ticel. "The bill is dismissed.
cailnot think ttmt,w this compeUhaabeen,guilty of fraudulent and dishonest prac-
GILL & ]J'ISJ-Il1)R, Limited, v.
(01rcuit Oourt of .Appeals, Third Oircuit. 1.
December 23, 1892.)
Anchitrter party made 'on November 5th, after describing the ship as tra,qmg," provided that. She should sall with "all convenient speed" lay days not to commence before the lst day of January; tQ have the. optlo:Q. of· QallceliD.g the charterl?a11ty in case the wss not "ready for cargo" at the port of loading on or before the 31gMiW$'" of January. Held. that there wss no implied agreement that the shipahould' be ready Qn the ,1st of January unless :prevented by tile exthere of the clmrter party when tile vesp:p,the last it appearing that at the date of theriQntrilct She was S. C., for a voyage to Bremerhti.ven,:Whlcb.rvoyage'she m8.deWlthreasonable diligence, 'and that she was for necessary. Depll1rs. 50 Fed; Rep. 941, affirmed. .. SAKE.-RuAinllmsS FOR CARGO-'I-SUNDAY. ' The ship having arrived on the last day of the month, and being theIl- in ·to . 3Jild n()tlceof, IiJUGh. readiness beln,g party fulfilled, although month 11'9 SUtidi:i.y, and the work of loading could not beglnuWlt1!,tb.e fullowlng day., " 50' Fed. Rep. 941, affirmed. 8. READINEssi' I'; , '1'he rule of the Philadelphia Maritime Exchange providing that, when vessels;cb.a:riered to load grnlnrat that port are ready for'cargo, the notice of readin.essmust, to be vaUd; fie ;accompanled by It certlflcate of readiness cannot be refrom the! surve;yors of the board· of marine garded' ·ss'incorporated into It oharter party made in the city of York: for the:.employmenj ot a British vesiel, wben the oontract itself makes no reference to suc-h rule andtbe owner isignol'll.l1t of Its existence.
Appeal from the District Court of the United States for the Eastern District of 'Penns:tlvania. In AdDliralty. Libel by JohnL. Browne, owner ()f the steamship Gill & Fisher, Limited, to recover for the breach ofa charter. party. The court below decreed in favor of the libelant. 50 Fed. Rep; 941. Respondents appeal. Affirmed. R, o. for appellants. Henry Jrfl;l,p,.ders, (Flanders & Pug1l., on the brief,) for appellee. Before AOHESON and DALLAS, Circuit Judges, and BUFFINGTON, DistcictJudge. AOHESON, Circuit Judge. By a charter party dated New York, November 5;,1891, and that day executed, Gill & Fisher, Limited, of Philadelphia; cha'rtered the British: steamship Harbinger for a voyage from Philadelphia to Queenstown,' Falsmouth, or Plymouth for orders, with a cargo of grain, at· specified freight"rates. The charter partY,after describing the Harbinger as' "now.· trading," provided "that, the said steamship 'being tight, staunch, 'and strong, and in every way <fitted for the voyage; 'With liberty 'W! take outward cargo
GILL & FISHER V.BROWNE; ,
to -'- - for o-wriera' bEmefit, shall, with all convenient speed, sail arid proceed to Philadelphia, Pa.," etc. It contained theusuaJ clause, "The' act of God, restraints of princes and rulers, ,the dangers of fires, the seas and navigation, accidents to boilers, machinery, etc., always ex· cepted," and the provision, ''Vessel to load under inspection of underwriter's agents, at her expense, and to comply with their rules;" and it stipulated that the 15 running lay days allowed fot loading "are not' to commence before the first day of January, 1892." Thenfollowed this clause: "Should the steamer not be ready for cargo at her loading port on or before the thirty-first day of January, 1892, the charterers or their agents to have the option of canceling this charter party at any time not later than the day of steamer's readiness." I At the date of the charter party the Harbinger was at Charleston, S. C., where she had gone for a cargo of cotton for Bremerhaven, and upon completing her ,loading she sailed from Charleston, on or about the 23d of November, for Bremerhaven, where she arrived the 17th of December, and there unloaded her cargo, which occupied seven days. The vessel then proceeded to Shields on the Tyne, Eng., for needed repairs to her engine and for bunker coal. She reached Shields on December 26th. and was there detained in making the repairs until January 9, 1892, on which date she sailed in ballast to Philadelphia. over, the ship encountered extraordinarily bad weather. On her She reached Philadelphia on Sunday, January 31st, coming to anchor in port at 2 o'clock P. M. The ballast had already been removed from the ship, and every preparation made for loading her, so that when she came to anchor she was entirely ready, so far as her condition' and equipment were concerned, to receive a cargo of grain. The master immediately went ashore and to the appellants' office, but found no one there, the office being closed because it was Sunday. He then, shortly before 3 o'clock, sent a telegram to the appellants announcing that the Harhinger had arrived at 2 o'clock P. M., and was ready to receive cargo. This telegram was delivered to Mr. Barker, the managing member of the firm of Gill & Fisher, at his residence in Philadelphia, at 6 o'clock on the afternoon of the same day. About 10 o'clock the next morning, Monday, February 1st, the surveyor for the marine nnderwriters inspected the ship, and issued a certificate of her readiness to receive cargo, and the master then gave the appellants written notice of the ship's arrival the day before and her readiness to load, but theappflllants verbally refused to load her. Later on the same day the appellants served a written notice on the master that they had elected to cancel the charter party. The ship was then rechartered at the best obtainable rate, but at a loss to the owner, freights having declined during January. It appears that the appellants on January 15th-having learned, Mr. Barker testifies, the date when the Harbinger had sailed from Shields, and believing "she could not possibly make her time of arrival"-ehartered at a lower freight rate the steamship Holmlea, which had sailed ,from Hartlepool a week earlier, and they loaded her with the cargo they had provided for the Harbinger. The defenses to the libel were: First, a breach of the covenant to sail to Philadelphia; second, failure to be ready to receive cargo
the time Both defenses were overruled by the .. and. a decree was entered in favor of the libelant, the Harbmger. contend that there was an implied agreement that sholud be at Philadelphia by the 1st day of January, unless prevented by the excepted perils. But the stipulation that the ship shall ""With all convenien,t speed sail and proceed to Philadelphia" is to be,' read in connection with the other provisions of the charter party",. Only thus can the intention of the parties be discovered. Now,Jt was specified that the ship was then "trading," and undoubtedly tl;te contracting parties had regard to that important fact. Indi· cations of this appear upon the face of the contract. Nomention was place from,which the vessel was to sail; neither did the CQ."Ji!;,t,.,r, " igna,,' any, da.t,e,' !or ,te of th.e voyage to lltma:4e)p¥fl-; ,pol' was, tile. tlllle wIthw WhICh the vessel ,should artP:ere, ,4¢iined. Her, lay days loading, it -w:ill be perceived, on 1st, but not before. ',Clearly, within of tlIe parties, the lay days might begin later. On ;the owner of; t:he !Ship WQ$. ,not to tender her before Jan0,I:l- the othe,.r", hand the,',Charterers ,might refuse to load her to arriv:e:by the last dlty of the month. The charterers did notex;act from the ship a stipUlation to be in Philadelphia ear,ly in ,Ianllai'y, but weJ;e content to .reserve to themselves the option to cancel if I;lhe did not come during the month. That the charterers maY not have known, whe;n the contract was made, that the ship was at Charleston loading for Bremerhaven, is unimportant. They seem to have been wilIing to take the chance of any delay in the ship's arCStused by her fulfillment with reasonable dilirival ,!l,t gence of her then existing trading engagement, whatever it might be. In Hudson, v.Hill, 43 Law J. C. P. 273, a stipulation to proceed ''forthwit])." to qJ.eanthat the vessel should go with reasona];)le , Here the .language was "with all convenient speed," an<l this, we ,tJ;Unk, meant reasonable diligence with reference to the trading vqYl'!'gewhich the ship had already undertaken. Upon this cOJ,lStructiQn 'Qf the charter party there was no breach of the stipulato The evidence fully discloses the tion to, moyeme;ntsof ,the vessel, and shows that she completed her voyage to Bremerhavenandmade needed repairs without any unreasonable delay, and then. "With diligence sailed and proceeded to Philadelphia. v. Adams, 1 Bing. N. C. 29, which the The case appellantacite, is clearly distinguishable from the present case. There the ship Was to proceed in ballast from Portsmouth to St. Michaels, two or weeks distant, to bring a cargo of fruit for the London ma,r)i.et. ,The, course of the fruit trade required expedition. rAe made October 20th. December 1st was named as the the lay days for loading. With reasonable diligence have arrived in London by January 1st; but instead the in ballast directly to St. Michaels, the vessel went to of ,which she was able to land, and therefore was Oporto obliged to return to Portsmouth, and reland the troops there on No-
GILL & .FISHER tJ. BROWNE.
vember 28th. She did not finally sail· on her voyage·OO St. Michaels until December 6th, and did not reach London until February 1st. Nor is our conclusion inconsistent with the ruling in Lowber v. Bangs, 2 wan. 728, that a stipulation that the vessel should "proceed from Melbourne to Calcutta with all possible dispatch" required her to go directly from the one place to the other. The second defense raises the question, was the ship "ready for cargo" within the agreed time? In the court below an unsuccessful attempt was made to establish a custom in the port of Philadelphia that where s, vessel is chartered to load within a certain time, and the last day falls on Sunday, she must tender herself on the preceding Saturday. The point has not been pressed here, and it may be dismissed without comment. As already mentioned, the ship in herself was in actual readiness to receive the cargo she had contracted to carry, when she came to anchor in the port of Philadelphia. Was she "ready for cargo," within the meaning of the charter party? We think she was. Observe, the contract. contemplated-indeed, expressly provided actually happened, namely, the arrival of the vessel dIiSunday, January 31st; and it must be assumed that the parties knew that by the law of Pennsylvania woddly labor on Sun· day is forbidden, and therefore that the loading of the ship could not begin on that day, nor anything more done on her part than was done. Again, the clause in question relates not to the act of loading, but to the ship's own readiness to take in cargo. The two things ltre distinct. Here the ship was ready in fact; she fulfilled the very terms of the contract. The words "ready for cargo," in the connection in which they occur, naturally refer to the condition of the ship herself, and we see nothing to indicate that they were used in any other sense. n appears, indeed, that by the rules, adopted April 28, 1887, of the Philadelphia, Maritime Exchange, an incorporated body of merchants, notice that It vessel chartered to lOad grain at Philadelphia is ready for cargo, to be valid, must be accompanied by a pass of the surveyors of the board of marine underwriters certifying to the vessel's readiness. But clearly these rules are not to be imported into a charter party made in the city of New York for the employment of a British vessel, when the contract itself makes no reference to them. Hick v. Tweedy, 62 Law T. (N. S.) 765. It is not shown that the Harbinger had ever before been at Philadelphia. Her foreign owner had not given his assent to these rules. They were not known to him, so far as appears. Moreover, one of the appellants' most experienced witnesses testified: "The object of this notice is to show the readiness of the vessel, so that her lay days may commence. the following day." The whole evidence indicates that this is the sole purpose of serving upon the charterer the notice and accompanying surveyors' certificate. Therefore, even if upon the proofs it could be said that such a usage exists at Philadelphia distinct from the rules of the maritime exchange, still such· usage could not properly affect the construction of a clause of the charter party which does not relate to the matter of lay days, but concerns the readiness of the ship to receive cargo. We have only to add that the words, ''Vessel to load under the inspection of underwriters' agents, at her expense, and to comply with
their' Ibles," db ·not':miU,'tate'aga.inst the above'vieWs; .for :botonly does,j:hatpr6vision manUei;ltly:refer to the act of.load'ing'theship aft,er,&cepta:ncebythe'bharterer, but it strongly that, if the part'iek,meant to have the ahip's readiness for cargo depend on a surveyor's ,oorti.fliat.e1 theyw(>uld' lilivegiven eXpression to that intention. Hating thus reached the conclusion that the sl1ip Was ''ready for cargq1' on 'Jap.nary 31st, it is not necessary for us· to· express an opinion nponthequestion whether under the general rule oflawthat, where th.e,:tUhelof ·performande ofa contract falls on Sunday, it is legally pe'Df6rmable the:next da¥i Ifih.e ship's adinittedreadinessthe next morning:MIiSisUfDCient comphianoowith the charter pal'tr.. below isaJtiliDied.
(l)iltrict ;0. New York.
LA. ClIAMPAGNE. November 28; 1892.)
A;realodbleamountipMd. in settlement of a lalvageclatm agaInst a vessel ill wq!l(re the went to suit on disputed facts, and. tb.erll no, reascw. fOr supposing that the settlemelltwascollusive, is a damage to be cliarged agai'net the vessel in fault for the colli.lon.: ." " , and was makin( her sound,v&,lu!l b;r this, method $16;ltib. ·Es.tlmates ' as' tuher value by witnesses tor one. party varied from *12;OO(ho $14;000, for 1ib:e'JOther party from *22,000 to $25,000. The commisIlcmllr adopted the va)u,;1\r" above given. .Held. that his finding would not .' > \ ,., .. ' i:, ' :
.. BaE"+A.sCBBTAININ9VALUE OJ' VBSSEL,BEJllOItlll COLLISION.,· A..'Y;' M .a. r C011.ISIO,.,11.·.. Wa. SilO.ld in he. l' damaged .c.aD. dit.iO .for. $6,650. .. . . ... ..
Where of a 'de,maged by collision elect to have, her sold in her damaged condition. they'dannot recover demurrage; for intetestis the legal inthe delayio the hlance of her original value from the . "',i ' . ' ". ' wrong oer."
. Iriteres'. sliould be added on the amo"ntpaid for the wreck by the porchaser>duriI1g the' ·period' occupied by him in repairing. when that mode il adopt4d ,settJ,iQg ,thlly-.Iue of the vessel,. Sillce. in otde;rto tepair. it is necessary amount,pould lie idle. during that period. On a Voyage broken' up by collision, an 'allowance, al a.nltem of damagel, of the wbol,6'amount fllelght, less the 'expenses of the vessel duriol the time it Wil),qldh&,ve h,r to complete her voyage, ill proper.
EXPENSES. .". "
FOR WaECx-WHJ$N RECOVERABLE.
Owen,Q:ray& Jones &
On libelanta., cla»nants.
The darilages from collision in tIle above (43 Fed. Rep. 444,) and the report of the commisslonel'! assessing thedamages1lled. exceptions have been taken to the' anlounlt! allowed fforthe datna.ges +,0 the vessel, for demurrage, tot' salvage"for :freight, and for some' other items. BROWN;, DiStrict Jndge.