municate with the owners, or with the owners of the cargo, according as he means to hypothecate ship, freight, or cargo, or some or all of them, whenever the possibility of communicating corresponds with the existing necessity." Macl. Shipp. 56, citing a long line of adjudged cases. The evidence in this case shows the owners' prior consent to the master's hypothecation; shows the necessity for the supplies, and the maritime risk undertaken. The application for a rehearing is denied.
THE STARLIGHT. MENEFEE et al.
(Circuit Coon, N. D. Florida. March 28,18110.)
BmPPING-OJuRTER-PARTY-AOTION FOR BREACH.
Under a charter-party providing that the ship should carry "a full cargo of timber, · · * not exceeding What she can reasonably stow and carryover and above .her cabin, crew, and fuel spaces, * * · the entire carrying capacitl · * · to be at the disposal of the charterers; · · * charterers to have priVilege of shipping a deck-load of timber, provided surveyor permits l .. the charterers are entitled to for refusal to carry a deck-load, those actmg aa surveyors agreeing that the ShIp was able. when the master uses the deck to carry coal for the voyage, and there is no evidence of any custom allowinK it.
In Admiralty. On appeal fromdistriot court. John O. Avery, for libelants. BLOUnt & Blount, for claimants. PARDEE,J. In July, 1888, the owners of the steam-ship Starlight, then at New Orleans, through their duly-authorized agents, entered into a charter-party with the libelants for a voyage from Pensacola, Fla., to Liverpool, England, to carry for charterers a full and complete cargo of timber for the lump sum of £1,750. The charter-party provided that the ship should carry "a full and complete cargo, to consist of sawn timberand 1 or deals, and I or boards, at merchants' option, . * not exceeding. what she can reasonably stow and carryover and above her cabin, crew, and fueLspaces, tackle, apparel, provisions, and furniturej * * * .that the entire carrying capacity of the steamer, including all spaces in which steamer may previously have carried cargo, to be at the disposal of the charterers. * * * Charterers to have privilege of shipping a deck-load of timber, provided surveyor permits." Further, the charter provided that, if the vessel should take 1,500 loads cargo or more, the charterers "Wpuldpay a further sum of £50, or in all a lnmp sum of £1,8ooj and authorizing the ship to call at any port or ports for coal and other supplies. When the ship reported at Pensacola her decks were covered with coal said to be required for the voyage to Liverpool. The master, however, stated at the quarantine station,. when asked why he had his coal on deck, that it was because he did· not intend to take any deck-load. The oharterers requested him to remove the coal, so as
to allow of a deck-load; and, in default of removing it entirely, to so to usestow it as to occupy the least compass, ,and enable the the balance of the deck for a load,-all of which was declined by the master. The surveyors of the port, consisting of port-wardens and pilot comtnissioners, etc., (there waSilO certain officer designated as surveyor,) agreed, in the main, that the ship could safely carry a deck-load; in fact, there was no dispute as to this proposition, because the master of the vessel proposed to Hnd did carry a deck-load of coal. During the loading of the ship, one of the hatchways ivas stowed with timber, but the master required the stevedore to take this out, and throw it overboard, and refused to permit the use of the hatchways for the stowage of cargo. When the vessel was loaded with about 1,250 loads of timber, she was declared full, and could stow no more. The evidence is conflicting with regard to the nimiber of additional loads that the ship would and could have carried, had the deck space and hatchways been utilized for cargo. The weight of the evidence, as found by the district ",as iQ favor of libelants, and to the effect that she could have carried 205 additional loads. In the preliminary correspondence, by letter and cable, between the agents of the respective parties, as to the chartering of t1JJ.e Starlight, there were representations made that the ship at New Orleans,-whether for the voyage was not mentioned; would but no correspondence was had with reference to reserving any other than fuel spaces for stowage of coal, and nothing was said as to reserving any part of the deck space for uny stieh :purpose. There is some evidence in the record tending to show that ships in the lumber trade from Pensacola sometimes load with coal for the entire voyage, and sometimes stop at , Newport News or Norfolk to coal en route. No cllstom or usage in regard to this boaling matter, however, is proved in the case; neither is any custom or usage proved with regard to stowing fuel on deck. It is a fair presumption, from the terms of the charter-party providing for an additionallump sum, if the ship would carryover 1;500 loads, that the ship was held out (not warranted) as able to carryon the voyage in the neighborhood of 1,500 loads, and that the lump sum for freight was fixed with reference to such capacity. Thecnntract does provide that all the cargo spaces of the ship, including the deck, in a contingency provided for, should be used for cargo. This agreement was violated, to the damage. of the charterers. The libel is brought in this case to recover the amount of such damage. On the showing made, the libelants are entitled to recover. The evidence being to a great extent conflicting, with a preponderance in favor of the libelants as to 205 loads of deficiency, and that amount having been found by the district court, I ain indisposed to disturb it; particularly as, from the evidence running through the transcript, not necessary to recapitulate, the violation of the charter-party, by reducingand cutting down cargo space, was intended by the master, probably, for the purpose of savilig expense of coaling en route, and of making a quicker voyage, to the advantage of owners. A decree will be entered to the same effect as that rendered in the district court, with costs.
THE NATCHEZ. NATCHEZ & N. O. PACKET CO. v. MANNllEIM INS. Co. SAME V. LOUISVILLE UNDERWRITERS. SAME V. ST. PAUL, FIRE & MARINE INS. CO. SAME V. DAKOTA FIRE & MARINE INS. CO.
(Dtstrict Oourt, E. D. Louisiana. April 25, 1890.)
:MARINB INSURANCB-Loss-PERILS OF RIVER.
Where 'insurers are notified that a wrecked vessel is abandoned to them, and the ownerll and master believe that the insurers will take posseliision of her, the fact that the master and owners take no further steps to save the vessel does not the .insurers from liability on the policy of insurance.
The fact that part of the insurance premium has been' paid by a note which' 'is overdue and unpaid at the time of the loss does not avoid the policy, but the amonnt due on the note should be deducted from the amount of the insurance.
In Admiralty. O. B.Sansom, for libelant. J. R. BeckuJith, for defendants.
BILLINGS, J. These suits were by consent tried together. Theyar.:l brought upon policies of insurance upon the steam-boat Natchez, the libelant contending that the steam-boat became a total loss under the policies; and the real question between the parties seems to be whether her destruction was under such circumstances as to make her a loss under the policies. The answers in all the cases are the Same, and besides the mattei'S set up with reference to the jurisdiction of this court over the causes, and with reference to the service of respondents through tnf-}, statutory agent, present the following matters upon the.merits:First. That the premiums were not paid in cash, but by a promissory notet which is unpaid and overdue; and that the insurance was, with certai;n exceptions, only against the unavoidable dangers of the river, and against fire. Second. That the vessel insured was not seaworthy, in that it was not furnished with sufficieht tackle and appliances, or with proper master, officers, and crew; and was unskillfully arid negligently navigated, and through unskillfulness and negligence was run upon ·a sand-bar in the Mississippi river, from which she was soon by being backed off, and' was thereafter, through negligence and unskillfulness, permitted to fill with water, and voluntarily beached or run, agroundj that thll vessel