FEDERAL REPORTER j
the decree of the district, court dismissing the ,lioel was erroneous and should be reversed" and,that libelant is entitled to recover, and should ,have a decree against respondent for the smil of $3,074.22, with interest from August 27, 1887, as reported by the commissioner, together with costs in this and the distriot court; a.nd it is lloccordinglyso ordered and adjudged.
CROW 'l1" MY,ERS
(DlBtrlct OO'lJ,tt,E. D. VirginLa. February 19, 1890.)
A charter-party' provided that the"vessel chartered should, "with all convenient. speed, sail and proceed" to certain'porte', and there load a certain cargo, "and, having so loaded, proceed direct, under steam, to Liverpool. * * * The entire car· rying capacity, including cros!l-'bunll:ers, space'under bridge deck, lazarette, deckhouses, and other spaces where steamer has usually carried cargo, or would carry car!\'o if loaded on rates, shall be placed at. the disposal of charterers, exclusive of any space which may be needed for cr\lw, cabin stores, and coal for the voyage. · · * If. no heavy CRrgo be shipped, and additional ballast be req uired, the same , to be prQv,idedb,Y the steamer." It also provided that the charter should not commence "until the 'morning af,ter 'the steamel' is ready to l'eceive cargo at the place of loading, aU of her holds being ctearedand passed fol' grain, and customary notice thereof given to the charterers or t.heiragentj and such notice must be given before 12 o'clock of the day that the steamer is reaay. * * * Should the steamer not be ready in all respects for cargo, at her first loading port 'for entering on this charter, by Decembel'25,1888, the charterers may cancel theoharter. II Under this char· tel' the vessel' arrived at one of the loading ports, and gave notice of readiness on Saturday, December 22d, after 12 o'clock" which the charterers declined to receive. The notice was on Monday, the 24th, before 12., At the time of this last notice, she had not cleared, and passed to the disposal of the charterel'S, a space of 4,268 cubio feet, called the "main 'tween-decks, II or cross-bunkers, claiming it was necessary for 001'1, which the ohartel'ers denied. She had no ballast either aboard or accessible, and could get none by her cancellation date. She had not been passed for grain, and one, of her holds was wet from a leakage, 80 that grain could not have been put there without addjtional preparation. She had not coaled for the voyage. Held; that the oharterers were justified in canceling the charter on the ground that her notice of' readiness was untrue at the time it was given.
Libel in Admiralty on an Alleged Breach of Charter-Party, for Damages Claimed of ,$6,666.57. The charter-party which is th,e Qasis of this action contains, among others, the following clauses: , "NORFOLK, Nov. 15, 1888. "It is this' day mutually agreed between agents for owners of the British steam-ship Camb(,Jdia, of Liverpool, o,f 1,969 net tons register, or thereabouts, now expected Gibraltar to-da.y to New York direct, and Myers &; Co., N,orfolk, Va., chatterers. that the sl\id steamer, being tight, s,taunch, strong. &c., shall, with all convenient speed, sail and proceed in ballast to the ports of NorfOlk e.g: Newport News ag: 'West' Point, Va.,-two ports only.-as ordered on arrival at lIampton Roads. and there shall load from the agents of 'the said charterers a fuJI and complete'cargo of cotton ag: other lawful merchandise which the charterers bind themselves to ship, and, being so loaded, shall therewith proceed direct, under steam all the way, to Liverpool, Eng-
CROW t1. MYERS.
land, as maybe ordered, &c: Forty-five hundred pounds British sterling, (£4.500.) The entire carrying capacity of the vessel, including cross-bunkers, space undel' bridge deck,·lazarette, deck-houses, and other spaces whereswamer has usually carried cargo, or would carry cargo if loaded on rates, shall be at the disposal of. charterers, exclusive of any space which may be needed for the crew, cabin stores, and coal for the voyage, and owners guaranty not to occupy more space for coals belQw than was occupied on previous from the United States to Europb, when steamer was loaded with cotton for their benefit, &c. If any grain be shipped, steamer to provide necessary shifting-boards and feedE'rs, and to load under inspection of underwriter's surveyor, whose instructions as to stowage and draught of water are to be carried out. If no heavy cargo be shipped, and additional ballast be required, the same to be provided by the steamer. If the steamer be not sooner dispatched, seventeen (17) days, Sundays excepted, shall be allowed the charterers for loading, &c. The customs and usages of the ports of loading and discharging to be observed, unless otherwise expressed. Demurrage at the rate of sixpence per registered ton per day. It is agreed that this charter shall not commence until the morning after the steamer is ready to receive cargo at the place of loading, all of her holds being cleared and passed for grain, and customary notice thereof is given to the charterers or theh' agent; and such notice must be given before 12 o'clock on the day the steamer is ready, &c. Should the steamer not be ready in aU respects. fOl' cargo at her first loading port for entering on this charter by December 25th, ISBB, the charterers may cancel the charter;" etc. The Cambodia actually passed Gibraltar on the night of the 16th November. She arrived in New York on the morning of the 6th December, after a passage from Gibraltar of 19 days. On the 6th December, her agents in New York, Peter Wright & Sons, telegraphed the charterers, Myers & Co., in Norfolk, that she arrived that day, and would sail in about a week. On the 7th, Adam Wildgoose, master of the Cambodia, received a letter from Myers & Co.' asking when they might expect the steamer there, and whether he required any deadweight cargo to load cotton. Wildgoosereplied on Monday, the 10th, saying that his vessel should be discharged about the latter end of the week, (which would be the 15th,) and that, if the ship were completeiy filled with cotton, she would require 100 tons of dead-weight in the after hold, independently of the water ballast. He promised to wire two or three days before he was ready to leave New York, in order that they might have time to telegraph which port the Cambodia should go to first. The Cambodia was occupied thirteen days in discharging her cargo in New York, which was four to six days longer than her master or New York agents had expected. Onthe 15th and 17th December the master of the Cambodia received telegrams from Myers & Co. to proceed to Newport News, if not otherwise advised, by pilot. On the 19th, Peter Wright & Sons telegraphed that the Cambodia's discharge had been prevented by rain, and she would sail about 3 o'clock that afternoon. 'l'he steamer left New York about 10 o'clock on the night oLthe 19th, and arrived at Newport News about 8 o'clock on the morning of the 21st. She had brought no ballast, and ballast was not readily obtainable, if obtainable at all, at Newport News. Myers & Co. lived at Norfolk, and had no office at Newport News. A telegraph was in op-
FEDERAL REPORTER ,vol.
eration between Newport News andN'orfolk, which are about 13 miles apart, across Hampton Roads. On arrival, Capt. Wildgoose met Myers & Co.'s stevedore at Newport whotold him that he had orders for the steamer to be taken along-side 'the wharf there, pointed out the berth she was to enter, and said that Myers wanted to see him over at Norfolk. He accordingly went over to Norfolk on the 11 o'clock ferry-boat, in company with this stevedore, having employed a man to enter his ship at the custom-house at Newport News. Besides a ferry-boat direct from Newport News, ,there is a steamer that passes there, bound for Norfolk via Hampton, at about 7 A. M. Capt. W. arrived at Norfolk at 12:20 P. M. on the 21st December. On seeing Myers at Norfolk, the master informed him that his ship was ready to receive cargo, except some coals in one hold, put there for ballast. Myers on that ground, and because of some dunnage, that the ship was not ready. A conversation ensued in ,which the master that the charterers intended to ship flour and logs for dead-weight; and the'charterers inquired about logs and flour, but intended to express no present purpose to use these ar(icles,instead of grain, as dead-weight. Nothing at all was said about ballast. In' the conference the master positively refused to take logs on deck. This refusal, by requiring all logs shipped to be put in spaces available for the much more valuable article of cotton, put an end to any intention Myers might have had to ship logs. Nothing was that conversation about grain for deadweight cargo, and it was not at first thought of by Myers. The refusal of the master to take logs on deck put Myers to considering about grain, add he began to telegraph, that day,inquiries for grain. Myers also instituted similar inquiries about flour. These inquiries all related to dead-weight cargo, the main cargo, intended to be shipped in all available spaces of the steamer, being cotton. The m8$ter states that Myers engaged to give him and flour, but the evidence shows that it is not practicable for a charterer, in a case like the one under consideration, to ma.ke up his mind, before commencing to load a ship chiefly with cotton, as to the particular kinds and quantities of cargo he will put on board, and that he is at liberty to make his choice as the loading progresEles. Capt. Wildgoose returned to Newport News about 4 in the afternoon of the 21st of December, (Friday,) and set his crew to work to'clear the hold of coal and dunnage, which, he testifies, was accomplished by 6 o'clock on Saturday morning, the 22d. But the log-book would seem to show that this statement of the master was true only of the coals in the bunker, and that the coal and timber in the hold No. 3 was not cleared out until 6 o'clock P. M. of the 22d. The entry in the log is: "Saturday, Dec. 22d, 1888, at 6 A. M., coal finished; crew employed cleaning the hold. and heaving over the dunnage wood overboard. At 6 P. M. all tbebolds perfectly clear and clean, ready to receive cargo." This seems to show that the ship was not clear till 6 in the evening. On Saturday, the 22d, Capt.W. went again, on the 11 o'clock ferry-, boat, to Norfolk, arriving there at past 12. He at once proceeded
CROW V. MYERS.
to the office of Myers & CO., and handed in a letter notifying them of his readiness to receive cargo, in these words: "S. S. CAMBODIA. NEWPORT NEWS, 22<1 Dec., 1888. Messrs. Myers & 00., Norfolk, Va.-SIRS: Notice. I beg to inform you that the S. S. Cambodia, chartered by your firm to load a cargo of lawful merchandise for Liverpool. The vessel is now laying at Newport News, U. S., ready in every respect to receive cargo. or lay-days to count. "ADAM WILDGOOSE, Master." Some time after the delivery of this notice to a person in the office, Myers came in, examined the notice, and, without saying whether he acc'epted it or not, made remarks to the effect that tbe ship was not· ready, as bis stevedore bad told him that it would take a much longer time to take up the coals from tbe hold. Afterwards, about half past 2, Myers banded the master a paper declining bis notice of readiness, in these words: "NORFOLK, Dec. 22d, 1888. "Oapt. A. Wildguose, 8. 8. Oambodia-DEAR SIR: Your notice of readiness for cargo is received, but we decline to accept it; it not being given to us, aarequired by charter, before 12 :M· . -"Yours, truly, MYERS & Co." The master returned to Newport News, on the 3 o'clock on the same day. On the next day, (Sunday, the 2M,) he mailed to Myers & Co. a letter, da.ted on the 22d, which was received from the. post-office after 12 o'clock on Monday, the 24th, in the form of that which had been delivered in person on Saturday, the 22d, giving notice of the Cambodia's readiness to receive cargo. Early on the morning of Monday, the 24th, as soon as the office opened, he telegraphed to Myers & Co. in these words: "NEWPORT NEWS, VA., Dec. 24th, 18t:!8. "To Myers & 00., Norfolk: Herewith I give you notice that steamer Cambodia is now ready to receive cargo as per charter, or lay-days to count. "WILDGOOSE, Master." On the same morning, Mr. Slaughter, of the firm of Myers & Co., acconipanied by their stevedore, came aboard, and went over the Cambodia for half an hour, and then went ashore. On the same morning, two men employed by the master, viz., Jere Adams, ex-master mariner, and E. Clayton, ex-master mariner, examined the ship, and gave the master a certificate stating that they had that day "repaired on board the Cambodia, and held survey on the condition of hold, and found it in a clean and dry condition, fit for stowage of any kind of cargo." The evidence shows that thefl.oor of hold No.3, where dead-weight cargo would be stored, was ;wet from leakage, and that fi\'e or six days afterwards, when the ship was'about to take on under another charter, this hold had to he celled and otherwise made ready, by work consuming two or three days, before the underwriter's inspector would pass it for grain. The weight of testimony is to the effect that grain could not have, been stored there with safety on the- 24th December. Mr. Slaughter, of Myers &.
FEmiltAL;REf0a.TE,R" vol. 41.
Co., tp the ship in the ct;)urse,of the morning of the 24th, and handed Capt. Wildgoose a letter 'iJ;l, words: :,,"lfORFOLK, VA., Dec. 22d, 1888. "Capt. AdaW, Wildgoose, jfaster "S·. 's.Gambodta, Newport News, Va.D;EAlt SIR: . tQ the your nQtice dated Dec. 22, Qf read. iness fQrcargo,whei'ein YQU sta.teYQur, vesselis nQw ready in every respect tQ receive ca.rgQ, notice we declined tQ receive to-day, it nQt being given prior to Q'clock, as required))y' charter, we now beg tQ say that; upQn examination of your vessel, we find that she is not in every respect ready to receive cargQ, fQf the fQIIQwipg rl)l,lgQns: Fi1'St, aEj stated by yourself, she requires lOq tQns otl>allast in Qrder tQ enable us tQ IQad her full Qf cQtton. ,seccU1-d, she nas 'nQt djscharged the cQal Qut Qf her main 'tweendecks from the splice indicated 'the:'scil-1eof YQur ship as containing 4,268 cubic feet, whidhspace the scale Sb\"IWS to be included in the cargo capacity of the hQlds; third. she hasnQt beeil coaled for the vQyage 'for which she is . chartered, and is,: not, therefore, re!l.dy in every respect to load and prQceed direct tQ her destinatiQn. As these are prerequisites, under the lawandcustomQf thepQrt, Bnd charter, to give the nQtice, we cannQt deem any notice , valid without them. We are. I ' , "Yours"truly, . , '"" MyERs & Co."
of the objections;;: thus :set but, to t'Q..e notice of readiness, was the one referring to the fact that a space between decks, marked as "lXlain 'tween-decks," midships on of the ship filed in theevidenQe, and.ashaving a.. capacity of 4,268 cubic feet, had Inot been.clearedof coal, and tAad.e,ready.for cargp·. , During his visit to the ship on the morning of the: 24tp, at Newport New8, Mr. Slaughter had demanded stone ballast to ,be ,Pnt on. This. themas-ter learnE1d that he could not ,getshort of .Baltim0re,·:and offered tpfurnish coal. ballast. Mr. Slaughter objected to coal as' injurious toootton, and insisted on stone ballast. On the 25th the master received the following letter: "NORFOLK, VA., Dec. 25th, 1888. " Capt.: Adam Wtldgoose, S. S. Gam-bodia. Newp01'tNews, Va.-DEAR 81R: <Referring to our letter of the 2241 ,inllt.,we beg to nQtify yon that, in consequenceofyour steamer not being ready for cargo in the several respects mentioned therein, we hereby cancel the charter. We are, "Truly,yours, 'I: ' M y E R S & Co." :', 'rhe original charter having been canceled on the 25th December, the ': Cambodia was chartered to.Myers&,Co. a second time on the 28th day ilfthe same month, s1,lbject to a special agreement in these words: "DEC. 28th, 1888. "Messrs. Peter Wlftght & Sons, AilentB of S. S. Oambodia,New York, N. Y. ,..-DEAR SIRs: Inohartering steamer Cambodia from YQU, as Qwners' agents, on. thill that it isnnderl!to.odbetween us that it will not iqany ,waf, of either.. Qf or t.heir or ",QUl'lleJves.lllany legal steps they may :elect to take agamst us by charter-party daWd November 15th, 1888. between us and this said isteanuir. We are, . " "Truly yours, "; , MYERS & Co." f. "We agree that the above isourunderslanding also. "PEXERWfltIQ:U-r& SqNS, Acting for Owners."
The ship was loaded under the second chartering, and proceeded duly to Liverpool. After completing her loading at Norfolk, she grounded. on her way to the coal-pier at Lambert's Point. She sailed with 489 tons of coal on board, and had on hand, when ,she arrived, 68 tons, having consumed 421 tons on the voyage. She left Lambert's Point on the 12th, and reached Liverpool on the 29th, January, 1889, making the trip in 17 days. Under the second chartering, Myers & Co. claimed the main between-decks alluded to above, for cargo, but relinquished it on the steamer's agent allowing certain other spaces for cargo, not usually used or allowed for that purpose; and the ship used the main betweendecks for coal. On previous voyages the ship had carried as much as 100 tons of coal on her main, deck, when chartered on rates. In his elaborate examination, Mr. Myers, one of the respondents, stated on the witness stand, in substance, as follows: He had expected the Cambodia in Hampton Roads by the 10th or 12th of December; assuming that she passed Gibraltar on the 15th November, that she would reach New York in 17 days, or by the 3d December, and that she would be occupied 8 days there in discharging her cargo, he accordingly engaged cargo for her to leave Newport News about the 15th, and Norfolk about the 20th, December. Her non-arrival had made it necessary for him to forward the larger portion of the cargo thus engaged by four other stAamers, including 4,939 bales of cotton billed from points in the interior; three of the four steamers taking the cargo being chartered by his competitors in business. He had negotiated for the Cambodia with her agents, Culliford, Clark & Co., in Li,!,erpool. With a view to forcing, as much as might be, an early arrival of the steamer, he had named the 20th J)ecember as the day of cancellation; but, after the agents had informed him, and inserted in the charter-party, that she was expected paPsing Gibraltar on the 15th, the cancellation day ceased to be of importance, and he made it the 25th. He stated that coaling 'before loading was important, for several reasons, viz.: Loading, of course, deepens the draught of the ship 6 to 8 or 10 feet. The depth of water about the coalihg pier at Lambert's Point is 20 to 23 feet, and less at low tide. Vessels sometimes get aground in going there, and sometimes while there. They sometimes have to change at the pier from one hatch to another. If they are aground, they must wait for a tide to shift. Shippers frequently It is engage to sail within a month, or by a certain day in a important for a vessel to coal before loading, in order that these delays incident to coaling may be avoided. In respect to cattle, insurance companies will not take risks unless the ship is coaled before they are put on board. Besides, when the coal is on board and placed, the charterer knows definitely all the spaces available for cargo, and cannot know satisfactorily before; especially as to cotton, which. being exceptionally bulky and valuable, requites all the space that can possibly be obtained. He stated that shippers cannot decide how, or with what, they will load a ship, until they know her build and spaces, and sometimesuritil they have put in the greater part of the oargo. Especially is this so with cotton. Each bale represents a.freight of about $2.50. It has to be