bID ,descrlbed tM oilor tM 'll1ohthis'hlre frt m March IV' The billrt:!ndered to. Mr. ,Monroe on' Ai)r1l11th,'.l?ed.. ' tbat CM.'rge '.
a.s., tor ' !'fourtb Trading Co. ,(AprU 1151 aCcru1ngupon an of· the 'the bills eould not. have so hire as they did,'. and tbey would not natural],); so drawp.; was no discharge or 'release of the' origllllil cbal'terers, nor any intent to discbarge theP1. , 'Tbere is an entire absence, also, of any written or any 'memoranda,' to sustain Mr. Holmes' version, such as might naturally have been expected in so important a negotiation, it there was, as he any new letting of the vessel from him to Mr. Monroe for 110adley & Co. On the contrary, the written memoranda made by· botb' parties, ,rendered by 'Mr; Holmes here, and the subcharter from the Honduras Company" in New precisely confirm Mr. Monroe's version, and 8i'e'llicompatible with the libelant's cont e n t i o n , ,,\.I' By the subcharter, Mr. Holmes lost Jlothing, but made at least one month's additional hire, and had the possibility.or; renewals of the, subcharter from the Hon4JP1llIJ,EJompany. The paymentuatklreceillt for both March ,and April expressly "tor the 3d month1s" and "for the 4th month's hire." This ,sham! a payment and an acceptance -on account of the' original charter, as Mr., Monroe testifies,and' not upon :any new bargain, Mr. Monroe denies positively, tbat ,he made any promise a'S to a renewal; but,' it anything was said, it; was ,no part of any bargain 'wltl1'Mr. Holmes, and 'was a matter of eourtesy GnlY. It was without consideration, and not .of any legal obligation. ,It was not material to anythitig"dlme, lis between Mr. Holmes and Mr. Monroe. Mr. Holmes parted with nothing on the faith of it. The libelants" OJ} the 11th of April,' were in no worse condition tor want of prior notice than on ,the 11th ot March, when the' original charterers became unable to eontinue the charter. ';I.'he charter did. not require any prior notice of diseontinl1ance,.and,as I have sald,was not released.. The confirmation of the respondents' version by all the contemporary written memoranda, and the ,ll,bsen(}e ,otany terms as the' respondents allege, satisfy Jl1.e thaf there was. no substlmtlQJ:1 .01' new bargain made. The City of 4Q Fed. 61:17,701; Wheclwrightv. Fed. 862. The libel must therefore' be diil'mlssed, with' <!osts.
regarded at the time <Mr. Holmes to the
Georgli!' nethune AdaDls, for appellant. George Walton Green, for appellees. Before LAOOMBE and SHIPMAN, Circuit Judges.
;,,:.r,'· ' .. :. ,
WENC:.KE et al·. v. VAUGHAN. <Circuit Court of Appeals, Circuit. . Jan,l1art 2, '1894.) No. 164.
CHAaTlIlR PAR'1"r:""NoTIOlIl OF RlIlADINEsS FOR OARGO-WAr'VER OF OBJECTIONS.
The master of a chartered vessel' gave notice of readiness for cargo sevell da:ys' before (he time when the charterers would be entitled to cancel tbe contract for failure to arrive'lflid give such notice. He tlllled,
WENCKE .,. VAUGHAN.
!;l<>wever, to furnIsh a surveyor's of readlnes8, as required by the charter party. The charterers made, no. complaint on this or any other ground, but told the master that a certaIn person had been selected as stevedore. They stated from time to time that they were not ready to furnish cargo, and on the expiration of the time gave notice of cancellation, on the ground of want of readiness. It appeared that there was some dunnage in the hold, which could have been removed in a short time, if complaint had been made. 'lIeld, that both this objection and the want of the surveyor's certificate were waived by the conduct of the charterers, and that they were lIable for fallure to furnish cargo.
Appeal from the Circuit Court of the United States for the East· ern District of Louisiana. This was a libel by Frank Weneke and Heinrich Weneke, part· ners as Weneke Soehne, against G. Vaughan, individually, and as surviving partner of the firm of G. Vaughan & Co., to recover dam· ages upon a charter party for failure to furnish cargo to the steamship Etna. The court below dismissed the libel, and libelants appeal. E. H. Farrar, E. B. Kruttschnitt, and B. F. Jonas, for appellants. James McConnell, for appellee. Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge. MoCORMICK, Circuit Judge. This is a suit upon a charter party, brought by the owners of the steamship Etna against the charterers for damages for not furnishing cargo. The case was submitted in the district court upon the question whether the char· terers are liable for damages. The charter party was executed in London, on October 11, 1888. The vessel was to proceed to New Orleans, and there receive a cargo of cotton. Lay days were not to begin before November 1, 1888. The eighth stipulation in the charter party provided:
"The master to give written notice to charterers when his vessel is ready In loading berth, with clean-swept holds, to receive cargo, with surveyor's certificate of readiness for cargo (as specified by charterers) attached, before 12 m., and the lay days to commence on the following morning."
The tenth stipulation provides:
"Should the steamer not arrive at the port of loading, and be entered at the customhouse, and be ready to receive and stow cargo before noon on the 30th November, 1888, charterers to have the option of canceling this charter party."
The vessel arrived at New Orleans November 22, 1888. The master called on the charterers that evening, told them the ship had arrived, and asked them where she was to be berthed to take in her outward cargo. The charterers could not designate a berth that evening, and the master was directed to come back to them in the morning. He did go back on the morning of the 23d, and the berth was designated. The master telephoned orders for put· ting the steamer in the berth designated. He waited till he learned that the ship was being moved in accordance with his orders, and a sufficient time in his judgment for the movement to be completed, and then served the notice of readiness to receive cargo. There v.60F.no.3-29
to'·the. exacfhour of giving thistl;otice. There 18 no ,dispute that it was given before 12 m., and that, If the vessel was not at that instant in her berth, she was in it before 12, m. The notice bears date 22d November, but that is manifestly error,and is satisfactorily e;Kplained in the testimony of the nl.a.ster. The body of the ,notice reads:
"Sirs: . ,t beg to inform you that the Germ. S.S. Etna, under my command, bas arrived, discharged. her inward cargo, !and is ready to receive her outward cargo of cotton, aC,cording dated the 11th Octbr., 1888, London."
No surveyor's .certificate this written notice. In reference. to the ,or tills notice,and what then and immediately thereafter occurred, the J;espondent G. Vaughan, te.stifies:
"1 got to the office of & .Co. about a quarter past 10 o'clock on the mOrning of the 23d of November, l8S8. The captain was sitting there,aulithe first thing 1 did waS( to sign a check to get money to pay his entrance fees. When the clerk came back, 1 said to the captain, 'Captain, if you are ready, you cangod(>wn 8JJ,d enter the ship;' and he got up, and then put a note on the desk. I said, 'What is that1' And hesaid; 'That is my notice.' And I said, 'What notice?' And he said, 'The notice of readiness to I-'eceire cargo.' ,And I said: 'Captain, you are rather previous with that. Yom: ship is not ready for cargo.' And he said, 'Ho'w is that?' And I said: 'Your ship is not in her loading berth. Your ship is not entered at the customhouse, and she hl\s not finished discharging cargo.' And he said: 'I asked you .for a loading berth last night, and you did not give me one.' And I"said: '1 cannot give you a loading berth until your cargo is discharged." He said: 'My cargo is discharged now.' I said: 'Captain, 1 doUbt 'that very much, but I will take your word for it. You can take your ship up alongside Viola at the head of Jackson street.' He then went out with my clerk to enter his ship at the customhouse, and that is all 1 saw of him that daY."
The master called at the office of the respondents every day ex· cept Sunday from the23d to the 30th of November. He saw the respondents, each of the partners, several times. ,Was told by them at one of hil;! first interviews that Clague was selected as stevedore, and was told from time to time that they were not ready to furnish cargo; 'The stevedore named went aboard the ship, and took breakfast there with the officers. Olague's partner, Gilmore, also what occurred when the notice went aboard the steamer. was given,· no suggestion was made to the master by either of the respondents or by either' of the stevedores or by anyone else that the ship was not ready to receive cargo. A.fter 12 m. on Novem· ber 30th, the respondents gave the master this notice:
"New Orleans, Nov. 30th, 1888. "Captain Pape, S. S. Etna-Dear Sir: Your canceling date expired at 12 . Not having received notice of readiness to receive cargo in acm. cordance With charter party, dated London, October 11th, 1888, we hereby notify you same is canceled. G. Vaughan & 00." "Yours, ,very truly,
"2 P. M.
The district judge correctly held:
"By receiv,ing the within notice without the certificate, and, when subsequently questioned by the master as to cargo; remaining silent about the absent certificate, the respondents must be considered to have waived that condition."