NORDAAS V. HUBBARD.
et al. l
(Dtstrl.ct Court, S. lJ. Aktbama.
December 12, 1891.)
SHIPPING-PLACE OF LoADING-CHARTER-PARTY.
A charter-party providing that the vessel sha.llioad at Mobile a cargo not exceeding what she can reasonably carry does not compel the shipper, after he has IQaded her to the draught of the river at the city, to furnish her more at the deeper anchorage in the bay of Mobile, 80 miles from the city. .
SAME-DtrTIES OF MASTER.
It is the peculiar business and duty of the ship-master to know what ports hi. vessel can enter and what anchorages are safe.
If a vessel, in order .to' earn greater freight, gets the shipper to furnish at a deeper anchorage cargo in addition to what he had furnished at the agreed place Of loading, the cost of lightering must be borne by the vessel. Delivery to the lighter is delivery to the vessel.
BAME-COST OF LIGHTERAGE.
,"CUSTOM-EvIDENOE OF UUGE.
While evidence of usage is inadmissible to contradict, it is admissible to explain, a contract where otherwise the intention of the parties cannot be ascertained.
SAME-ApPLICATION TO CHARTER.
When a custom is certain and general, although not so notorious or so acquiesced in as to have the force of law, it will be carried out as to a point where the contraCt is silent, when the charter-party provides that the custom of the port is to be observed in all cases not especially expressed.
In Admiralty. Libel inper80nam by owner of vessel for extra expenses of finishing IQading his vessel in the lower bay of Mobile, 30 miles from the city of Mobile: The facts are stated in the opinion. G. L. &- H. T. sm'ith, for libelant. PiUam, Torrey &- Hanaw, for respondents.
TOULMIN, J. 'l'hecharter-party out of which this suit has arisen, and upon the construction of which the rights of the parties thereto are
be provides: ",That the vessel'chartered shall proceed to Mobile. and there load from the at such anchorage or dock as they may direct, (Where the vessel can be afloat, ". '" *) a full and complete cargo, to consist of sawn pitch .pine deals under and. upon deck, not exceeding what she can reasonably stow or carry, ... * ... which cargo the charterers agree to ship, and, being so loaded, shall proceed to Rio de Janeiro, ... III III at the rate of &15 per one superficial feet," etc.
It seems to me clear from the terillS of the contract that it was the intention of the parties that the vessel was to load at Mobile, and not partly at Mobile and partly in the lower bay, as ·she did do, owing to her heavy draught, and especially in view of the principle that it is the -peculiar business and duty of the ship-master to know what ports his vessel can enter and what anchorages are safe. The GazeUe, 11 Fed. Rep. 431. Under the terms of the charter-party, the ship was not bound to load a part of her cargo at Mobile, and then take on board, outside the bar of Mobile, a part of the cargo she could not safely load at Mobile and -cross the bar with. She could have loaded such a cargo as she could
by Peter J. Hamilton, Esq., of the Mobile bar.
cross the bar with, and no more, without being compelled to complete her loading outside the bar. She had the option to load a part at Mobile, and to complete the cargo outside the bar; but by the terms of the contract she wMnot bound to do so. Scrut. Char. Part. 72, 75. If, in order to earn more freight, she desired to complete or take on more andrElquired tbe.charterers to furnish her such cargo additional eargo, I think thevl'ssel was chargeable with the difference in the expense of delivery at 1tIobile and in the bay outside the har. A delivery to the lighter at Mobile was a delivery to the vessel. Bulkley v. Cbtton Cb., 24 How. 386. : But, if lam in error in thus construinK the contract, and it is necessary to consider any custom of the port in reference to tbeloading of vessels of likedruught with the vessel in question, in order what the of the patties :was, let us Bee what the evidence shows upon the subject. Evidence of usage is not contract, but is admissible to explain a con.. where otherwise the int/;lntion of the parties cannot be ascertained. Robinson v. 13 Wall. 363. Besides, there is a provision in the custom:: .of. the port is to be opserved in all cases where not tlSpeeiaJly expressed.·· The evidence shows that there isa custom at the port of Mobile for a vessel to load a part of her cargo at Mobile, and to. ta,k,e on board outf3ide the bar the part of the cargo she could when. she is of such heavy draught as to beunanot safely ble to cross the Dar with a full I!-nd complete cargOj and uncontradicted testimony in the ease satisfies me that the. custom in such contingency is for the vessel to pay the ligpterage to :the lower bay, in the absence of any express stipulation outhe subject in the contract. There is no under providing for such stipulation in expense. Such. case, then, not being expressly provided for by the terms ofthe contract, the custom of the port to be observed. The eVe idence on. the subject does not show that the usage has become so notoas have the, force of law, but it 'does ;l'iousor :show that custOlD, certalll and general, for the vessel to pay the lighterage,tQ ,the lower bay when there is no stipulation in the con(tract to the.contl'ary. My opiflkm. therefore, is that, under the terms of this charter-party, the vessel was chargeable with the lighterage, irrespective of any custom, and that, according to the custom of the port, she was so chargeable. In either case ithe ,libelant is not entitled to recover, and the libel must be dismissed at:his cost.
THESCHIEDAK. 1 MILLARD 'V.TlIJ!l SCHlEDAK.
Cowrt, S. D. New York. December 1',1891.)
SALVAGlli-TOWING DISABLED STEAMER.
Tbe machinery of the steam-ship Schiedam bad been disabled, so as to oompeltbe vessel toancborsome 15 miles east of Sandy Hook, and about 4 miles from the Long Island sbore. The weather was hazy.' Tbe powerful tug Evarts came up, and agreed to take her to her'dock iu Hoboken for'l,OIlO. The Evarts was tbe only tug sight at tbe time. She ,towed the steam-sbip to bel' dock as agreed, with some assietan<ie from otber tugs met on the way, some ofwhlcb bad heen sent by the agent!! of tho ship. The Scbiedam and cargCl were worth '185,000; the Evarts was worth HeLd, that the amount agreed on was reasonable, and should be awardlld. '
I. BAtIE..:-coNTBACTS FOR AGREED AMOUNTS.
, Salvage, viewed as a reward, ie not properly the subject of a contract in advance. Courts of admiralty fully examine into the circumstances of the service in the interellt of the prOp0rty saved, and award no more than a reasonable sum, and are not bound by the amount agreed on beforehand.
tn Admiralty. Suit to recover salvage. Decree for libelant Wilcox, Adams &: Green, for libelant. Wing, Slwudy &: Putnam, for respondent. BB:oWN, J. The compensation awarded in a court of anmiralty for salvap;c services is not given as a mere quantum 'meruit for the work and labor done, but on grounds of public policy, in the interest of navigation, and for the safety of property and life, and as an and reward' for the readiness, promptitude, and energy necessary to secure those ends, both in the conduct of the salvors personally, and for the vessels and other appliances previously provided for such service. Viewed as a reward, therefore, salvage is not properly a subject of any binding contract in advance, except as a limitation of the salvors' demands. In cases of present distress and peril the very necessity for salvage service presupposes that the parties do not stand upon equal terms as respects any contract they may make on the subject, any more than a captured prisoner in stipulating with brigands fot his ransom. While a sum agreed on in advance and in the presence of danger may, therefore, limit the salvor, it has little or no binding effect upon the other party. All courts of admiralty freely examine into the circumstances in the interest of the latter, and award no more than a reasonable sum, without regard to the amount agreed on. See Chapman v. Engines, etc., 38 Fed. Rep. 671,6'72, and cases there cited. The Code of the Netherlands, to which country this vessel belonged, like the Codes of several other maritime countries, expressly provides (section 568) that any agreement as to salvage compensation made at sea before the danger is over "can be modified or annulled by the judge." In the present case the Schiedam had become wholly disabled in her machinery, so as to be compelled to anchor some 15 miles to the east1
Reported by Edward G. Benedict, Esq., of the New York bar.