libelant's discharge could not be had within a rer.sonable time. On the other hand, the libelant's boat was plainly an old ahd weak boat, unfit for any navigation in ice,or to withstand any severe pressure. While lying outside of three others, it was most exposed to the force of the ice in the strong flood-tide, and she was cut through where the pressure of the ice would naturally be strongest. Whether a new and strong boat could have stood the pressure in that exposed situation it is impossible to say. In analogous cases, as concerns injuries to very old boats, the practice in this court has been to allow half damages only I where no express notice of their weakness is The Reba, 22 Fed. Rep. 546; TheByracuse, 18 Fed, Rep. 828. Upon the evidence I do not think this boat was worth over $300 cash. The libelant has received $125 on account of his loss,and I award him half the residue of $175, namely $87.5,0, with interest and costs.
PETRIE· fl. HELLER.t
(Diltrict Court, S. D. Nf/U) York. June 1, 1888.)
SHIPPING-ACTION FOR F'REIGHT-SET-OFF-DEMUllRAGEPAID WUILE WAlT· !NG FOR CARGO. ·
Demurra$'e paid by respondent to a vessel for cargo to be brought. to her by hIm, can be offset under his contract for Its transportation by the libelant, against the freight dne the latter only when the liability to such special damage is fully understood. and fairly within the contemplation of the parties.
ll. SAME..,-TIME OF DELIVERy-BILL OF LADING-REASONABLlll DILIGENCE.
Libelant contracted to bring cargo in his canal-boat from New Haven. to be delivered to respondent on a schooner at Perth Amboy. Through delay in the arl,'ival of the canal· boat, respondent, under his contract with the schooner, was compelled to pay demurrage to the latter while she waited for it. This he claimed to offset against libelant's freight, and this suit was thereupon brought to recover the full freight; libelant claiming that his contract was only to deliver as expeditiously as possible; respondent, that the cargo was to have been delivered on a day certain. The bill of lading fixed no time for delivery of the cargo. Bad weather caused libelant's delay. Hela, that thll burden of proQf was on respondent to establish a positive day for the delivery of the cargo, and that, on the evidence. this had not been done, As. there was no proofQf lack of reasonable diligence on libelant's part, held, that he was entitled to full freight.
Parol evidence cannot be used to insert in a. bill of lading a. warranty for the delivery of cargo at a particular day.
In Admiralty. Libel for freight. Edward G. Davis, for libelant. Hobbs« Gij'ord, for.respondents.
BROWN, J. The above libel wl!S filed to recover the freight for transporting 114 tolis of tankage in November, 1887, from New Haven to t.hlt·
lReported by Edward G. Benedict, Esq., .of the New York bar.
;1!chooner J. H. Parker,lyiuKat Perth Amboy. The respondents claimed a deduction of $75, which they had been obliged to pay the. Parker for the detention of that vessel while waiting for the tankage; and theyalleged this to be a legal offset on account of the failure of the libelant to transport the tankage expeditiously, and to deliver the same to the schooner on the 9th of November, as they allege was agreed. ; The balance of freight was tendered and deposited in court, The original contract was made on the 3d of November, between the libelant and Mr. Schmaltz, who was acting on behalf of the respondents. There was no written memorandum of the contract. Mr. Schmaltz testifies that it was definitely agreed that the tankage should be delivered on board by the 9th. The libelant denies any snch agreement. There is no doubt that the tespOIidents desired to have the tankage delivered as soonns possi- . ble, and that Mr. Schmaltz so stated to the libelant. After the interview a written agreement was made by the respondents with the master of the schooner for the delivery oithe tankage to the schooner by the 9th of November. The tankage was not, however, loaded at New Haven until the 11th, and was not delivered to the schooner until the 16th. At the time of the conversation with the libelant, Mr. Schmaltz understood that the canal-boat Bill Stanley, on which this tankage was tobeb.rought from New Haven, was then loading with salt at Brooklyn, and. that, after being loaded, she was to be towed to New Haven, unloaded, and then. loaded with the tankage, .and to be thence brought to Perth Amboy. The respondents were aware of the delays that ensued from time to time, and that the boat was not loaded at New Haven untilthe 11th, two days after the time they say it was agreed the tankage was to be delivered. The bill oflading, given upon the receipt of the tankage on the 11th, fixes. no time for its delivery Several interviews were had between Mr. Schmaltz and the libelant for the purpose of hurrying up the tankage; at some of which Mr. Schmaltz testifies that the lihelant agreed to send a special tug to secure immediate delivery. The libelant testifies that all that he agreed to do was to hurry up the delivery as fast as possible. The burden of proof is upon the respondents to establish a positive day for the delivery of the. tankage. The circumstance that after the original bargain the respondents agreed to deliver to the schooner by the 9th, by their written contract with the latter, is doubtless entitled to some weight; but it is not at all conclusive. The time would have been suBi·cient had the weather been good, and Mr. Schmaltz doubtless supposed that the 9th was time enough. Had the agreement with the libelant been for a positive delivery on a day certain, it would have been more natural to have put the contract in writing. Several passages in the testimony as to the subsequent conversations are most compatible with the libelaI)t's statement that his agreement was only to transport the tankage as soon as possible, without contracting positively for a fixed day of delivery. The tankage was not taken on board at New Haven until two days after the 9th. I do not find any statement that the libelant at that time was charged with breach of contract in not being loaded
by the 9th. If the contract had been for a positive delivery at Perth Amboy by the 9th, it would be remarkable that the boat should be loaded on the 11 th, and nothing said before loading as to any claim of special damages for the delay. In loading on the 11th it is scarcely reasonable to suppose that the libelant understood he was loading under a positive contractto deliver on the 9th. It was not until several days afterwards that any claim for demurrage of the schooner while waiting for the tankage was first mentioned. Such damages, moreover, would not be the mere ordinary damage for the detention of such a cargo of and could only be recovered upon a special contract made in reference to the schooner, with a liability for such special damage understood, or fairly within the contemplation of the parties. See The Parana, 2 Prob. Div. 118; The GiuZio, 34 Fed. Rep. 909. The proof on this point would be insufficient to sustain the special damages claimed. If the bill of lading signed by the master of the canal-boat on the shipment of the tankage were looked to as the final contract of transportation, parol evidence could not be resorted to, to ingraft upon it a guaranty or warranty for the delivery of the cargo at a particular day; srnce that would add materially to the written contract by thrQwing upon the libelant all the risks of the weather and of the navigation. The bill of lading cannot be . thus altered by parol proof. Raw80n v. Lyon, 23 Fed. Rep. 107; Leduc v. Ward, 20 Q. B. Div. 475; The Sidonian, 34 Fed. Rep. 805. Aside fcom the bill of lading, however, I am not satisfied that the libelant made a positive contract to deliver on the 9th, or to do more than facilitate the delivery all in his power. During the 13 days that elapsed between the making of the contract and the actual delivery, the weather, for at least six days, was so bad as to make navigation on the sound in such boats improper and dangerous. Other tugs and tows. were obliged to tiE} up for better weather. Several days were lost in getting away from New York. Had it been proved any tow available to the libelant left New York for New Haven on Saturday evening, it would have been the libelant's duty to :forward the boat by that tow. But his boat would havp arrived at New Haven only Ol1e day earlier, and would not, probably, on her return have arrived in New York more than Ol1e day sooner. But there is no proof that any tow left upon that Saturday, and the evidence shows that the hoat was forwarded to New Haven on the first fit day afterwards. In the absence of a specific contract to furnish a special tug, it was certainly not the duty of the libelant to'incur that expense. The evidence shows that the cost of it would have exceeded the whole freight agreed to be paid. The libelant's denial of the alleged agreement to send such a tug is strengthened by its extreme improbability. As I cannot find a positive contract to deliver on the 9th November, and as the bill ofladillg fixes no particular day, and as the evidence does not establish any lack of reasonable diligence on the libelantis part in the transportation of the tankage, considering the rough weather, he is entitled to a decree for the full amount of the freight, with costs.
STRAUS fl. THE MARTHA.
THE MARTHA.' STRAUS
et al. v.
(DiBtrict Oourt, E. D. NfJ/JJ York.
May 12, 1888.)
SHIPPING-LIABILITY FOR DAMAGE-EXPECTED DETENTION-OFFER TO FREIGHT AND CHARGES AND SrGN AVERAGE BOND.
The steam-ship M. put into Halifax in distress. where she was detained for repairs from October until February. The consignee of glycerine on board of her, hearing of her probable detention, demanded delivery of the glycerine at Halifax, offering to pay the full freight under the bill of lading. together with all incidental expenses. and to sign a general average bond. .This was refused. and on delivery of the cargo finally in New York, the glycerine was found damaged. Held, that the vessel was liable for the damage.
In Admiralty. Ullc, Ruebsamen & Hubbe, for libelant. Hill, Wing & Shoudy, for claimant.
BENEDICT, J. This is an action by the consignee of a consignment of glycerine to recover damages of the steam-ship Martha for a failure to perform a contract of affreightment. The Martha left the port of Havre, France, bound for New York, on the 17th of September, 1884, with a general cargo on board, including 127 barrels of crude glycerine, consigned to the libelant in New York. When a few days out from Havre her machinery broke down, and she was compelled to bear away for Halifax, being short of a sufficient supply of coal to enable her to reach New York. After thus bearing away, another accident happened, which rendered her machinery useless, and she was finally towed to Halifax, where she arrived about the 1st of October, 1884. It was then found necessary, in order to repair her engine, to have portions of the engine made in Europe, which accordingly was done. This detained the steamship in Halifax until the 14th day of February, 1885. She then sailed for New York, arriving in New York on the 17th day of February, 1885. With the exception of some cabbages, the whole cargo remained undisturbed in the hold of the steamer until she arrived in New York. As floon as the probability of a long detention of the steamer became known to the consignee 'Of the glycerine, he applied to the owner of the steamer, through his agent in Ne* York, for a delivery to him of the glycerine in Halifax, and offered to pay the full freight under the bill of lading, together with all incidental expenses, and to sign the ordinary average bond. This delivery the ship-owner refused to make, and the libelant thereupon notified the ship's agent in New York that he should hold the ship for any damages that might be sustained by the detention of the glycerine. When the s,hip arrived in New York it appeared that a large number of the barrels of glycerine were entirely empty, the glycerine having leaked out, and the glycerine that remained in the other barrels
'Roported by Edward G. Benedict, Esq., of the New York bar.