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
FEDERAL' BlllPORTElR i
state that it was for account of Mr. Mellorj but though Mr. Beattie in his conversation with the defendant on the 23d: of June, had sufficient notice that the charter was for account of the defendant's "friends" at Macoris, I regard even this fact as immaterial, and should decide in the same manner if the charter had been on defendant's own account and he had intended to load the vessel with his own sugar at Macoris. The of the charter.party was that the vessel should go "to Macoris to enter on the charter." If she did not arrive there by the 20th bfJytie,the defendantha,d the optipn to refuse to load. Upon such charters for loading at remote places across the;,seas, it has always been the law that the option provided for was to be exercised at the placethe ship wll,8 I,oad. Whoever represents the charterer. there is the person to exercise the option. There has been no question as to the laW' U'pon since the decision of Lord MANSFIELD in Shubrick v. Salroond, 8 Burrows, 1637. In that case, it is true,the terms ofthe charter· party more explicitly than in this case that the option was to be exercIsed after the ship's But no stress is laid upon this circumstance in the decision, the ground of which was that the ship had covenanted to go there at all eventsjthat the ship thereby became the "insurer of the risk" of getting there betore the time specified, in which, event she was sure of a freight; but still had a general chance of getting a freight even though she should not arrive until after that time. The pleadings in that case admitted that the ship failed to arrive at the time appointed,"through contrary winds and bad weather." The whole object of such a stipulation is to relieve the charterer of the neeessity of holding back his cargo beyond a fixed date for the ship's benefit,ifother means offorwardingit are at handj while the ship, unless relieved, remains bound to go forward and t..'l.ke the risk of any shipment before her arrival. In the present case the vessel had no right t before rea¢hing Macoris, to call upon the defendant to exercise his charter option at New York; nor does the evidence indicate that any such call was understood Or intended to be made. From the nature of the case any such call would" be unreasonable, both because at such a distance the charterer in New York coold not keep informed of all the circumstances at such a pla.ce as Macorisj and also because the ship had still a voyage to make in orderto reach Macoris. Whether, if she sailed. she would ever reach there, and the time when, if ever, would depend ohthe contingencies of the voyage; and the charterer wtlsnot required to take any of these risks. No doubt the charterer, when informed that the vessel could not arrive at the tinieappointed, might, if he chose, make a new agreement, or absolve the ship from the charterj but he was under no' obligations to closo, or to relieve the ship from any of the iisks she hadassnmedby the charter. Communication with Macoria was slow. A telegram and reply required from five to seven days. :Even hll.dtelegraphic communication been much easier, the defendant 'Was nnder no obligation to keep in telegraphic communication with Macoris for the ship's benefit" and merely to enable him to answer instantly her inquiries at New York, rather tban at Macoris, the proper place.
'l'HESAHUEL W. HALL.
When the defendant was applied to in New York to know whether the ship should proceed or not, [email protected]
(DUtrict Court, E. D. PennayZvanfa. January 29,
, .' The failure of a charterer to load a. full cargo on a vessel before she was obllged , :to leave to reach another port, where she had contraoted to be ready to deliver by a:oertain date, will not be excused on aocount of the incapacity of the master 'when the receipt of cargo and management of the vessel were in the hands of a competent person, and the failure to load resulted from the charterer's lack of expedition. .
CARGo-NEGLIGENOB Oll' CHARTERER.
I.riAdIiliralty. Libel by James McQuade, master of the barge Kathleen:':agiiinst HEmry McNaughton & Co., 00 recover damages for failure a full cargo. Decree for libelant, with order to appoint commission if parties do not agree on damages. ' Fla.'9'de;r8 & Pugh, for libelant. John ..A. Toomey, for respondents. BUTLEll., District Judge. The respondents on June 7 ,1890, chartered the barge Kathleen, owned and commanded by the libelant, to carry a cargo 6f railroad ties from King's Creek, Va·· to Philadelphia, for 17 cents per tie. The charterers were to load the ties-which were to reach Philadelphia by July 1st. The barge arrived at King's Creek June 15th ready to load. Several days elapsed before 811Y ties were put on board, and when it became necessary to start for Philadelphia she had taken in but 1,556. With these she on her voyage. as the charterers required her to do. The libel sets out claims to damage for the failure tolo8.d. (or pay for,) a full cargo---:'which the libelant says is 3,000 ties; and for delay at Philadelphia. The second claim, however, is .... ' The respondents do not deny that the cargo wits short; they admit that the could havecal'ried orilyabout 2,300. But it is alleged that the failure to load more than were carried arose from fault of iibelant-7that he was intoxicated during most. Of' the time while at King's Qreek, and that the responclents were thereby hindered and .d&layeq.iId6ltding. The burden of proof respecting this is on the respondents; and thetestimony does notsuPJ?ort their allegation. There isno douhtthatthe libelant was drinking; to what extent need not be mined. ,The receipt of cargo, and management of the barge for the time:.vr $ in charge of his son, tI. young man 24 to 25 years old, fully compct(lIlt fotthe service; and ldo not find anything to justify belief that, tl}e',respondents were delayed in their work by the libelant or by he is responsible. On the other hand it seems pretty clear that their failure to load a full eargo resulted from their own want of expedition. 'They had' several other vessels to. dispatch at the same arid seem to have 'been tardy in beginning the work. The ties were'gAthered from different places, some at an inconvenient distance,
by Mark Wilks Collet, Esq., of the Philadelphia bar.
THE.'WILLIAM L. :NORMAN.
and carried inlighters-several of which were too small to be well adapted to the service:-I do not believe, however, that the barge had capacity for 3,000 ties. On the only previous occasions when she is shown to have carried a similar cargo, she had on 2,328 to 2,363. One of her own witnesses, Mr. Dempsey, Rays 2,300 oak ties, such as are made in the neignborhood of King's Creek, is a full load for her, in his judgment. The libelant and his son put her capacity a good deal higher. In view of all the evidence touching this point I do not think it would be safe to her with a capacity to carry'more than 2,400. The libelant will be allowed a decree for the balanoo unpaid, estimating her ,capacity at this rate. If the parties agree on the sum to be paid, in this view of the facts, the expense Of a reference will be avoided. OtherWise 'a commissioner ll.1Ust be appointed.
SMITH tl. THE WILLIAM
(Df8trtct Oourt, E. D. NeJID York.
November 20, 1891.l
BBAJlBN'S WAGES-OANAL-BoATs-REV. ST. § 4251-WHAT IS CANAIrBOAT. Section 4251, Rev. St. U. S.,pr9vides that "no canal-boat * * * shall be sub-
ject to be libeled' in ,any of the' United States courts for the wages of any person who may be employed on board thereof," etc. On suit brought for the value of services rendered by the libelant on board the William L. Norman, form a canllolbl»j.,t,Jwl4, that a vessel engaged in navigating canals is a canal-boat, within the meanlDg91 ,the statute, without reference tQ its form, and a boat not engaged in navigating canals is not a canal-boat, within the meaning of the statute, whatever may be its'tprm.
In Suit against the Stewart Macklin, for libelant. Peter S. Carter, for claimant.
L. Norman to recover wages.
BENEDICT, District Judge. ' This is an action to recover for services rendered by the libelant on board a vessel called the William L.Norman. This vessel was in form a canal-boat, and was employed in navigating the canal until April in the year 1889, when she changed owners. Since,tht:Lt time the vessel has not been engaged in navigating the canal, but has been' employed in the harbor of New York, in transporting grain and other articles about the harbor. The principal question in the case is whether this boat is exempted from liability to be proceeded against for wages by reason of section 4,251 oftha Revised Statutes of the United States, whi<lh prov,ide as follows:
iR&pOtted by Edward G.Benedict; ,Esq., of the New York bar.