"','1'l1fl'ciipblitl:i lkstifies:thathad ;hekIi<rtVn of the' soundings' and holes fotlnd·byhis Bon, stayed a minu:te.:butwould·bave towed right the ttlg. l ', I 'Hetnadeno inquil'ies of Mr. Schmidt, the consignee; Kfid did not direct bis son to do 80. 'Inbis hurry to return, he took theohanoesof1>tnid-strearoas a. safe place to liein,and as J oannot 'find\ 'that either of the 'defendants were under any duty to the bed of the middle of the stream level, the libel must be dismissed; but costs.
court, B.D. PenmyWanta. April 8, 1899.)
BilIPPING-'QO'NTRAOT OF AJI'lI'BBIGHTMENT.·
The evideoc8of a master of a vessel and of a member of a firm acting aa the ship's w,as that a.shippel" hooagreed to ship 400'000 on the vessel. at that many· The shipper testified he h8.d agreed.to ship all he firm were pretty olos41yrelated to· the shipper also.i :Held, the weight of the .The evidence was against the shipper. :
In Admiralty. Libel. by Thomas B. Robinson, master of the schooner Lister, against Daniel L. Russell, to recC:)\1er dama/l:es for failCharles ure to ship a full cargo actiording to contract. Decree for libelant. Henry R. Edmunda,fo}' libelant. ". Flanders, & Pugh, for respondent.
BUTLER, District Judge·. Theonly question involved is one of fact, to wit: Did the respondent contract for the shipment of 400,000 shingles, as the libel avers, or simply for the number he might have on hand, 8S the answetstates? Thetestimony is directly conflicting. The only persons present when the oontract was entered into, were the master of the schooner, Mr. Robinson, 'William Harriss, of the firm of George Harriss, Son & Co., ship brokers, and the respondent. Messrs. Robinson and Harriss sta,te the contract to have been for 400,000 shingles and are very positive lI.0out it, while the respondent just as positively states it to have been for no given numbet, but such only as he might have-which he 400,000 or more. George Harriss, Son & 00. supposed were the ship's brokers, and are pretty closely rel(tted to the respondent. There are some circumstances referred to in the evidence which tend to shed a little light on the qUElstion involved, but its decision depends mainly upon the testimony of the three witnesSes named, respecting what occurred on the occasion referred to, when the. contract was made. A discussion <;>fthe is UlUlecessary. It is sufficient to say that its weight in my Judgment, against the respondent. A decree must be entered for the libEllant. If the parties cannot agree to a commissioner. upon the damages the subject will be
by Mark Wilks Collet, Esq., of the Philadelphia bar·.
THE OCEAN PRINCE.
THE OCEAN PRINCE.
?1uNCE STEAM SI;IIPPING
(District Court, S. D. New York. April 12, 1892.)
CoNSTRUCTION OF CHARTER-PARTY-" BAD WEATHER "-"DISPATCH MONEYS."
The words "bad weather" in the charter in this case, must be construed to In·· elude weather not fit or reasonably safe for loading by reason of the state of the sea as well "as of the atmosphere j dispatch moneys computed accordingly.
In Admiralty. Libel for freight under charter. Counter-claim for dispatch money. The steam-ship Ocean Prince loaded a cargo of iron ore at Elba, where there is no harbor, but only an open roadstead, in consequence of which the ore was furnished to the ship in lighters. There was a conflict of testimony between the master of the ship and the agent of the shipper as to whether during certain days during which no cargo was furnished the ship the weather was bad or not. The clause of the charter referring to the weather was as follows: "The act of God, rAstraint of princes and rulers, strikes of miners or workmen, bad weather, quarantine, !'iots. Sundays, holidays, frosts. stoppage of trains or mipes, accidents to machinery, etc., and all unavoiuahle accidl'nts, and aU caull6s beyond the control of tIJ... shippers, charterers, or the consignee, which may prevent or delay the loading or discharging, always excepted." For prior report, see 39 Fed. Rep. 704. Butler, Stillman Hubbard, for libelant. Benedict Benedict, for respondents.
BROWN, District Judge. The amount of freigllt, $3,913.27, is not disputed. The charter allowed for the loading and discharge at the rate of 250 tons per day during working days; Sundays, holidays, bad weather, etc., being excepted; and it provided for a credit to the charterer of £15 per day, dispatch moneys, for any time saved' upon the above allowance. Computation upon the amount of cargo gives an aggregate time allowance of 8 days and 5 hours for loading and the same for discharging. The respondents claim to have used but 5 days 18l hours in all, and claim a credit, therefore, at the stipulated rate, lor the balance of the lay-days. The principal question turns on the meaning of the term" bad weather" in the charter, and upon the actual condition of the weather while the vessel was loading by mellns of lighters three-quarters of a mile from the jetties, at the island of Elba, in the Mediterranean. From the evident general intent of the charter, and from the immediate context of the words "bad weather," they mllst be construed to include, 1 think, weather not fit for loading or unloading by reason of the state of the sea as well as of the atmosphere. The entries in the master's log, and his testimony, show that he oonstantly used the phrase in that sense. "Bad weather," as used.in the charter, means not merely weather during which cargo could not by any possibility ha.ve been