XBImmsu v. to!rclfit
ELDER SUGAR REFINING
CHURNSIDE· 'iI. SAME.
Oourt of Appeal.B, Second Oircuit. November 14,1891.)
On tb'e'evideIlce, held, that ,all the sugar received by the steam-ships Ixia and Hampshire bad been delivered, the contents of the missing bags having been put into new bags by the ships' men; and respondent's claim to make a deduction from the freight because of suoh alleged shortage should not be allowed. 42 Fed. Rep. 511, afilrmed. ,
Appeal from the Circuit Court for the Southern District of New York. In Admiralty. Suit by of the vessels Hampshire and Ixia against the Havemeyers & Elder Sugar Refining Company to recover a balance of fQrl(ibelants was affirmed by the circuit court, and respondent appeals. Affirmed. The evidetlce 'showedthat<tha Nspondent took charge of the unloading, and its handled the bags roug1;l.ly J de,stroying some of obliterating ,their marksj, tbat, a, great deal of sweepings remained after the discharge, which werepldced in' new' bags by the "The delivered 2.llm. prp than the bills 'oflading Called/ol'; the Ixia;16. ,The shortage lD weIght \'vas not 1 per 'ceiit:iof'thtf'ahiount stated' ill the bills of be accounted for by the tendency of sugar to vary lD 'WeIghtfrom mherent causes. The district court held that all of the sugar received had been delivered, and hence that the alleged offset 'to libeliults'claims failed, and they ent,itl!ld to (42 Fed. Rep. ,,511;) and, on appeal! a pro ]liIrJiaaffirmarice was rendered by the circuit court, whence raspondentappeale4 to this court. ,.' · Shepairq.&Ogden,for appellant. ()o'rr:Vei'8 Kirlin, for appellees. Befol'e WALLACE and Circuit ,'There is no. proof of a, of cargo in, dases:, 'except as to the sugar in the 11 cargo bags not delivered by the Ixili; andtbe 15 not delivered by the Hampshire. '. We are satisfied nta ",o.r,thes,e ba,g,s, w,ere.delivered. the '"7,, bagsof the Ix18"ai1d:tl)e 211 of the Hampllhlre, contalDmg sweepmgs, and t,hat s6Ip'El of.tbecargo bags wcrE(destroyed by rough 'usage during the aischarge'; and othe!s, qestroyed, were, put inside the new bags. The decree of thejcircuit court in each case is affirtned, with interest, and the costs of the appeal to be paid hy the appellant, and the cause remanded to the circuit court for further proceedings in conformit,}, with this opinion.
HALL tJ. KELLY.
(Dilltlrfet Court, S. D. New York. January 80,1892.)
BHIPPING-CHARTIlR-PARTY-OPrION TO REJECT VE881lL-WHERE EilllltdtSED.
Upon cbarterllfor loading the ship in remote places across the seas options providing for the acceptance or rej ection of the charter are to be exercised at the place where the ship is to load, and the ship has no right to call upon the charterer to'exercise his option elsewhere. A oharter of a vessel from Macoris to the United States stated that the charterer was to have option of canceling charter if vessel had not arrived at Macoris on or bafore June 20, 1891. .On June 22d. the vessel still being at GUada1oupe,her master telegraphed to his agents at Philadelphia asking whether he should go to Macoris. They consulted the charterer in New York, and, no release of the charter being obtained, the vessel proceeded to Macoris, arriving there July 1st to find her cargo had. been shipped on .another vessel. On suit brought to recover damages for nonful:llliment of the oharter, held, that the ship took the risk of Dot finding the carKO after the appointed day, and could not recover in this suit.
AT PORT OF TBADE BY SPECIFIED DATE. ·
In Admiralty. Suit by John W. Hall against Hugh Kelly for damages in failing to load vessel under a charter. Decree for defendant. Wilcox, Adams «·Green,·for libolant. George A. Black, for respondent. BROWN, District Judge. On the 9th of April, 1891, by a charterparty made between the defendant and Thomas Mumford, master ofthe schooner Samuel W. Hall, then lying at Philadelphia, the vessel wlis chartered for a voyage from Macoris, San Domingo, with a cargo-of sugar, to the breakwater for orders, and to discharge between Hatteras and Boston. The charter stated: "!tis understood vessel loads lumber at Bucksville for Guadaloupe and when discharged there it is to proceed to Macoris to enter upon this ch\,rter. * * * The charterers to have option of canceling charter if vessel not arat Macoris on or before June 20th, 1891." On the 22d of June, the schooner being still at Guadaloupe, her ter telegraphed to her agents in Philadelphia to ascertain whether she should proceed to Macoris, and not obtaining allY release of her chan-er obligations, she proceeded thither. She sailed from Guadaloupe on the 28th of June, arrived at Macoris on the 1st of July, and on reporting to Mr. Mellor, the defendant's correspondent there, was informed that the cargo designed for the Hall had been shipped on the 26th of June on board another vessel; and that he had no cargo for her. The ml:\ster tbereuponproceeded to Turk's island, where he obtained a cargo of salt fOf Providence, R. I. j and thereafter filed this libel for $621 alleged damages for the refusal to load the cargo of sugar at Macoris. I cannot sustain the libelant's claim. The charter was in fact mad,e ,for account of Mr. Mellor, who had a sugar plantation at.Macoris,and had been accustomed to obtain through the defendant charters of vessels to come thither for his products. The present charter, however, di,d not