ents' testimony acquits him of fault. There is no contention, however, but that when the master made the contract, and stipulated to keep the boat in thorough repair, he was acting on behalf of the owner, and within the scope of his authority, and also that he was so acting when, the boat been once rejected as leaky, he took her to be repaired, and subsequently returned her, saying she was all right, and ready for load· ing. The owners of barp;es to be used for grain have been held by the admiralty courts very strictly to the duty of keeping their boats tight. strong, and in every way fit for the purpose for which they are used; that is to say, so that the water shall not reach the grain. The supreme court has said .that, if they are incapable of this, they are not seaworthy, and that there is no othei' test. The Norfhern Belle, 9 Wall. 526;· 'Kellcgg v. Packet Co., 3 Biss. 496·. In this case the whole purpose and meaning of the stipula:tion that the owner should keep the boat in ough repair was nothing more nor less than that, while subjected toonly the ordinary risks of her employment, she should not so leak as to injure her cargo. r pronounce in favor of the libelant; but, as the testimony with regard to the loss on the wet grain was not entirely satisfactory, unless the parties can agree on the amount, 1 will send the case to a master .to compute the damages. I think it should be shown, with more accuracy than was done at the hearing, how much the grain which was wet was depreciated in value.
FRAME 11. THE ELLA.
(Dtstrlct Court, E. D. Virginw. March 29, 1880.)
MARITIMB CONTRAOT-WJ:IA'l' CoNS'lITUTES-LAUNCmNG STRANDBD VESBEL.
A contract for launching a vessel, where the vessel has been carried a quarter of a mile up the beach by a storm, is a maritime contract, for which thlt vessel is liable
CONTRAC'Il8-DELAY IN PERFORMING-WON UNRBASONABLE.
the maohlnery, dredges, etc. .
was an e:X;Mrleneed wrecker, or that he tbatmigh,. be found necessary.
·· UOl'lTRAOT.,O:B SALVAGE-LIBEL IN REM.
. .An espress contraot for salvage servloes; does not bar a libel in rem. tor oompensation. ," . :.
Libel by John against the schooner Ella for under a contract to launch her, after being beached by Decree for libelant. W. G,.EllWU, for libelant. for respondent. H UGRES, J. By the extraordinary storm ofAugust,1879, the schooner Me., was carried 1,200 to 1,300 feGt beyond the orElla, dinarywater'sedge, and beachoo high and dry on the shore of the Elizabeth river, near Norfolk, far beyond the reach of the tides. The owner's agent rejected the offers of the Bakers, of this city, experienced wreckers, to launch the veilSel for $1,200; nnd contracted at $1,000 with a libelant in this suit, who had had some exlandsman, John Frame, perience in moving houses. There was a written contract, at the price named, dated ,on the 1st of September, 1879, in which the libelant stip"llated to "launch the schooner," and "to furnish all material, labor, and implements necessary to launch" her, and that the work of "launching" should be commenced as soon as practicable, and without unnecessary delay. The agent contracted to pay for this service $1,000 as soon as the vessel should be placed. in deep water; and that he should not be liable to pay any portion of the sum until the schooner was placed in deep water. No time was agreed upon executing the work; the libelant stating in evidence that he was unwilling to bind himself to any limited, time. The work was,promptly begun about the 3d September, and the vessel was moved in a 'few weeks about the distance of twice her own length; she being a schooner of 160 tonI!. Then the pl!!on of moving her over the ground seems to have been abandoned. It was determined, instead,to dredge a canal from the channel up to the place where the vesselthen lay. ,It'or this purpose the dredge of one H. E. Culpepper was engaged, which went to work at 'S50 a day, and worked on at intervals until she had earned $351; A good deal of delay seems to have been caused by the necessity, ,of waiting for this dredge. On the 5th of December the dredge waBRgain hired; Frame and Condon, Ella, uniting,with CUlpepper in a written contract, by the which they pledged the lieu of the vessel for the $351 already earned, and for the wages to be eained. Under this arrangement the dredge and'by the 22dof December had run the canal up again to the stern of the schooner lay, and then knocked off' work, though it seems that a canal was dredged further on along one. side of thescboonera,t some time or other. Attempts were made to slide the vessel sideways into this lateral canal, but they did not succeed. Then it Was attempted to drag the vessel astern into the main canal, but the hawser used' by Frame broke more or less often, and that
effort failed. Nothing seems to ,have been done by'll'rame after the 22d of December up to the 4th of January, 1880, which was probably due to the holidays. Gnthe last;.named datel Condon told Frame that, if he did not complete bis job in a week from that time, hew-ould terminate the contract. On the 11th January Condon gave Frame a written notice that he had employed other persons to ·finish the work. Condon, with his new employes, the Bakers, went to work; and by cutting a canal on the other side of the vessel from that on which Frame had cut one, and by the use of chains and other appliances, succeeded in launching the vessel on the 9th of March; thatia, after the lapse of about two months from the time when Condon took the work out of Frame's hands. Condon paid the Bakers for the work done by them $600. A libel was filed by Culpepper against the schooner for the dredging done by his dredge, in which he claimed $750, inclUding the am(Junt of $351 due for the first service, which has been named. This claim and cost of suit was: settled out of court by Condon, and the libel dismissed; the court costs in which being about $50. Frame contends that $200 of this $750 was not justly due, and that Condon should· not have allowed it. Frame now brings this libel, vouching his contract of September 1st, and claiming the $1,000 named therein, or else such jUl:lt compensation for his services as may of right be adjudged to him. A note has been filed by counsel for Condon since the argument at bar, contending that, as this is a claim for salvage, the libelant barred his right to sue in rem by entering into a special express contract for services. There is nothing in the point made by the master's counsel. In some old cases it has been held that a special or expresR contract with the owners, fixing the compensation to be paid for salvage, was a bar to a . libel in rem. But they have been overruled by more modern cases; and, except as to contracts for fixed sums payable "at all events," such is no longer the law. The point was settled by the United States supreme court in the case of The Camanche, 8 Wall. 448, and the ruling by several cases in the United States courts. there has been and Admiralty is not, and does not profess to be, an Desty's authority itself; It is an index of all decisions in admiralty, some Qf which are authority, and 'Others of which are overruled cases. The contract in the case before me, as I have said, waB in terms a contract for launching. It was so in fact. The repairer of a ship still on the docks may libel her, either while there, or after she has been launched. Benedict says that towing or "otherwise moving" a vessel of commerce is a maritime contract, within the cognizance of admiralty. A leading case on this subject, and an early American case, is Read v. The Hull, of a New Brig, 1 Story, 244. The present case is indisputably within the admiralty jurisdiction. I come, therefore, to consider it on the merits. The claim is resisted by the master of the schooner, Condon, on two grounds: (1) On the ground that the contract was forfeited by Frame by his failure to perform the job in a reasonable time; and (2) on the ground that Frame was without skill in the business he undertook, and, furthermore, was
119t prpyiped with the, materials $.nd implements necessary to the eX6 ' t cutioIlof.his contract to furnish them. Condon also insists'that he lOSt of $300 a month for all the unnecessary time that was spen by Frame about the work he undertook to do. As to this last objection' .nocx05*,libel-has been ·filed setting up this claim. It is not a matter putin issue by the pleadings iothe case, and I do not think this specific«laim ill properly before the court for adjudication. But, even if it 'Vere, itwo:uld depend entirely upon the decision of the question of unreason!tb'le delay, which I am to pass upon. Returning to the moreregulargroullds of defense made by Condon, and to: that of Frame's alleged dilatoriness in completing his work: It Cllnu(ilt :be ,denied that Frame was bound to perform it in a reasonable time.. ;,The fact that no time was stipulated for, in a contract concerning the launching ora vessel of commerce, into which time always enters as a most Jmportantelement of consideration, seems to indicate that neither party deemed it practicable to fix a time, and that the period to be allowed was left open to the determination of circumstances. I should h/tve been disposed, nevertheless, to think the, delay of four months quite unreasonable and fatal, but for what occurred after Condon discharged .Frame, and undertook the job himSelf. Frame had effected the rtlttjovalof the schooner over the ground some two lengths, 'and thereby shortened the distance necessary to be dredged, so as t06ave, according ,to. Capt. Baker's testimony, six or seven days' work of the dredge. He had also dredged a canal from the water channel some thousand feet to the stern of the schooner, and extended it along one side He had thus accomplished most of the work neelaunching of the vessel at the time he was discharged. Not much, iiany, fnore than 100 ,additional feet of dredging remained tl) be dOJ1,e when Condon took ohaJ:ge., Yet two months elapsed after the job. If two months Condon set to work before wereuot'J!nunreasonabletime within which Condon did the remaining WQrk nec(lSsary, it does not seeUl to me that four months were unreason.. able for ,the much more work that;Frame had directed. The 'Work.wusofa character to. be attended I do 'not see that the delays which attended whatw8sdone in the four months are beyond proportion:,with. tpose which attended what was done in the two months when Condon had direction, under circumstances creating the strongest incentives:to exertion and expedition. .There is the further consideration that COD,don was in attendll.nce at the schooner during the entire period.<:>f Frllme's control; and does not, from the evidence, seem to have entered personal protest against the delay in any form, or even made complaint to Frame himself, until the 4th of January. As late as the 5th December he sanctioned a proceeding of FraIbe by joining in the contract with Culpepper for the second use of the dredge, which recognizeli the original contract, and conthlUed it in operation as long a$ the dredge should be employed, which W/l<S until the22d December. This acquiescence and'pl,trticipation by Condon in what Frame was doing certainly affords lj, strong implication that there was nO delay before
that time to jqstify the forfeiture of his contract. Considered in connection with Condon's subsequent failure for two months to get the vessel off; when comparatively little remained to be done, I do not think there was such delay on the part of Fmme as authorized a summary and arbitrary abrogation of the contract upon a week's notice. Solemn contracts cannot be set aside by a single party to them upon grounds so inconclusive. If Frame had himself thrown up his contract, he would havebeen,'Qound by his contract, and could not have recovered any remuneration'for his work and labor. But in this caSe it, is Condon who terminates it, ,and it docanot accord with the spirit of a court of admi,which ilJ averse to, the exaction of forfeitures and penalties, to aItowhim, by his own arbitrary act, to fix a forfeiture upon the other contracting party· The other ground of defense is that Frame had no skill as a wrecker, and· did not own the materials and implements necessary to the· performance of his undertaking, which he contracted to furnish. There is no proof, and it is not a faGt, that Frame held himself out as a professional wrecker. The evidence indicates, rather, that Condon knew he was a landsman, and that Condon employed him by reason of his having had some experience as a mover of houses on land. It is quite true that a man wh.o undertakes work for a price impliedly stipulates that he has the requisite skill for its successful performance. But this rule is rarely, if ever, enforced, except in respect to professional skill, and that of experts. mechanicaltr",des and crafts. It does not apply to mere laborers, or to employmentsiIlon-professional, and not within the mechanical trades. The launching of a vessel stranded by a phenomenal storm a quarter of a mile from the water's edge cannot be held to fall within the experience of any partiCUlar profession or craft, and is as exceptional a work as can well be imagined. I do not think that Frame can be held to have contracted impliedly with Condon that he had any experience or special skill in 'the art and mystery of n;Joving ships over the in. the contract, that FraQle should furnish the land. The materials and implements necessary to thework undertaken, bound him to defray the expense of procuring and using those materials andimpleholding out ofihe idea that he actually owned and possessed them. 'dontracts oUhe sort do not imply the o\YDership ofsuch appliances..'. Men of enterprise often contract to do work reqUiring the u'se of herculean machinery, ,imlnensely costly, which they do not own.. They depend for procuring such materials and implements which they enter vpry often. on naught but the credit of the into. ,If inever.y instance they were held to own or to possess sufficient personal credit for procuring them, then men of enterprise alone, and of no capital, would be I;lnable to enter into any oithe great operation.s ofmoclerntimes, and the'most important of these undertakings could not be prosecuted. The hiring by Frame and Condon of the·secclUd.time ,was UP()h the credit of Frame's.9rigitiaF'contra'ct; which 'i'tself 'was a lien upon the schooner, and Condon's joining in it he the contract to be .then inJ9rce
-and binding upon the vessel; and:would: <lontinuesountiJ: tbe"dredgthe 22d ing :tOr which it provided <sho'Ukl be performed,i. .Dedemberj for otherwise he would not have signed. the 'contract. I ,cann,otagreethat Frame'scontrttct to furnish all the materials Itnd implements necessary to the launching of the scn61:>ner itnplif\d that' he owned, 8Jld, could continuaBy:cottlmand, a dredge, or even that he would have one. ready for use on every particular day on wI!lichit could be use<;!.,: It:isclear f.rom the tenor of theoolltraot that each party contemplated" that the schooner wast/:)· be got off by "launching." Dredging waB'llot in the minds of either party. Nor ddes to have come into tbeirJl[linds until after the lapse of several: weeks, in, futile attempts 'at On the whole case, I think Frame is entitled to a just compensation for whatever eJectual work he dlid for the schooner; He would be entitled tpcompensation for the dre<3ging ,done by Culpepper; but, as Condon nas paid that debt, it cannot now be awarded to him. He is also entitled to a proper compensatidn for moving the vessel from the spot where he found her to that up to which the canal was dredged. I could not allow his actual expenditures in this part 6f his work. He ,may have spent double what it ought to have cost.' 1 think the best way of getting at what this service Was worth will be to allow him what the dredging of the canal up to where the vessel originally lay would have cost. Capt. Baker says that that distance would have required six or seven days' dredging. This at $50 a day, or $300, is what I will cillow. .A decree may be taken for $300, and $61.04 costB*
MULLER fl. SPRECKELS.' (DIstrict Court. JD. D. rfl?lnB1lwania. October
Colft'BAOT BY MASTER 01' VESSEL-VALIDITY.
An agreement by a charterer to give the master of a vessel :a drawback In oonsideratlon of his permitting the stevedoring to be done by him at a higher price than it could have been done by other parties is void.
CBARTlIlR-PARTY-RJGHTS, OJ' CHARTERER TO UNLOAD-CoJIPBNSATJOX·
.A .shipcpntracted for 85 cents a ton for stevedoring a cargo of sug-ar, which was a fair compensation; the charterer ,himself assumed the stevedoriug, charging 45 cents a ton. Held, as the right to do the stElvedoring was the ship's, and was not Jiven to charterers by a charter-party providIng that the "ship to be addressed to * * charterers or their agent at port of discharge for custom-house business on the usual terms," the charterer lS not entitled to more than the service woDld have cost the ship. .
Where.,. vessel, to make the delivery required by the terms of the charter, Is enter a dock, and for this purpQse enters the dock of the charterer, she is liable to him for the ordinary charges for such accommodation. A charge made for the use of a dock, equal ito the usual wharfage fee,where a vessel enters it, and excludes by her presence. others from the, use of the wharf, alJ:, ' , by Mark Wilks COllet, Esq., of the Philadelphia bar.
WHA.RFAGE-LIABILITY OF VESSEL,