unless a.nswered by counter proof, was altogether sufficient to justify the allowance of 8ueh payments. So, also, as to the damages for detention of the vessel. Demurrage, as such, IS not claimable; but why may not a rate of demurrage, fixed by the vessel's charter and established by the rules of the maritime exchange, and whieh, therefure, 1Vould have been conceded to her if dela,yed by her charterer, be taken as a measure of fair compensation for a similar loss caused by the act of a wrong-doer? I think the commissioner rightly received the evidence, and that it justified his conclusion from it. There must be, therefore, a decree in favor of the libellant, a.nd against the respondent and his stipulator, for $1,973.04, with interest from December 15, 1877, to this date, and costs.
and others v. THE SOHOONER ELIZA. B. EMORY New Jersey. November 10, 1880.)
(Oi'rlJuit Court, D.
Appeal by libellants from the decree of the district court in admiralty. Fla.nders 0: Grey, for libellants. J. Warren COllJ!.sfon, for claimants.
McKENNAN, C. J. The libellants represent the majority in interest, of the owners of the schooner B. EmorY,fl,nd have brought this su:itto obtain possession of the vessel. 'It is not denied that, under ordinary circumstances, this righi will be enforced against the minority interest in a vessel, in favor of the majority, but it is contended that John B. Clayton, whose interest must be united with that of the other libellants to make up a majority of the proprietary the vessel, is estopped from asserting his right as owner, and that, therefore, a. majority of the owners is not represented in the libel. John B. Clayton was one of the original owners aLtha Eliza B. Emory, and sailed hel," for some time as master. In April, 1874, Clayton sold to Weeks, as respondent, onesixteenth for $1,750, as a "sailing right of the vessel," and executed a bill of sale in the ordinary form. for the sixteenth part of the vessel. Weeks was then mate, took command, , and sailed the vessel until the filing oUhis libel. It is alleged that the value of a sixteenth'Yas below 75p, and that the difference between the real value of such interest and the sum paid was. the consideration of the "sailing right." Hence it is urged ,that John B. Clayton, having subsequently acquired another interest in the vessel, cannot gainsay the right of Weeks. to 'retain possession of her. The only ground upon which an eS,toppel can be supported, if at all, is to be found in the testimony of Weeks, which is to the effect that Clayton offered to sell him one,sixteenth "as a. sailing right of the vessel," and that he bought that. interest at more than it was worth, understood that he was thereby acquiring the "slj.iling right;" or, in other words,that if Weeks bought a sixteenth he would thereby acquire a right to the possession of the vessel" and to sail her as master. Now this isuot the statement qf a fact within the knowledge ,of one party upon whose representation of its existence the other party relied and was misled, but it was, the statement of a legal result as to whic,h both parties might form their own judgment, as they had likem,eans of information xespecting
it. Weeks must be presumed to have known that the legal and control of the vessel pertained to right to the the majority interest in her) and that he could acquire the right to sail her only from this interest. He is not in a position, then, to invoke the doctrine of estoppel, because, if he has made a futile contract) with his eyes wide open, he cannot secure indemnity for a consequent loss by an unauthorized retention of the vessel. Indefinite as is the testimony of Weeks) I think that, when the whole of the· evidence is considered, it imports only an agreement) at the time of the purchase by Weeks) that he should succeed Clayton in command of the vessel. Clayton so testifies, and it is not without support in the testimony of Weeks, when he says that Clayton agreed that he should "go in her," but did not recollect what he said. I think it is more than probable that the illusory "sailing right" hath this extent no more. Accordingly Clayton turned over the pos· session of the vessel to Weeks) who sailed her thereafter as master, with the acquiescence of the other owners. He thus got all that he bargained for) and is without justification for his detention of the vessel. The absolute right of the owners of a vessel to displace the master, and so reclaim possession of it, is so well settled now as to be incontestable. It rests upon reasons of public policy which are peculiarly applicable to that species of property. It may be exercised without cause, even against a master, in violation of the contract engaging him. Thus, in Montgomery v. The Owners of the General Greene, Bee's R. 388, Judge Hopkinson affirmed the right of the owners to dismiss) at their pleasure, a master who had been employed for a particular voyage, whose cargo was on board, for which he had signed bills of lading, and who was all ready and just about to sail. In affirming the decree the high court of errors and appeals say, (Montgomery Henry, 1 Dall. 51:) "As to the other point, the dismission of the captain, we are of the opinion that, upon a general retainer for no particular voyage, the captain may be dismissed at any time without cause assigned;
OLAYTON 11. 8<lHOONEB,. ELIZA D. DORY.
but that where there is a chatter-party., bills of lading; and a. particular voyage agreed upon, though the owners may dis· miss the captain, yet they would be liable in a common.law, court." . , But the master here is also a part owner. Does that give him any better right to hold the vessel than he would other· wise have? A decisive answer is furnished by section 4250 of the Revised Statutes. It is there enacted that the major. ity ownership of a vessel shall have the same power to remove a master, who is also part owner, as such majority, if owners, have to remove a master not an: owner; but that they "shall not apply where there is a valid written agreement subsist. ing, by virtue of. which such master would be entitled to possession." This not only confers upon a majority of owners the absolute power to remove a part owner from the command and possession of a vessel, becaus'e such power is exercisable by them against one who is not an owner, but by the clearest implication it enacts that nothing but a written agreement, entitling a part owner to possession, shall be available against this right of the majority. Now, if such a contract in its most comprehensive aspect, as is alleged here, had been set up against all the libellants, would it not be clearly insJ1fficient, under the statutes, to defeat their right to the control and possession of the vessel? Can it, then, have any greater effect against only one of them? Obviously, such flo discrimination has not the slightest. It results, therefore,1. That the majority (in interest) of the owners of a vessel have the power to remove the master, whether he be part owner or not, and to resume possession of her at their own pleasure. 2. That in the case of a part owner only a written agree. ment, entitling such part owner to possession, can defeat exercise of Buch right. 3. That the contract set up here is not susceptible of spe. cific enforcement, either by way of estoppel or by a direct pro. ceeding for that purpose, and hence is no defence tlgainst the libel. -
4. That the only remedy of the respondent for a breach of such contract, if he has any, is an action for damages. There' must, therefore, be a decree fot the libellants according to the. prayer of their libel, which will be prepared.
VON LINGEN and others v. DAVIDSON and others. (Libel.) DAVIDSON and others v. VON LINGEN and others. (Cross-Libel.)
(Uz"rcuit Court, D. Ma1"lJZarul. November B, 1880.)
1. CHARTER-PARTy_uABoUT TO BAIL."-The words" about to sail from Benizaf with cargo for Philadelphia," contained in a charter-party, heZd to mean, under the circumstances of this case, about ready to sail with cargo. 2. BAME-BAME.-Hdd, further, therefore, that a vessel not more than three-elevenths loaded, and the time of finishing subject to all the contingencies of wind, weather, labor, and boatlil incident to an open roadstead on the northern coast of Africa, was not" about to sail ,.. within. the meaning of the charter-party. Von Lingen v. Davidson, 1 FED. REp. 178, reversed.
(1.) The British steamer Whickham; owned by T. H. Davidson and others, the defendants in the original libel, sailed from Shields on the ninth of July, 1879, bound for Lisbon, where she arrived on the 16th, and, having discharged her cargo, sailed again in ballast on the 23d for Benizaf, on the coast of Morocco, to take a load of iron ore under a charter· for Philadelphia. She passed Gibraltar on the 25th, and arrived at Benizaf at 4: 30 P. M. of Saturday, the 26th. She began taking in cargo under the charter for Philadelphia during the forenoon of Monday, the 28th. On that day she took on board 115 tons, and on the 29th about 90 tons, but on the 30th none, and on the 31st only four boat loads. Dur-