et al. v.
THE uZZIiE ANiD CARGO.
(Oircuit C01trt, E. D. Louisiana. May 21, 1889.)
1. SHIPPING-CAnmAGR OF GooDs-DEJ,AY. On October 2d libelants chartered a vessel to a cargo of lumber; the vessel to be at the port of loading by October t6.th. "exce'pting the acts of God in weather * * preven ting. " and to be loaded as fast as the vessel could receive 'l'hough ready to be moved in two or three days. tt e vessel was allowed to remain moored at her wharf until October 11th. and did not reach the port of loading until November 2d. She was detained for painting four or five days longer. though it appeared that the painting could have been eompleted in three days. Fourteen days were consumed in loading. during which time the master was absent. and the loading suspended. for four days. The loading could have been done in six days. and the lumber was ready on October 15th. An old pil(l'I; advised the master to clear a certain bar when partly loaded. and have the balance lightered down. offering him lighters. but the master refused. Vvhen the vessel arrived at the bar, it could have passed over. but the master was absent. and remained away for six days. during which time he was urged to depart promptly with the cargo. The vessel did not get across the bar until December 22d. having gone aground. Libelants had meanwhile urged lightering. saying that the cargo would be thrown on their hands unless promptly forwarded. and that they would seize the schooner for damages, and had offered the master a tug to haul the vessel over the bar. which he declined. The sale of the cargo was lost by the delay. Held, that the delay in loading and departure violated the charter,party, and entitled libelants to damages. 2. SAME-FREIGHT. Though the cbarter-party provided that the freight should be paid in advance on the vessel's being loaded, libelants could properly refuse to pay the freight because of the delay.
In Admiralty. Libel for damages. On appeal from district co'ut. Following is the opinion of the district court, delivered March 20,
"The fads in this ense, established by the testimony, are as follows: On · October 2, 1888, the master and owner of the schooner Lizzie entered into a · charter-party with Hoadley & Co., the libelants, to carry a cargo of lumber of about 90,000 feet, from Jay & Davis' saw-mill, on the Tchefuncta river, near Lake POD tchartrain, to Carthagena, United States of Columbia, South America, · the vessel to be at the port of by October 15, 1888, · excepting the acts of Godin weather, such as storms, calms, head winds. preventi ng.' Abont the time of the milking of the charter-party the schooner was at Morgan City. La., she haVing her center-board out of order and having it replaced. The charterparty also stipulated that' there should be the usnal qUick dispatch in loading, ·as fast as the vessel could receive.' l'hemaster went to Morgan City. 'fhe Center-board was replaced in two '01' three days, but the master allowed the · vessel to remain inactive, and to stay moored at the wharf there. until October 11th, when he started for Jay & Davis' mill. It took him six days to come fI'oIUMo:rganCity to the Rigolletes, where, by the r]uarantine, he w(,ls detained six days longer, for not having procui-ed a clean bill of health, and he did not arrive at Jay & Davis' mill until November 2d, which will be observed was seventeen days after the time fixed for the commencement of the loading by the terms of the charter-party. Instead of proceeding at once to load, the master left the schooner in charge of a single man, and came to New Orleans and directed the schooner to be put on the ways at Madisonville for painting, where she was detained another four or five days. 'fhe evidence
HOADLEY V. THE LIZZIE.
shows,that this painting could have been completed in three days. The lumber was ready, and had been ready for a long time prior to October 15th. When the master commenced loading he consumed fourteen days in loading the vessel, and the evidence shows that loading could have been accomplished in six days at. the outside. During four of these days he again left the schooner, and all work of loading was sllspended. Up to this time there was an abundance of water on the bar, even after the master's return. The schooner at that time had nearly her hold load in, and Mr. Jay, oue of the owners of the mill, an old pilot, ad vised him to at once proceell with the cargo in the hold as far as St. Joseph's island, and to have the balance of the cargo lightered down to him at that point; offered him the lighters, and told him he would not have such an opportunity for any great length of time. The master's reply was that he knew his own business. The water on the bar fell. The master went on slowly loading until the 16th November, and loaded the schooner to a greater depth than the water on the bar allowed, and finally started down the river. After he came to the ship-yard, where his schooner had been painted, he again left the vessel anchored in the stream, with only one man, and again carne back to the city, where he remained for another period of six: days. The testimony of the mate shows that the vessel, after it arri ved at the bar, could have passed over; but the master was absent, and there was nobody there to take the vessel over the bar 'Vheu the In aster returned from New Orleans he told the mate that he was guing to have trouble with the charterers, and aske,l him to fix: up the log-book so as to fit the master's side of the case, and the log was then commenced. On November 16th the schooner startpd for the bar, anll stuck fast and remaiJwd aground until the 16th of December. The master absented himself from November 28d to Decl'mber 1st, and from 3d to December 18th, with no one on board but the mate, and a portion of the time a cook, who was not a sailor, but who was sick, and in bed. The schooner finally got over the bar on the 22d of D.'cember, when the master came to the city, leaVing his vessel at the shipyard. He was told there was urgent necessity for the prompt departure of the cargo to South America. After it was learned that the vessel was aground, the libelants sent a messl'nger over, urging him lightering, with the statement that the cargo would be thrown on the hands of Huadley & Co. unless it was promptly forwarded. These representations were 'made to the mate in chargl', who, in the absence of the master, answered that if the proppr precaution and energy had I,een used the vessel at that date-the 22d December -woulll have already deliverell her cargo at the place of destination, and have been on her way back to the United 8tates. The captain was found in New Orleans, anll informed that unless the cargo started at once the same would be thrown upon the hands of the charterers, and they would seize the schooner for any damages they might sustain. At the same time they offered him a tug to haul the vessel over the bar. This the master declined. Had there been help on board the schooner to handle her anchors she would have been hauled over the bar, and could have been lightered on the bar, as she was subsequently lightered on this side of the lake, before going into the new basin. The mere taking off of her lleck-load woulll have raised her up seven inches, and she could have gone over the bar at four or five different times. On December 22, 1888, Hoadley & Co. libeled the vessel and cargo, claiming damages $1,189 for breach of charter-party, and 011 ,January 14, 1889, the libelants discontinued the proceedings against the cargo, but reserved all rights against the vessel. :Furthermore, the evidence shows that in consequence of the delay on the part of the schooner in loading and starting on her voyage the parties at Carthagena, South America, to whom the cargo had been sold, receded from their bargain, as they had the right to do. The respondents have filed a cross-bill, asking $654 damages. The charter-
party provided that the freight should be paid upon the vessel being loaded, in ad vance. The libelants declined to pay the freight in advance. gi ving as a reason the delay which the schooner had made, and their loSs of all opportunity to sell the lumber at Carthagena. The question now submitted is whether the libelants have a claim for damages, or whether the schooner is entitled to and freight. This being the so far as it is now submitted to the single question whether the master used requisite care and diligence in fulfilling the conditions of the charter-party, did he proceed in its execution with the promptness and vigilance which were requisiteil The rule of law which must control this case is that the master was bound to proceed on his vo\'age with the tlrst wind, and he must also procf'ed in loading the vf'ssel with the reqnisite promptness. Upon the facts as they appear in the testimony for libeht'lts, (for the respnndents have put in no testimony, except three letters,) the court is of opinion that there was a failure on the part of tlie master, both in loading and in his departure, which was in law a violation of his contract; that the libelants are entitled to damages; and that the cross-bill must be dismissed. The matter is t'eferred to K. Loew, commissioner, to take evidence, and report the same to the court, as to tlte damages sUl:ltained by the libelants." R. De Gray, for libelants. Humor & Lee, for claimant.
PARDEE, J. A careful examination of the pleadings and evirlence in this case shows that the findings and decree of the district judge are correct. The delays on the part of the claimant in the execution of his contract seem to have been wanlon and wholly inexcusable, and, wholly unexplained as they are, fully justified the libelants in breaking up the voyage, and in suing to recover their property and resulting damages. The claimant is entitled to no freight, because none was really earned, and because, if earned and required from libelants, then it would merely enhance their damages, all to be recovered in this case. It is therefore ordered, adjudged, ,and decreed that the libelants, Russell Hoadley, Chester C. Munroe, and Frank Wesson, composing the firm of Hoadley & Co., do have and recover in solido from William Gandy, master and owner of the schooner Lizzie, claimant in this case, and William Cunningham and Albert Gerdes, as sureties on the release bond, the sum of $330.91 damages, and all costs of the district and circuit courts, and that execution may issue on this decree within five days after the same is entered and signed.
and THE VISION.
(District Court, S. D. New York. MRY 20, 1889.)
STRANDING VESSELS-ANCRORS AND CABLES-FOULING.
Good seamanship requires that the inboard end of the anchor cable, if fastened. be lashed with ropes only, that may be cut at a moment's notice, and the anchor slipped when necessary.
The yachts G. and V. having anchored in Larchmont harbor. and a gale arising, during which both dragged their anchors, the G. got under way for another harbor, and in doing so crossed the line of the V.'s cables and fouled them with her starboard anchor. not yet hove aboard. On being hailed to slip the cable she was unable to do so. because the chain was shackled fast, and both vessels. through the fouling, shortly went ashore. He d, that the G. took the risk of crossing the V 's cables, and of her inability to slip her cable at once, and was solely liable for the damages.
In Admiralty. Libel and cross-libel for damages. Shipman, Barlow, Larocque, & Choate, for the Vision. Eugene L. Bushe, for the Gevalia. BROWN, J. On the evening of June 28, 1888, the yacht Vision anchored near the mouth of the harbor at Larchmont, Long Island sound, from 200 to 300 feet nearer the shore than the yacht Gevalia, previously at anchor there, and also a little to the northward of her. On the following day a gale arose, blowing from the east or south-east, causing the Vision to drag her two anchols. Signals of distress were set, and help was subsequently procured by borrowing two anchors and cables from other vessels. Her four cables ranged from 20 to .1)0 fathoms; one of the borrowed ones being partly of rope, next to the yacht. With these I find that she was held safely and securely, though quite near the shore, after having dragged several hundred feet. The Gevalia, which bore off the Vision's port bow, also dragged somewhat, and her master, not wishing to remain there over night, at about 5 P. M. got under way for the purpose of seeking another haven. He was obliged to start upon the port tack, and in getting under way the GevaEa drifted astern and to leeward, so as to cross the line of the Vision about 100 feet ahead of her, or less than half the length of her longer cables; so that the starboard anchor of the Gevalia, not yet being have aboard, in crossing the Vision's cables fouled with some one of them, the result of which W90S that both vessels went ashore a few minutes afterwards, and sustained damages for which the above libel and cross-libel were filed. I think the weight of evidence is that at the time the Gevalia got under way she was from 300 to 400 feet distant from the Vision, and off her port bow; that is, at least 300 feet abreast of her, and a little ahead. The evidence also is that when she reached the line of the Vision's cables, she had attained a speed of about six knots. I am not satisfied that at t:lis speed, or about this speed, she could not then have come about and made a short tack, and afterwards resumed her port tack,