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.
In Admiralty. On exceptions to commissioner's report. Owen, Gray & Sturges, for libelants. Ghrpenter & Mosher, for respondent.
BROWN, J. The respondent having been held liable for the breach of a charter of the Caroline Miller to bring a cargo of lumber from Fernandina to New York, (42 Fed. Rep. 862,) the respondent in the report on damages has been held liable, not only for the difference of freight in sending the lumber by other vessels, but for a supposed loss occasioned to the libelants in consequence of their being compelled to purchase in New York a certain amount oflumber in order to fill in time their own contract of sale to McLean, which they had designed to fill from the charter cargo, on which purchase the libelants paid a higher price than that at which they had several months before contracted to sell and deliver to McLean. Another item allowed is for the extra cost of handling certain other lumber belonging to the libelants at Fernandina, in passing it over the lumber that lay on the dock ready for shipment under this charter. The charter did not make reference to any specific lumber, nor require its delivery at any specific time. The voyage was in fact once postponed at the libelants' request for the transportation of a cargo of railroad ties by the same vessel, and that intermediate voyage has caused all the litigation. This claim is not even for any fall in the market price of the lumber intended to be forwarded hy the Miller, but because the cargo did not reach New York in time for the libelants to fill a specific order. This order and intended destination of the lumber for McLean were not referred to in the charter, and were not any part of the contract between these parties. They were not within the contemplation of the respondent when the charter was made, nor was this alleged loss in the additional price paid one of the ordinary or natural consequences of the breach of it. Telegraph Co. v. HaU, 124 U. S. 444, 455,456,8 Sup. Ct. Rep. 577; Railway Co. v. Kellogg, 94 U. S. 469,475; The New !:,"ork, 40 Fed. Rep. 900. The loss, if any, did not arise from the breach of the charter alone, but from the libelants' special contract as well, made several months before, to sell and deliver at a price named, of which the respondent had no knowledge. Again, there was no evidence that the contract price with McLean was the market price oflumber at the time when the Miller, had she performed her charter, might reasonably have been expected to arrive in New York. The defendant cannot be held bound to such a price, fixed long before delivery by the Miller was to be expected. The contract price to McLean, fixed months before, was, moreover, no legal criterion for detE'rmining whether the libelants sustained any legal damage by the Miller's breach of charter, and the consequent delay in the arrival of the lumber. That would be determined by the market price of lumber during this interval. I do not find any evidence in the case as to the market price of lumber at any time. In the absence of any such evidence, it must be assumed that, in makinl!: the purchase to fill the McLean order, the libelants paid no more than the market price; and that when their own
lumber arrivadby; otbelvesselslli fevt weeks afterwarcls,it was worth as much as they had paid for what they purchased,and that consequently no legal damage of that kind resulted. There is no evidence of any'fall in the market price in the mean time, or that what arrived late could not be sold,·or was not sold,: by the libelants for as much as they had paid in order to fulfill the McLean contract. The burden of proof is upon ;the libelants; and, without some proof of change in market value, there is no basis to recover under this head, except for interest on the amount so purchased during the few weeks that elapsed until their own lumber .arrived to replace that purchased. Upon both these grounds, this item of damage should be disallowed. The Tribune, 3 Sum. 144, 151; Oakes v.: Richardson, 2 Low. 173, 178; The Oily of Alexandria, 40 Fed. Rep. 697, 700. As respects the other item of damage in the extra: cbstof handling other lumber over the cargo waiting 10r the Miller, I have also great doubt. Considered by itsfl1f, it. would he excluded as a remote and accidental consequence; but the evidence shows that the extra expense allowed was incurred instead of the greater expense that would have arisen from removing the Miller's cargo from the dock, where it lay waiting for her, until other transportation could be procured. There is some difficulty in determining the real damage from this cause. The commissioner has endeavored to adjust it, eVidently with scrupulous care, and on the whole I conclude not to disturb his finding in this respect, treating it as a substttuted expense in place of that which would be naturally incident to the Miller's cargo itself, and the necessary rehandling thereof in consequence of the breach of the charter. The R088end Castle, 30 Fed. Rep. 462; The Giulio, 34 Fed. Rep. 909. With the above modification, the report is confirmed.
PETTIE ". BOSTON Tow-BOAT
(Df8trf.ct Court, S. D. New York. December 8,1800.)
TOWAGB-D.uU.GliB-OLD 'VESSEL-INABILITY TO RAISE VESSEL SUNK.
Wben a barge was sunk by being negligently towed upon a sunken rock, and, in of her old and weak condition, wbich rendered raising impossible, she became a total loss, held, that full should be given to this circumstance and' the previous history of the boat by reducing the assessment of her value.
SAME-WEAKNESS NOT CONTRffiUTORT TO ACCIDENT-ApPORTIONMENT.
A previous condition of weakness on tbe part of a negligently sunk not having contributed to the accident or induced the fault, and it not being possible that any express notice of such condition could bave affected the naVigatIOn, and her old and leaky condition being known, held, that these conditions constituted no such fault in the vessel sunk as permitted a division of damages.
On tbeassessment of damages, the recoverr of a muchless sum than claimed for tbe value of an old vessel is not sufficient eVIdence of fraudulent exaggeration to deprive the plaintiff of his statutory right to costs, where the libelant's estimates are largely sustained by reputable Witnesses, .though the court adopt; a muoh smaller valuation. Edward G. Benedict, Esq., of the New York bar.
.1 Reported by