EARNSHA.W V. M'HOSE.
mote the attainment of the object with which it was enacted, carefully scrutinizing each case, including and excluding in and from its operation as it is manifest congress must have intended. Let, therefore, the libel be dismissed.
EARNSHAW 'D. McH08E
et al. l
(Circuit Court, E. D. Pennsylvania. November 10, 1891.)
A QQntract provided that the plaintiff should sell, and the defendants buy, fron ore l}.t. named prices, stipulated that these prices "were based on an ocean freight rate of 12s. a ton, '''all freight ·over that sum to be added to, and all freight less,tllantbat sum to be deducted from, the invoiQe .priee.. Plaintl:ffollartered a at tllat rate, agreeing with, it in the cbarter-party for £15 dispatch molley atld'£$O demurrage for·eacb day to be saved from or exceeding the numbarof days allowed for loading or unloading. UesJ?atch moneywM deducted from the amount paid for freight, which dfijfendants c).alme4 should be deducted from tbe invoice Held, in the absence of any unusual expenditure by plaintiff to secure despatch, the despatch m01;le'y was merely a dedll.lltion from tbe be,loQged.todefendan ts. ,Coinmissiou& paid by stevedores and charterers for securing tbem tlle ship's unloading was not such a deduction from the freight as belonged to defendants under the contract. . ,. Where a set-off bas been given in evidence, though inadmissible under tbe, plead, lngs at trial, it is too late, on motion W reduce verdict, to raise the point for the first time, ,.., ,
a.PLEADING AND,PROO_VARIANCE-OBJEOTlONS WAIVED.
, A88Umpsit by Alfred Earnshaw against Isaac McHose & Sons ,torecover on $56,000 as the agreed price of iron ore Bold and delivered by the plaintiff to defendants in accordance witheontract, which provided, inter alia: "Price to be at the rate of seven dollars and seventy-five cents ($7.75) per ton of, 2,240 pounds for the mined ore, commonly known as 'MarbeUa Lump,," and 'seven dollar's and thirty-five cents ($7.35) for the sand ore, kl)own as 'Marbella Sand,' when loaded, in cars on tpis side. F1'eight Rate. The above prices are based an ocean rate of twelve shillings per ton. All freigpt over twelve shillings to be added to the invoice as part of the price of the ore,and all freight under twelve shillings to be deducted from the invoice," i' '. ' '
, ,To fulfill· this contract. Ea,rnshaw'cha,rtereda steam-shi p under ltphar-
ter-party which provided, inter alia, after naming 40 days to be allowed for loading and , .. Despatch woneJ at the rate, of fifteen pQuuds per day of 24 hours, for any time &aved in IQading discharging, payable by the ship to shipper at loadingport, at dischl/orgillg as charterer ml\Y .elect.
by MllorkWilks Collet, Esq., of the Philadelphia bJ.
,;' ' j
over and above the said lay-days at the rate of tlJirty pounds per day of 24 hours, except -in lease of ant'unavoidable accidents'which may' 'hinder the loading or discharging.;" "I;, I , McHose It Sons of 'despatch money paid the shipper or charterer was to be deducted from the alDount payable by them to Earnshaw, and also that a deduction should be made of all "stevedores' commissions;" lihd the court having refused the plaintiff's point that "the defendants are not entitled to any deduction on account of despatch money or commissions received f()r stevedores," it was agreed that the jury find a special verdict stating how much, if any, they allow at a verdict, on account of the rebates to or or allowances oil freight for despatch money; and that upon a motion for a new trial, if the court shall be of opinion that defendants, as matter of law. are not entitled to such allowance Or credit, the verdict may be amended or modified by the court in accqrdan(le with such opinion, saving toexqept to 'such opinion of the court with thE: same effect as if it had originally' in the charge, and the jury had found ,the verdict as finally amended or modified by the court. The court may modify the verd,ict as to amount of allowance for above reasons, if it shall be' ascertained that, the figures of the defendants are incorrect. Under this agreement the jury rendered a speeialverdictallowing defendants credit for dispatch motll:lY, $13,926.74. In this amount was included despatch money for cargoes under simjlar contracts. There had been no plea of, set-off. Motions to increase and to diminish the vercHct. RichardC. McMurtrie and' R. P. White,for plaintiff. John G. Johnson, (Fru'I1k P. Richard, with him,) for defendants.
<BUTI,ER, The plaintiff's rule is baRed on an alleged error in answering his first point. To justify interference,' the error should be plain. If it i8oot, thequslltion should'beleft to the court of appeals. Whether the credit claimed on account of freight should be allowed (,lepends On the construction ()f the freight clause in the contract in suit. rothe,absence of usage---of which there is no evidence-governinK the construction, the' 'court believed; on the trial,that the freight contemplated waHhensuali'atepaid at'the dates Of shIpment. About there 'rQOID for serions dQUbt ,What aoubt, eXists, grows out of the method :of'determiniqg and stating the charter rates. A sum is specified, based on the IE'ngtb of time required by the sllPposinga given degr!3e of,despatch to be used in loading and unloading, with provision for deduetionor allowance if thedespatch is gteider, a'rJd increase if it is less. Thus three rates are, substantially, named, calc.uIated on the, supposed, number of Thl:l b.e. lillved the sillaller sum to be, the rate the contract, In View ofthe time'occupied;,'that it was 'the rate 'for the service rendered; 'Of dayshdcl'been required 'the largetBum that if the would have governed---:demurrage belonging to the category of freight; .,.,0,._ '.'.,1.
; ,I :.,'I .',,_'. ,", ....
THE IRA. B. ELLEMS.
that, if unusual exertion or expenditure· had been made to obtain the earlier despatch, this should be compensated.' ,Theevidence showed it had not, the despatch being no quicker than is common in such cases. This constl.'uctioIT'seemed to be required, not ()nly by the terms of the contract; but by ,itsspilit. It se"emed reasonable to believe that the partieS dealt on the basis of the ore's costtQthe plaintiff and the demand for it; that his profits were thus seoured, and that, as the CO&t of transportation was then unknown, this was provided fOf ·by the clause in question, which had no other object. It'seemed improbable that the parties contemplated the plaintift?sreceipt of a large additional sum, by ehargiQg the defendants so much more on account of freight than was expend-ed. Such was the court's impression at the trial. The credit claimed on account of "stevedores' commissions" paid the plaintiff, did not seem to fall within the terms of the cotitract, nor so directly within consideration of what was jte,spirit as to JUBtify this olaim.'·' After urged in suppOrt of the rules, it ilfsufficient to say that we are not convinced. that. the instruction was erroneous. The rules are therefore dis·missed. ,,The· plaintiff has also the point that so much of the claim on aecount of freigbtas relates to the Campinil and Alvito ores delivered under similar contracts is inadmissible under the pleadings. The point, however, comes too late.. ' !fit had boon made at the trial a plea of setoff might have been entered. The evidence was admitted without obwe think, if jection on this ground. :The plea might still be necessary to sustain the verdict.
Under a charter-party Which provides that theoharterer shall furnish of "to be delivered and held at eharterer's risk and expense, the cha'l1erer is not entitled to damages for the loss of logs delivered along-s1de, cat:ried away by reason of negligent mooring. .
'. . ..
AD.MIRALT;r-EVIDENOlji...,Ex PARTE DOCUMENTS.
Theoftlcial documents of the officeril of a foreign nation having jurisdiction of a port of lading, containing what purports to be a protest by a charterer against the action of the vessel, and depositions in-support of the facts alleged in such protest, being ez parte, are not admissible to establish a controverted fact. The refusal of a master to deliver a cargo until seourity is furnished for the freight gives no right of action to the charterer, as the oargo is subject toa lien for freight.
SHIPPING-LIEN FOR FREIGHT.
In Admiralty. On appeal from the district court. Libel by the Otis Manufacturing Company against the schooner Ira B. Enems for damages for breach of a charter-party. Decree for defendant.