,THE'RIGHARD S. GARRETT.
it does not appear that t46 amounts allowed are greater than the evidence warrants. Mr. Ma'rtin, as the respondents' agent, not only examined and approved the bills which entered into the average adjustment while it was being made, but approved the adjustment when it was made up, and, in answer to the respondents' inquiries, informed them that it was correct. This testimony was explicit upon the trial. The respondents had full knowledge of everything that entered into the adjustment long before, and it does not appear that any objection was made. On the trial the principal bills were presented and marked as exhibits, and a large bundle of the others was produced and presented, for inspection with the adjustment. In connection with Mr. Martin'S evidence I think the adjustment, under such drcumstances, is prirrut facie evidence of the correctness of the items contained in it. The charges for services and commissions were proved, and no evidence against them offered. No question as to the general details was made, or could, under such circumstances, properly be madp-o To the cargo, as entering into general average, objection was made; but that item benefited the respondents. Now, objections to the freight are sought to be raised; but the aggregate amount charged agamst the respondents, as insurers of the vessel, is only their proportion of about $83, gOO, as the whole amonnt chargeable against the vessel; and this amount remains after excluding the balance of about $2,700 in favor of the freight. complained of in the general average allowance. So that, again, no prejudice to the respondent in this respect is shown. As- to the other items referred to in the affidavits presented on this motion on both sides, it does not seem probable that any injustice has been done to the insurers in adopting the figures of the adjustment a8 to the extent of their liabllity. The cargo adjustment gives an advantage to the insurers, if a general average was not warranted. The litigation has been on wholly different questions; and I must decline to enter anew upon the details of the adjustment which were approvud by repondents' agent, acquiesced in by them, anrl not brought forward until after the decision of the cause. Motion for reargument denied.
THE RICHARD MCCARTHY
(D£strict Oourt, B. D. New York.
'December II, 1890.)
Where repairs were made in New Jersey on a vessel, one of whose owners resided in New Jersey but the other two in New York, and in the application for license at the custom-house all of her owners were stated to be of New York, ana the material-man had no knOWledge to the contrary, and dealt on the credit of the vessel, heM, that a'suitin rem would lie to recover the price of the repairs.
LIENS-REPAIRS-REsIDENT OWNER-LwENSE.,....CREDIT TO VESSBL.
Reported by Ed ward G. Benedict, Esq.· of the New York bar.
FEDERAL REPORTER ,
. In Admiralty. Suit to enforce a lienior supplies. Wing, Shoudy Putnam, for libelants. Peter S. Carter, for respondent.
BROWN, J. The work on the repairs and the value are admitted as claimed. The claimant alleges that the libelants agreed, in the settling of the former disputed bills, to allow a credit of $100 upon the present bill, which the claimant asked for in consequence of an average charged him by the insurers. The claimant testified to such an agreement, but this testimony is contradicted in all its parts by tne libelant, with whom the conversation is stated to have been held. The burden being upon the claimant to establish such a defense, and no writing or other evidence being produced to sustain this claim as opposed to that of the libelant, I am obliged to treat it as not proven. It is further claimed that a suit in rem will not lie, because one of the claimants,. an owner of one-third interest, was a resident of New Jersey, where the repairs were made. The tug, however, hailed from New York, her other two owners were residents of New York, and in the application.for her license at the custom-house in New York all of her owners were stated to be of New York. The libelant had no knowledge to the contrary, and rightfully supposed she was a New York vessel, dealt with her as such, and made the repairs upon the credit of the vessel. Under such circumstances she must be treated as a New York vessel. 'fhe St. Jago de Cuba, 9 Wheat. 416, 417; The .Francis, 21 Fed. Rep. 715, 717; The Jennie B. Gilkey, 19 Fed. Rep. 127; The Ellen Holgate, 30 l!'ed. Rep. 125. The New Jersey law, moreover, gives a lien in such
The defense not being established, decree for libelant for $106 and costs.
et ale v. W ALBH.· . Oourt, 8. D. New York. December 6, 1890.)
CHARTEB-PARTY-REFUSAL TO LOAD-DAMAGES-FILLING PRIOR CONTRACT-MARKE'r VALUE.
Where a chartered vessel refused to take the cargo, (lumber,) and, owing to the consequent delay in arrival, the charterer was compelled to fill a contract of sale made long before by buying other lumber at a higher price, and there was no evidence of any fall in market price between such purchase and the arrival of the charter cargo, held, that the difference between his contract price and the price paid was not the rule of the oharterer's damage, but the'l'all in market price, if any, during the delay in arrival; and, if there was no fall, then the only damage was the interest on the llmount paid. for the lumber so purchased during the time that elapsed before the charter cargo arrived.
SAME-WHARFAGE EXPENSES-HANDLING OTHER CARGO.
The cargo destined for the chartered vessel lay on a wharf obstructing other loading,and causing extra expense in handling other cargoes over it. The evidence showed that the expense tbus incurred wasless than the cost would have been to remove the cargo there waiting until it oould be shipped. Held that, treating thia as a substituted expense, it should be allowed as an item of the charterer's damage.
JReported by EdwardG.Benedict, Esq.,· of the New York bar.