11th of August; began loading on the 12th; was interrupted for three days by the preference given to a steamer under the regulations of the mines; and completed her loading of 550 tons on the 25th. The libelants claim that five days was a sufficient time for loading, and that they are entitled to demurrage for the rest of the time during which the vessel was detained. The circumstances and custc;>ms of the at Sydney are f1tated in the case of Eleven Hundred ToW oj Coal, 12 Fed. Rep. 185, to which refE'rence has been made; and the 'proof waS similar on the present trial. But the charter in this case was not, as in that, for a "cargo of culm coal," the 10adiQg. is subject to special delays, but was for a "cargo of epa!" genenijly;; and ordinarily a cargo of" round" coal will be loaded in half the time taken for culm coal. The libelants testified that they did not.knQ",Jhat the charterers intended to take culIn coal only. The reSpondent'stlvJdence does not show that that was stated in the negotiations fot the chRrter. But the evidence shows that for some months, at wasexecpwd, round coal had ceased t() be. imported on a'cc'Ount 'afthe high duty upon it,and that the charterers at
lReported by Edward'G. Benedict,EBq.;of the New York bar. ;