SANDERS v. MUNSON. ,(DIstrict Oourt, S. D. New York. May 22, 1894.)
OJIARTJm' PAan - DELIVERY OF VESSEL IN FOREIGN PORT - TIME-" ABOUTAPRIL 10TJI-SEASONAnLIll START NECESSARy-BREACH OF CHAHTER.
Where the charter of ,a steamer, made at New York on March 3d, which all partIes knew was hired for th¢' fruit trade, provided that the vessel should'be delivered for charterer's use at a port in the West Indies "about Apr1110th," !leld, that the word "about" gave the owner only such additional time as might be by accidents of navigation on ,the voyage ,after a start; and such delay in startfngaElwo1ild prevent the ship from arriving at the port of delivery before april' 27th was, under the co'nditions of the trade' in which the vessel was to be employed, a breach of the charter, entitling charterer to recover against the owner. any damages sustained thereby.
This was a libel by M. J, against Walter D. Munson for breach of a sub-charter of the steamer Alert to libelant. Wheeler, Cortis& Godkin, for libelant. Goodrich,' Deady & Goodrich, for respondent. ' BROWN, District Judge. The above libel was filed to recover f.or breach of, a sub-charter made by the" defendant, the original charterer, in not delivering the steamer Alert to the libelant's use at Santa Marta, West Indies, at "about April 10, 1893," as agreMin'the sub-charter. The sub-charter was executed through Hurlbut & Co., ship brokers, in tmfil, on March 3, 1893. The Alert was at that time in this city undergoing repairs by the owner. The libelant was in business at New Orleans; the defendant resided and was in business in New York. The steamer was sub-chartered to the libelant for use in the fruit trade, between Santa Marta and New Orleans, as was understood by a,ll the parties. A round hip, with a cargo of bananas, between those ports, is usually mad,ein from 12 to 14 days. On the 31st of March the libelant received notice that the steamer wquld not be able to leave New, York before April 19th. to Santa Marta from New York occupies eight The usual days,-so tha.t if she met with no accident on the way, she could at Santa Marta before, April 27; and not be expected to she might aI:J:'ive there,even later than that q.ate, either through at New York completed by April 19th, failure to ha,ve the perilS', which might make the voyage or througb del1,tYs fr/?m Ne'r Y9l.'k longe-r.than eight days. The libelant accordingly, on March gave rescinding the charter. Some negotiations were:l:w.dcHetweep, the agent of the libelalltsent to this city, and the defendant, for the charter of some otller steamer under the defendant's control, but without result; and the steamer Claribel, which was larger and faster, was afterwards chartered by the libelant from other parties.
Reported by E. G. Benedict, Esq., of the New York bar.
500· Some testimon;y was offered by the defendant for the purpose of showing that there was a custom in the fruit trade which would admit of a valid delivery of a vessel at a foreign port at any time within 30 days, or upwards, before or after the date named, when the term "about" was used in the charter. The evidence is not sufficient to establish any fixed usage on this point. The use of this phrase is not general, but extends only to some charters made within about four years past. That is quite too recent, and the tdeas of the different witnesses are quite too indefinite and unsettled, to show any established custom as to a precise additional time which the word "about" should give. The principal witnesses for the defendant, moreover, stated explicitly that the introduction of this clause in some of their charters, where the vessel was to be delivered at a distant port, was for the purpose of allowing for the uncertainties of navigation to a distant port, on account of the delays that might unavoidably happen on the voyage through some breakdown, or collision, or stress of weather. Interpreted in ac· cordance with this object, it would not warrant any failure to deliver on the date named, except such as occurred through accidental causes arising upon a voyage commenced in season to arrive at the date named, under the usual conditions of navigation. Thus interpreted, this phrase would not justify any delay in a seasonable start, '!ven though that delay was caused by the need of repairs. Tully v. Howling, 2 Q. B. Div. 182. This is, in fact, the same as the legal construction that would be given to the phrase in the absence of any evidence, but upon the common knowledge of sea perils, and the prior law, which puts at the risk of the vessel any failure to arrive at the precise date named, when that date is material and fixed without qualification. Lowber v. Bangs, 2 Wall. 728; Shubrick v. Salmond, 3 Burrows, 1637; Tarrabochia v. Hickie, 1 Hurl. & N. 185; Behn v. Burness, 3 Best & S. 751; Tully v. Howling, 2 Q. B. Div. 182; The Samuel W. Hall, 49 Fed. 281. I cannot doubt in this case that time was an essential element of the contract; all the correspondence shows that it was so regarded from the first. The fruit season is short; the cargo perishable; previous arrangements must necessarily be made, and were made, for the bananas at Santa Marta. The vessel was to run in a line, and make semi-monthly trips. The proper care of a fruit cargo does not permit any material delay in starting on the voyage at the expected time. The use of the word "about" does not signify that time was here immaterial; but only that the precise day named was not warranted, and that allowance was to be made for accidents of the seas in going to Santa Marta. It did not absolve the vessel from the duty to leave the port of departure at a time sufficient in the ordinary course of navigation to reach the port of delivery at the date named. I hold the word "about" in this case to give only such additional time as is made necessary by accidents of navigation arising on the voyage after a seasonable start. In the present case, the delay in starting according to the notice given by the defendant, would amount to at least 19 days, about
equlll,·tpl&Itime··suftlcient for trips, and eivl!D, exeeed that. This would be a substantial ,DOD-compliailC.lMth: the charter, since not give thecharte:rer the benefit iofutleallO'Jlable the full season's business, as was contemplated. The libelant, npder this charter, .had a right, asU eeems:tQ,me, to the use of the Vil\sel substantially for the whole ban8n8dgea.soD, and for the whole number of voyages, and at the times,.eontempI8ted. I, In:theeaseof Tully v·. Howling,liluprl:t, Mellish"J., says:
":It WU(8.diriitted on the argument before us that the year for whIch the Conquest .11.1. cbartered commenced on: the 9th of April, and tbat the Conquest was J."eady to cargo,sothat the plaintlfl could have had the USe ofhet, until the 17th otJune;and-therefore the questions simply are, whetber a person who'has'agreed to charter a vessel for twelve. months, commencing from the 9th of April, Is bound to wait until the 17th of June before he ot the vessel, and wbether he is then bound to take of less than ten months? In other words, ina charter for a her tor a is the time of the essence of the contract, or Is the charterer bound to take'the vessel for a time SUbstantially diflerent from the time , specified inthe'Cbarter? We are of opinion that as in acbarter for a voyage the speclfle4-,voyage would .be of. th,e essence of. t4e contract, and the charterer, it titilOOUld not hlivethe use Of. the vessel for the specified voyage, would not 'be 'bound to take her for aoy other voyage, so in a charter for time, if the charterer cannot have the vassel for the specified time, he is not bound to take tbevessel fot a shorter time or a subEitantlally .diflerent time, and if he ,cannot get the vessel for the specified time he may throw up the cbarter,. rrian. <:eritracts'Which are to be mutually performed the party who claims the performance must be ready to. perform' hIs part of the contract, and cannot compel the opposite party to take somethIng SUbstantially diflerent from that Wbich Was to be given." . ,
The libelant, as I must hold, had a right to refuse to wait for the Alert, ahd to recover such datnages as he may show to have resulted from the breach of the charter. It was conteilded for the defendant that another steamer, equally good, viz. the Bergenzeren, was seasonably tendered by him in place of the Alert, but refused by the libelant when it was found that the Alert to leave New York in The Clari· bel, a large steamer, was chartered at a higher price.< This, however, goes· only to the qu.estion of damages. The facts as to the suf· ficiency of the Bergenzeren are but imperfectly proved; nor are the 'faets in eviden.cesuflicient to show upon what basis the libelant's damages shOl1ld be estimated; or whether he isjustifted in claiming for a costlier steamer than the Bergenzeren, or for a longer period :than one or two voyages, until the Alert was ready. 'Decree for the Ubelant,:with a reference to compute the damage-.
THE ALLIANCA.t IDGGINS et aI. v. THE ALLIANCA. (District court, S. D. New York.
May 15, 1894.)
MARITIME LIENS-PREMIUM OF INSURANCE -DOMESTIC VESSEL-STATE -DEBT CONTRACTED ABROAD-SPECIFICATIONS-SUBROGATION.
Libelants, as brokers acting for a domestic steamship company, procured insurance on the vessels of the company in England, T. & Co., their EngliSh correspondents, obtaining the policies from underwriters there. According to the established usage in England, T. & Co. paid the premiums, and charged them against the libelants, but they filed no specifications of lien here. Libelants denied any legal liability to T. & Co., but afterwards reimbursed T. & Co., and, themselves filing specifications, brought these suits against the vessels of the company to recover the money advanced. The law of New York state gives a lien for certain debts "contracted within this state." Hl'1d that, T. & Co. having no lien, both because the debt was contracted in England and because they had filed no specifications, libelants couid acquire none from them by subrogation. The law of New York state gives a lien "for advances made for the purpose of procuring necessaries for a ship or for the insurance thereof." Held that, to create a lien, the advances must be made for the purpose of obtaining the insurance, or paying off those who have a lien therefor; and where they are made merely for the purpose of repaying an old debt, not accompanied by any lien, no lien is created in favor of the person making such advances.
SAME-ADVANCES-REPAYMENT OF DEBT NOT ACCOMPANIED BY LIEN-CREATION OF NEW LIEN.
This was a libel by A. Foster Higgins and others against the steamship Allianca to enforce an alleged lien under a statute of the state. Wing, Shoudy & Putnam and R. D. Benedict, for libelants. Carter & Ledyard, for respondents. BROWN, District Judge. The above libel, and three others of similar purport, were filed for the purpose of enforcing alleged liens, under the law of this state, for moneys advanced by the libelants for the payment of certain premiums upon policies of insurance procured in England by the libelants, as brokers, through Tyson & Co., their English correspondents, in behalf of the United States & Brazil Mail Steamship Company, upon their steamers Seguranca, Vigilancia, Allianca, and Advance. The policies ran for one year each, and were taken out in England at various dates from March to November, 1892, by Tyson & Co., who were insurance agents at Liverpool and London. By the established usage of business in England, the underwriters there look alone to the local agent or broker who procures the insurance for the payment of the premiums. The debt fOl' premiums is owed to the insurer by the broker alone. Tyson & Co., in pursuance of this usage, paid to the underwriters the premiums on each policy shortly after it was issued, and the policies were forwarded to the libelants.
Reported by E. G. "Benedict, Esq., of the New York bar.