FEPERAL.REPORTER. . ,;.
tiona! stipulation as while .the goods lay on the wharf cannot QP;St the Jqrisdicti,on. I agree with the district judge, that on the case should.go for libelants·.
SAME 'lI. BOHNE
SAME 'lI. :MASON
Uourt, E. D.
J"nqary 11, 1889.)
When thetiine 'of the arrival of the vessel at port of shipment is specified in the contract to furnish freight. and both parties contract with regard to it. it is in the nature of a,condition precedent to the enforcement of the contract by the owner.
S. ' SAME-CANCELLATION CLAUSE.
Where contracts for fUrni1lhing freight are entered il1to in reliance upon untruerepresentatiol1s as to the arr!Yal of the vesseL at port of shipment, Which reprellentations amount tl) a warranty on the part of the ship and her agents, they cannot be enforced against the shippers. though the contracts contained no canceling clause, " ,
In ,t\dmiralty. Appeals from district court. , Libels fot' breach of contracts to furnish freight. From a decree dismissing the libels, libela.nt ,appeals. ',E/ D. Ofltig and E:W.'Huhtington,' for appellant. 'Parrar, Jtmaa & I(rUttBchnitt;}or appellees.
',FARl?EE, J.' cases involve, substantially ,.the same facts, and have been argued and submitted ,together. They are suits brought by the owner of the steam'i;1hip City of Manchester against the several defelldaots for damages,growing out. of alleged default in the performance of c()ntracts to ftunish frllight to the, said steam-ship City of Manchester. 1'pe following are samplEls of the contracts entered into:
"GEO. GERDES. FR1!iIGHT BROKER,
"NEW ORLEANS. Nov. 2d, 1886. "MesairS:' Ross, Keen &00.:' Please eliter my engagement· to-day: 2.000 bales of cotton per SS. City of Manchester. here about 20th N Capt. - - - , for Hav.re, at t cents per lb·· with 5% primage. '" . .' GEO. GERDF& "1.0QOb/c Wm.Blake.1,OOO, L. E. Moore & Co." "En., OoUTURIE. FREIGHT BROKER, 26 UNION STREET. REMOVED TO 44
, CARONDELlj:T ST.
City of Manchester, to arrive - - , Capt. prill:lage. account of L. E; Moore,&Co." _,;, '" ':Y,?urs. respectfully,
'IYessrs. RosB.' Keen & 00.: . This day engaged 500 bales of cotton f(>r SS.
for Havre. at 25-32 at 5% . ED. COUTURIE."
GRAY V. MOORE.
267 of " City of
the On the 28d of Manchester sent the fonowing cablegralu:
Is Manchester coming?"
-And afterwards received the following answer: "CARDIFF, Oct. 25th, 1886· .. Ross, Keen & 00., New O"leans: Manchester leaving Genoa in few days for New Orleans." , Mr. William P. Ross, of the firm of Ross, Keen & Co., who made the negotiations on' the part of the steam-ship City of Manchester, testifies as (ollows: ' , "Question. Now, it is alleged on the part of the defendants that the ship did not arrive in time in order to carry out this contract, and that they were therefore released from it. An-wet'. I say at the time I made the engagements, I showed the freight brokers the copy we had received as to the position of the ship. which in the figuring had been estimated to be due about the 20th of NoYember, and it is on that alone that we made the contracts. We did not make them for the November shipments, or w,ith the canceling , " clause." The ship did not sail from Genoa in a few days, in fact did not sail from Genoa;for New untilthe 18th day of November,__ of nearly four weeks; and did not arrive in New Orleans until 6th day of December. On this showing, it seems clear that the contention of the defendants that they entered into the contracts on the faith of tbe oftbe agents of the ship that she would arrive' about November 20tp, is well fOllnded; and that the agents so understood the matter seems clear from other telegrams sent by them to the owners, to-wit: "NEW ORLEANS, 4th :Nov.,IS86. "Keen & 00. to James (]ray, Hogan, New Y01'k: Have engaged 1,100 at 25, but I lIHlst know IWI l-lOsition. Have informed shipJlers she w,ould,be here soon after 20th, as cable of 25th stated Shll would leave Genoa in a few days. Can you' meet Ross at Pensacola· for shipping convention there loth November? ;May possibly 'develop some business." . . "Nov. 5th, 1886. "Mr. James (]1'ay, Atlantic Hotel, Norfolk, Va.': Steamer's position disappoipting, but dQ not look for any trouble with engagements, as market firm. Tbink PellSacola convention worth attending." "When time, therefore, is specified, and both parties contract with regard to it, whether it be the time at which the vessel is to be ready to receive cargo, or the day of sailing, or of arrival outwards, or the day of any other event in the voyage, the courts hold that it is in the nature of a condition precedent to the rights of the owner under the rest of the Mac!. Shipp. 372. Time and situation of a veg.;. sel are materially essential parts of thE' contract of charter-party or affreightment. See Lowber V· Bangs, 2 Wall. 732; Dav1SfJn v. Von Lingen, 113'U. S. 50,5Sup. Ct Rep. 346; Norrington v.Wrighf,'115.U. S. 188,6 Sup. 'Ct. Rep; 12; Filley v. PfJpe, 115 U.S. 213,6 Sup: Ct.::Rep. ,
19; Ro71ing-Mill Co. v. Rhodes, 121 U. S. 260, 7 Sup. Ct. Rep. 882. The proctors for libelant contend that, as there was no canceling clause in the said contracts, (and on this point there is some evidence to show that the ship's agents refused to put in a canceling clause,) the contract was enforceable against the defendants at whatever date the ship might arrive. On this point it is only necessary to say that the presence or absence of a canceling clause in the contracts sued on can cut no figure; because the contracts were based upon untrue representations as to the sailing and arrival of the ship, which representations amounted to warranties on the part of the ship and her agents. It seems clear that libelant cannot recover, and judgment to that effect will be entered; costs of this and the district court to be paid by libelant.
(Oireuit (lourt, E. D. Loui8iana. January 9,1889.)
The co,nsignee of merchandise, who.is also owner, is liable for the freight thereon, though without fault of the ship's crew it has, by exposure to severe weather befo're shipment, become worthless at the time of delivery.
,In Admiralty. Libel for freight. On appeal from district court. . Libel by S. R.Seaman and others, owners of the ship Louisiana, against A. Adler and others for freight money. Judgment for libelants, and respondents appeal. Fergus Kernan, for appellants. £. ' W.· HUntington, for appellees.
"'PARDEE, J. In January, 1887, Adler & Co. ordered through merQllandise brpkers in New York 200 barrels of Irish potatoes, to be shipped to them at New Orleans.' The potatoes, were bought from Oscar Frommel & Bro., who delivered the same to the steam-ship Louisiana, consigned, to A. Adler & Co., at New Orleans. At the time of delivery to the ship the weather was very cold, and it is a fair inference, from the evidence of the case, that during the loading and hauling necessary, the were frostrbitten. On her. voyage to this port the steam-ship L,ouisia,Qa wasOelayed by an accident to her machinery some 10 'fh¢ potll.tpes arrived here in a rotten and worthless condition. Adler & <;0·. sent dpwn for a dray-load, and had carted to their store about 50 barrels, whIch they examined, and discovered the rotten condition of the potatoes;,whereiipon they refused to accept any more. The agent of thelAulsiana demanded the freight of Adler &00., which was refused, an9 Adler & Co. and the steam-ship's agent, a the shippers, Frommel & Bro., inquiring1Vhat diapo'sitiori should be made of the potatoes, and asking for aQ.thority to
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