HUNT V. METCALF.
on the Vanderl)ilt saw the steamer she was already off the CortlandtStreet ferry, and then she was seen only because they "happened to look that way." The steamer was not more than 250 feet away when she was first seen by the tug Langston, then fast to the float on the lower side. No one on either tug or on the float heard the whistles of the Eldorado, which are proved by the testimony of many witnesses to have been blown. This careless method of putting a float like this out into the river was used when the condition of the fog was such as to induce vessels to run near the piers, (where it was seen that the steam-boat Starin was running,) and for that reason special watchfulness was required. The testimony makes it plain that this unwieldy float was moved out into the stream from pier 18 without any watchfulness whatever, at a time when any attempt to move her out ahead of the then coming up, was attended with danger of collision. That proper attention on the part of those responsible for the movement'l of the float would have avoided collision is shown by the fact that, when the Eldorado came up by pier 16, another float was being moved o11t into the strea1'11 from that pier by the tug Columbia; but, the steamer being seen, collision with her was avoided by timely efforts on the part of the Columbia, although the steamer came on without change of course or slacking of speed. For these reaS01)S, my conclusion is that the damages remlt,ing fro111 this collision must be apportiolled. The tug Vanderbilt has been made a party to' the action upon the petition of the steamer, and the tug Langston is lost; but, inasmuch ae the tugs and the float were owned by the same owners, it is, I suppose, unnecessary to distinguish between the liability of the float and the liability of the Vimderbilt.
HUNT V. METCALF
(District Court, S. D. California. June 29, 1891.)
A charter-party for the period of six months contained the clause: "Vessel, if kept over the charter time, the same rate as the charter, with the priVilege Df six months over the charter if wanted." Held, that the charterers had the right to keep the vessel for such time as they wished, not exceeding six months additional in all, at the charter price.
SAME-PLACE OF DELIVERy-TENDER.
Where the charterer is to deliver the vessel to the owner at the home port or another, at the latter's option, tender of her at either port is sufficient to relieve the charterers of further liability, where the owner fails to exercise the option.
In Admiralty. David L. Withington, for libelant. Brosseau, Hatch &: Thomas, for respondents. Ross, J. The case shows that the respondents, who are residents and .merchants of Santa Barbara, were desirous of chartering a vessel to en-
gage in hunting otter; llnd learning that the libelant was the owner of the schooner Ethel, which is a registered vessel of 31 tons burden, and whose home port is San Diego, where the libelant resides, arranged with him to take the schooner to Santa Barbara, that the parties might enter into a charter-party,-respondents agreeing to pay libelant the costs incurred in taking the vessel to that port. Accordingly, the Ethel was taken to Santa Barbara by the libelant, and there, on the 8th day of April, 1889, he and the respondents entered into the charter-party whir:h forms the basis of this suit. Three hundred dollars were thereupon paid to libelant by the respondents upon the charter, and respondents also paid to him the costs of taking the schooner from San Diego to Santa Barbara. Stores for the hunting trip ,were thereupon put on board, and the respondents' hunters and boat-pullers went on board, and libelant paid off his men. When it was sought to make a change of masters at Santa Barbara, it was found that the custom-house officer there did not have the necessary blanks, and, at the request of respondents, libelant took the schooner, with her crew, to San Pedro, and there, at the request of one Olivas, who wa'S representing respondents, David W. Dean was made master. At San Pedro, and before Dean was made master, the libelant ran the schooner .aground, and it is urged for the respondents that she was thereby badly damaged. I do not think the evidmlce so shows. From San Pedro the vessel sailed to the neighboring islands, under tpe command of Capt. Dean,and worked up the coast l encountering weather of such severity that but little hunting could be done until after the 11th of May; after which time the weather improved, and the hunting became good. June 12th'the schooner returned to Santa Barbara because ofa want of provisions and ammunition, not because she was in a dangerous condition, as is now contended by the respondents. She lay there until June 19th. The schooner Queen of the Bay, Capt. Chase commanding, was also at Santa Barbara at this time, and with her master the respondents were negotiating, with the view to securing that schooner for their hunting expedition. On the 19th of June respondent Rogers told Capt. Dean that the Ethelwas leaking so badly that he wanted him to take her back to libelant at San Diego. Nevertheless he first sent him to the island of Miguel with some passengers, consisting of men, women, and children. It cannot be believed that, if respondents really considered the schooner unseaworthy, as it is now contended in their behalf they did, that they would have sent her on a trip with men, women, and , children, some of whom, at least, were their friends, as passengers. The schooner returned to Santa Barbara from that trip, and on the 26th of July respondents dispatched her, in charge of Capt. Dean, to San Diego, to be delivered to Ijbelant because of her alleged dangerous condition. She arrived there July 20th, where she remained in charge of Capt. Dean until August 20th, at which tilne she returned to Santa Barbara; and on August 26th was sent by respondents on another hunting trip, under command of Capt. Olivas. The libelant refused to receive the schooner . when tendered by Capt. Dean, claiming that she was staunch and, tight. While she lay at San Diego, to-wit, August 9th, Capt. Dillingham, agflnt
BUNT V. METCALF.
and surveyor of the underwriters of San Francisco, made a thorough survey of her, and she was also painted by Dean, and '1 little place about eight inches square under her bow, where she bad been pinched by the anchor, was repaired by libelant at Capt. Dean's request. The testimony of the surveyor is to the effect that be found the vessel well built and sound; that her sails and running gear were in good order, her outside planking well corked and painted, and that she had no appearance of having leaked or strained; that the vessel showed good usage, and appeared to be as good as any vessel of her class. The testimony of the witness Chase, master of the schooner Queen of the Bay, also tends strongly to negative tbe claim that the Ethel was in a leaky and dangerous condition. While she was at Santa Barbara, from July 12th to July 19th, the respondent Rogers having told him that the vessel was leaking so badly that he could not do anything with her, Chase went on board to see if that was so. The testimony of the witness is to the effect that he did not find the Ethel leaking, and that there were no indications of her having leaked; that he bas sailed in her in heavy weather, and considers her" as solid a little vessel as there is on the coast." There is also evidence of the schooner in question having made voyages, without leaking, under trying circumstances, immediately before the making of the charter-party, and shortly after its expiration,-in one instance, at least, with a cargo of gold ore nearly double the ordinary carrying capacity of the vessel, and that, too, during rough weather. Moreover, the condition of the pump put in evidence is very strong evidence tending to negative the testimony on the part of the respondents in relation to the amount of pumping done on the vessel. Although the evidence is in many respects very conflicting, I am satisfied, from a careful examination of the whole of it, that the claim that the Ethel was not seaworthy is not well founded. The charter-party was for the term of six months, at the monthly rent of $100,,$300 in advance, balance monthly in advance. It also contained this clause: "Vessel, if kept over the charter time, the same rate as the charter, with the privilege of six months over the charter if wanted." As to the proper construction to be put upon this clause, the parties are not agreed. Such instruments should have a liberal construction, in furtherance of the intention of the parties. Raymond v. Tyson, 17 How. 53. I think it clear, from the language used, that the intention of the parties was that respondents should have the right to keep the vessel for such time as they wished over the six months, paying therefor at the rate of $100 per month,not exceeding six months additional in all. In November the respondents sent the schooner back to San Diego in charge of Capt. Olivas, to be returned to the libelant; and on the 4th of that month there was, I think, a Bufficient tender of the vessel to the libelant. Under my construction of the charter-party, the respondents then had the right to return the vessel, which was to be dOlle at the home port or at Santa Barbara, at the option of the owner. It was tendered to the owner at the home port. If he wanted it returned at Santa Barbara, he should have exercised his optIon. Not having
FEDERAL REPORTER, vol. 47.
done so, it was his duty to have accepted the vessel. For no time after November 4, 1889, do I think respondents properly chargeable for the use of the vessel. But they should be held liable, at the stipulated rate, for its use from the execution of the charter-party, to and including November 4th; that is to say, 6 months and 28 days, less the advance payment of $300, made by respondents, April 8th. The libelant is also entitled, I think, to $9 for the hatchet aml money advanced by him to respondents' crew at San Pedro; to $32 for board and provisions furnished the captain and crew of the Ethel while at San Diego in July and August, 1889; to $58.70 for the anchors and chain not returned; to $5 for damage to the vessel; to $21 for damage to the sails; and to $10 for damage to the cross-treC's. For cleaning the bottom of the vessel, and for painting her, I do not think respondents properly chargeable. I should be disposed to allow the item of $105, claimed by respondents for rope for the vessel paid for by them at the request of libelant, but for the fact that the evidence shows it was not returned. The other Items claimed by respondents must be denied, under the views already expressed. There will be a decree for the libelant in accordance with this opinion, with legal interest at 7 per cent. per annum from the dates the respective payments were due, and for costs.
JENKINS v. A CARGO OF 9,250 BAGS OF SUGAR et al.
(Dist?'!ct Court, E. D. Ne?v York. July 7,1891.)
CARRIERS OF CARGO-DELIVERY-RECEIPT OF CARGO BY CONSIGNEE.
On a vessel's arrival at her port of discharge, no owner appeared to receive the cargo, and it was placed in store by the master, subject to the ship's lien for freight. Subsequently, on suit begun against the cal"go for the freight, the owner appeared and took the cargo, giVing security for the freight. Held, that the cargo owner could not thereafter contend that no delivery had been made.
SAME-DISCHARGE INTO STORE-RIGHT DELIVEHY.
A vessel with a cargo of sugar arrived at her destination with water in her hold, due to perils of the sea, and which was melting the cargo. No consignee appeared with authority to claim the cargo. On surveys by the port-warden and the surveyor of the Marine Underwriters, an immediate discharge was recommended. The master in good faith placed the cargo in store. Held, that it was a reasonable and legal discharge, and constituted a rigtlt delivery. entitling the ship to freight. Under such cirmpnstances, the vessel is entitled to recover of the 'cargo the expenses of tbe survey.
SAME-CONSIGNEE'S AUTHOHITy-RIGHT OF SHIP TO KNOW.
When by bills of lading cargo is consigned to order, it is the right of the ship to be informed. by an inspection of the indorsements on the bills of lading that have been signed and delivered by the master, as to who is entitled ,to receive the cargo.
Suit to recover freight.
Reported by E.,G.Benedict, Esq., of the New York bar.