FEDERAL REPORTER, vol. 47.
ready to discharge cargo. "Their duration is fixed by the use of quick dispatch." This is the written contract. In Thacher v. Co., 2 Low. 361, the words of the charter-party were, "and quick dispatch discharging." Following Mr. Justice CLIFFORD in the case of Davis v. Wallace, 3 Cliff. 123, the court held that an agreement for quick dispatch overrides any customary mode of discharging vessels by which they take their turn at the wharf. This case also held that when a charter-party named a wharf for discharge it was a warranty that there would be a berth there. Bjorkquist v. Certain Steel Rail Crop Ends, 3 Fed. Hep. 717, is a case very much like that under discussion. It is a case in this cir<mit, and it decides that under a charter providing for quick dispatch in discharging the charterer was liable for demurrage when the vessel, from the crowded condition of the port, was delayed in procuring a berth. These cases commend themselves to the judgment of the court. If the delay had been occasioned by circumstances beyond the control of respondents, these would have been taken into the account. 'l'hey would not have been held to the precise moment of the report. But the schooner was kept out of her berth two days and more, because it was in use by respondents, presumably for their advantage. I am of the opinion that the custom of the port, assuming that this be properly found, does not (JJ)ter into this contract. Omit the part of a day, and prepare a decree giving libelant two days' demurrage, with costs.
THE ROBERT AND MINNIE.
THE ROBERT AND MINNIE.
S. D. California. JUly 6, 1891 '
NEUTRALITY LAWS- VIOI,.ATION-FoHFElTURE.
Rev. St. U. S. provides for the forfeiture of every vessel WhlC.l, within the limits of the United States, is. fitted out and armed, or attempted to be so, to be employed in the service of any Joreign prince, state, or people to commit hostilities agaInst the subjects, cItizens, or property of a prince, state, or people with which the United States are at peace. Held, that under this section no forfeiture can be claimed of a vessel which is only employed to transport arms and munitions of war to a vessel fitting out to Dursue'the forbidden warlike enterprises.
In Admiralty. George J. Denis, Stephen lIf. White, and Page &: Eells, for claimants. Willoughby Cole, U. S. Atty., and Alexander Campbell, Sp. Asst. U. S. Atty. ROSSI J. The question in this case may be disposed of in a few words. The proceeding is under section 5283 of the Revised Statutes, for the condemnation ofthe schooner Robert and Minnie, her tackle, apparel, and furniture. The section referred to provides for the forfeiture of every vessel, her apparel, and furniture, that, within the lim-
£HE ROBERT AND MINNIE.
its of the United States, is fitted ant and armed, or attempted to befitted out and armed, with intent that such shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any c'.llony, district, or people, with whom the United States are at peace. It is plain that, in order to entitle the government to a decree of forfeiture as against the schooner Robert and Minnie, she must have been fitted out and armed, or attempted to be fitted out and armed, with the intent stated, to cruise or commit hostilities against the subjects, citizens, or property of a foreign prince or state, or of a colony, district, or people, with whom the United States are at peace. The specific acts charged against the schooner in question in the libel of information are that, on the 21st of April last, within the limits of the United States, to-\vit, at the port of San Francisco, one George A. Burt, and other persons to the district attorney unknown, placed and caused to be placed upon said schooner large quantities of al',ns and munitions of war, viz., 10,000 rifles, 10,000 bayonets, 10,000 muskets, and 500,000 ro .... nds of ammunition therefor, and transported the same on said schooner to an anchorage within this judicial district, near the island of San Clemente, and there, on the 9th day of May, delivered said arms and munitions of war to and on board of a certain steam-ship called the" !tata," which was then and there a war-ship in the possession and under the control of certain citizens of the republic of Chili, known as the" Congressional Party," and who were then and there, in said republic, organized and banded together in great numbers in armed rebellion and attempted revolution, and carrying on war against the republic of Chili, and the government thereof, with which the United States then were and now are at peace; said arms and munitions of war to be used by said insurgents, and by said ship, Hata, in carrying on war against the ci izens and property of the republic of Chili. While these facts might afford good ground for the seizure and forfeiture of the Hata, they constitute no ground for the seizure or forfeiture of the schooner Robert and Minnie. U. S. v. Carondelet, 37 Fed. Rep. 799. No fact is alleged tending to show any intent on the part of the schooner to cruise or commit hostilities against the republic of Chili, or the government thereof, nor, indeed, tending to show that the schooner itself ever was fitted out or armed, or attempted to be fitted out or armed, within the meaning of the statute in question. On the contrary , the specific acts alleged show that the schooner was used only for the purpose of transporting the arms and munitions of war to the war-ship Hata; in other words, to fit out and arm the Hata to cruise and commit the prohibited hostilities. While such acts, as already said, might constitute good ground for the seizure and forieiture ofthe !tata, they wholly fail to bring the schooner within the provisions of sectiqn5283 of th3 Revised Statutes; and that is the only questjon invqlved in the present case. Exceptions sustained. The government .Dot deljiring to amend, the libel is dismissed.
THE BELT,EVUE. DIXON v. THE BEU.EVUE.
(District Court, E. D. South.
. In a libel against a vessel for supplies and advances made in a foreign port, evidence that the supplies were given andthe money advanced in good faith, on the order of the master, is sufficient prima facie proofttlat such supplies and advances were necessary. Following The Gj'apeshot, 9 Wall. 141.
OF VESSEL FOR SUPPLIEs-EVIDENCE.
In Admiralty. Libel in rem for supplies and advances. Trenholm & Rhett, for libelant. G. W. McCormack and C. W. Dingle, for respondent. SmoNTON, J. The Bellevue belongs to the port of Charleston. She traded between Savannah and Beaufort, S, C., carrying passengers and freight. Libelant is a merchant of Savannah, and at the request of the master furnished the steamer with coal, and on two occasions with cash advances. The account filed with the libel shows on the debit side the items for coal and the two of cash advanced. On the credit side are seven iteins cash. The balance due on the account is $276.30. Of the two items cash advanced, the first was paid by a draft on the agent of the steamer at Beaufort, drawn by the master. The last has not been paid. There is nothing in the testimony showing how the cash credits were paid, whether in money, by the master, or by draft, except in one instance; that is, the credit of $105. On this point it appears that the master applied to the libelant asking that he cash a draft of $105 on his agent at Beaufort. Out of this he proposed to pay libelant $50 on account, and to use the $55 in paying billR of the steamer.. This draft, as we see, was pa:id. .Claimant disputes the other item of cash advanced, $77.15, of date 21st April, 1891. For this the master had drawn on the same agent in favor of libelant, and the draft was dishonored. The position taken by the claimant is this: In order to charge the vessel with supplies furnished or cash advanced to the master in a foreign port, the onus is on the creditor of showing that the supplies or advances were necessary. In the present case, all the libelant has shown is that the master stated "that the boat owed several little bills that he wanted to pay." The law on this point is stated by CHASE, C. J., in The Grapeshot, 9 Wall. 141, confirmed in The Lulu, 10 Wall. 199, and cases cited in note. Theseare thus laid down: (1) Liens for repairs supplies, whether implied or express, can be enforced in admiralty only upon proof made by the creditor that the repairs or supplies were necessary, or btllieved, upon due inquiry and credible representation, to be necessary. (2) Where proof is made of necessity for the repairs or supplies, or for funds raised to pay for them by the master, and of credit given to the ship, a presumption will arise, conclusive in the absence of evidence to the contrary, of necessity for credit. (3) Necessity for repairs and supplies iEll