MERRITT V. ONA.
yachts were chartered, and evidence that the rate in every instance depends upon the personal inclination of the owner; and so he allowed the libelant eight days' interest on the cost of the yacht, and this, although it is manifest that the owner had no intention of realizing interest on his investment. But proof of a rate established by custom, or by repeated similar transactions, cannot be required in a case of this description. If it appears that the yacht could have been chartered for hire, the amount lost to her owner by being deprived of ability to charter her may be shown by the testimony of those engaged in chartering yachts, as to what, in their opinion, the owner could have obtained for her use for eight days in case she had been chattered. The testimony of the witness Manning seems to me to justify the conclusion that this yacht could have been chartered by her owner for a season of three months for the sum of$6,OOO, the owner furnishing the crew. Under such a charter, the vessel would have earned for her owner in eight days the sum of $552, and that sum libelant is, in my opinion, entitled to recover for her detention. The first exception on the part of the libelant is therefore allowed. All other exceptions are overruled.
et 01. 1
(DlBtrl.ct Court, E. D. PennB1/wania. November 1', 1890.)
A contract provided that merchants should have, to load a vessel, 20 (lays, "counting from the day of readiness until the day of dispatch. It Held that, as the contraot was not one by which a present interest was vested, the "day of dispatch It and" day of l'eadiness" were to 'be excluded.
In Admiralty. Libel by John Merritt, master of the bark John R. Pearson, against Nora Ona & Co., respondents, and S. & J. Welsh, garnishees. The case turned on the construction of the following clause in the charterparty: "Twenty running lay days, Sundays excepted, are to be allowed the said merchants for loading the vessel, counting from the da)' the vessel shall have been in readiness for cargo, the captain haVing given timely notice to that effect, until her day of dispatch." Ourti8 Tilton and John F. Lewi8, for libelant. "From a day" does not necessarily exclude the day. Lysle v. Williams, 15 Sergo & R. 137. The day a vessel is in readiness is always counted. Gronstadt v. Willhoff. 15 Fed. Rep. 271. "Lay days begin to run when the vessel has, arrived." .AylwQ.1'd v. Smith, 2 Low. 192; Hodgdon v. Rail1'oad Co., 46 Conn.. 277; The 6mfton, Olcott, 49; lrzo V. Perkins. 10 Fed. Rep. 779. Technical rules of construction are nut to be applied to a charter-party. Lowber v. Bangs, 2 Wall. 738.
by Mark Wilkes Collett, Esq., of the Philadelphia bar.
James Ji!. Bullitt and,R. Dale" for, defendant. ,Where the computation is from the day of the date. or from the day an act '18 to be done. such day is to be excluded. Sheets v. Setde:n's Lessee. 2 Wall. r178:Be8t v. Polk. IS Wall. 112.; Oromelien v. Brink, 29 Pat St. 532; Mark's v' Ru.9sell. 40 J.?a. St. 372; Menges v.lhick, 7a pat St. 137; Week,9 v. 376: pqge v. Weymouth, 47 Me. 239; Bernis,v.Leonard. 118 001Vtellv. Moulton, 3 Denio. 12: People V. RaU,'oad 00 .· 28 Barb. 284: Judd Y. Fulton, 10 Barb. 117: Lang V. Phillips; 27 Ala. 311: Insu1'ance Oo.v. Palmer, 81 Ill. 88; Ohiles v. Smith's Heirs, 13 B. Mon. 461. The word ,"until" ordinarily excludes the day to which it applies. Peoplev. Walker, 17 N. Y.502; Webste1':v.French, 12 Ill. 302; Ole1'k V. Ewing, 87 Ill. 344.
BUTJ.ER,J., (after stating fh.ejacts a8 ,above.) The lil;>,elantcontends that the, enumeration ,should include the day of "readiness'?aud also that of "dispatch.!' The respondents deny that either, should ,be included. ,Tha,natul,'al reading of the language suatains the denial. , The weight of , legal.autbority also:su,stains it,-unless the contract, falls within an exception stated, where a "present interest is vested." As is said by the suprenaecQurt,oo (Oromelifnv. Brink, 29Pa. St. 522,) "the man who undertakes to reconcile the, Etiglish deoisions. op.the legal computation of time will find himself usually engaged in a hopeless task." The remark may be appliedwith equal truth to the American decisions. In Pennsylvania, GOBWiler'8 Appeal, 3 Pen. & W. 200, was overthrown by Thomaa V. AjJlick, 16 Pa. St. 14, which after being followed in Barber v. Ohandler, 17 Pat St.' 48, 'was itself overthrciwn by Oromelien v. Brink, and G08wi!e,r) 4ppeal again set feet. .cas'1(Oromelien v. Brink) presentsR frill' reVIew of the t}uestion and the authoriHes and settles rule in conforrrlity with the 'weight ofanthot1ty elsewhere. added t6\vhat ther'e is. said. It 'exbausts the subject. stated, and The' contratlt .beforeua'does not fall with,in the departure should not be extended;'it'ma.y' be'well questioned whether it would be made to-day in the absence of the precedent. It is safer to ·enforce contraC!ls:as written .than to, ,vary them tipon supposed evidence ofintentionfound.outside of their terms. : 1'he rElspondents are given 20 days forloading, "counting from the ,day of readiness. * * until the day of dispatch." This he would not have if either the day of "readiness." or the day of"dispatcb"was included il;l the enumeration. .The argument that this, view imposes two days of idleness on the vessel 'does not seem entitled to weight. ··If the. argument'is sound, the idleness is self imposed, as it results from the contract: . But such idleness is not a necessary result of our view of the contract. Her "readiness" need not cover the entire day; it may be confined to the evening; nothing more is required, and she may sail on the day of "dispatch." The respondent is required to dispatch her promptly on themorning following tpetwentietb day. GnYfL8tadt v. Witthojh15 Fed. Rep. 2n, and other aqci!edby, We' libel/!<nt,ar,e ,110t applic!1ble to the facts inVOlved here: libel must be dismissed, with costs.
PORTLAND. 'SHIPPING CO. t1. 'XHE ALEX GIBSON.
v.' rHE ALEX ,GIBSON.
O'BRIEN'll. PORTLAND SBIl'PING CO.
(Dt8tr!ct Oourt, D. WashtlJnQton, N. D.
-1. ClIARTEB-PARTY-lNTERPRETATION Oll' COliTRAOT-STEVEDORE.
A charter-party containing a clause reading, "The vessel to employ stevedore satisfactory to charterers; but, if appointed by them, the charge not to exceed that current at the time, and to be stowed under the captain's supervision and direction, " -does not the charterer an absolute right to select the stevedore. A clause so worded IS to be understood as an agreement -that the stevedore must be satisfactory to both parties; and in suuh a case the charterer is hot entitled to damages because of delay in commencing to load, resulting from a disagreement between him and the master'in regard to the selection of a stevedore. Damages cannot be recovered by the charterer by reason of the vessel having been removed from the loading port previous to the signing of the bills of lading, and Without sailing orders from him, where the master acted prudently, and for the interest of all concerned, and the charterer sulfered no loss or injury thereby.
Delay in loading, reSUlting' from the failure of the charterer and master of the vessel to agree in selecting a stevedore, where the contract requires the employment of. a stevedore satisfactory to both, does not give the vessel a right to demurrage.
'" ADMIRALTT-DETENTION Oll' VESSEL-DAMAGES.
The arrest and detention of a vessel by legal process in a suit in rem, which, al· though unfounded, is not maZa f/de8, does not entitle the owner to dama,cs. (SyZl.alm8 by th.6 Oourt.)
In Admiralty. C. E. S. Wood, for libelant. J. Haines, for claimant and cross-libelant.
HANFORD, J. The ship Alex Gibson was chartered by the libelant to carry a, cargo of wheat from Tacoma to a port in Europe to be designated bY,thll charterer. A charter-party was signed in Portland, in the state of Oregon, containing, among others, the following provisions:
"The vessel to employ stt'vedore satisfactory to charterers; but, if appointed by them, the charge not to exceed that current at the thnl'. and to be stowed under thE' CIlptain's superVision and direction. Chartert'rs to furnish the VI'Ssel with sufficient forstiffeni ng, as customary. The captain gIves them usual 48 hours' written notice of when tile vessel will be ready to take in same, and of the quantity reqUired. ... ... ... Bills of lading to LJe dUly and promptly signed when required by charterers. '" ... '" 30 working lay days, (rainy days not, to be counted as lay days,) tocommence twenty-four hours after the inward cargo ballast shall have bt'en finally discharged, and the isready to receive captain has Kiven charterers written notice that his cargo, are to be allowed charterers for loading anll waiting orders at Tacoma, as hereinbt'fore provided. ... ... ... Loading days not to commence before exceptatcharterer'soption. ... ... ... It is 3ft reed that for December 15, each and every day's detention LJy default of said parties of the st'cond part, or their agents, four pence sterling, or equivalent. per, register ton per day shall be 'paid,.day by day. by said parties of the second part. or their agent. to said party first part. or his agent." ,,