620
FEDERAL REPORTER.
stop and back as soon as the determination of the Morrisania to cross her bows was plain. The proof does not, I think, establish this point. The testimony of the officers of the Farragut is that they stopped and backed instantly, as soon aEt the swing of the Morrisania was perceived, and there is no indication that they were not properly watching her movementrs. The Morrisania obeys her helm quickly. The space within which her change was made was very short. 'Phe time must have been brief, probably hardly more than twenty or thirty seconds; and nevertheless the Farragut five or six revolutions backward. I cannot find, therefore, on her part any negligence or want of promptness in the observance of the rules as soon as the risk of collision was discernible. The Greenpoint; 31 Fed. Rep. 231; The John S. Darcy, 29 Fed. Rep. 644. The libel is dismissed, with costs.
ARDAN S. S. Co., Limited, (Di8trtct Oourt, 8.
'11.
THEBAND etal. 1
n. New
York. May 29, 1888.)
t. 2.
BHIPPING-CHARTER·PARTY-BILL OF LADING.
As between ship-owner and charterer shipping his own goods. the charter controls the bill of lading where there is difference between them.
SAME-LmERTY TO ASSIST OTHER VESSELS.
A clause ina bill of lading giving the vessel "liberty to call at any port 0.1' ports for whatever purpose. * * * and to tow and assist vessels in all situations." when the charter gives no such liberty. will not warrant, as the charterer, a material deviation to assist a disabled vessel. Liberty givena vessel to call "at any port or ports." or to tow and assist vessels" in all situations. "refers to ports along the course of the voyage specilied, or vessels met with in the ordinary course of such voyage. Hence, where a vessel after loading proceeded 40 miles directly out of her course to take in tow a disabled vessel. and was detained by such towage about seven days. held anunjustHiable deviation, rendering the vessel liable to the charterer for the increased premiums of insurance. and interest on his goods during the delay.
8.
J:lAME.
In Admiralty. Action for balance of freight. Whitehead, Parker &; Dexter, for libelant. Wing, 8/uiu,dy &; Putnam, for respondents. BROWN, J. In November, 1887, the respondents, by written charter, agreed to furnish the British steam-ship Ardanach a full cargo of hemp in bales from Progresso, Mexico, to New York. On the 23d or 24th of November a cargo 'Was accordingly shipped at Progresso, a portion of which was to be delivered to the respondents. A bill of lading therefor was signed hy the master, which reserved "liberty to call at any port or ports for whatever purpose, to sail with or without pilots, and to tow and assist Yessels in all situations." The charter did not contain any such reser,I
Reported by Edward G. Benedict, Esq., of the New York bar.
ARDAN S. S.
co.
V. THEBAND.
621
,ration. After loading, the steamer proceeded in a south-westerlydirection to Celestuns, some 40 miles directly away from her course to New York, in order to take in tow a disabled vessel, which she towed thence to Key West. The ordinary passage from Progresso to New York would be about seven or eight days. In consequence of going to Celestuns, and of the detention caused by the towage, the voyage occupied 14 days, which is not unreasonable, allowing for the towage. She arrived safely in New York; but the respondents, under the terms of their insurance, were compelled to pay an extra premium by reason of the detention caused by the towage, amounting to $400; and the interest on the invoice during the delay was $72.22. The respondents paid the freight, less these amounts, which they claimed were an offset. This libel was filed . to recover the balance of freight alleged to be due. . It has bee.n repeatedly held that, as between the parties to a written charter, the charter controls the bill of lading; where there is,any difference. Pars. Shipp. & Adm. 286; The Chadwicke, 29 Rep.'521, and cases there cited; Leduc v. Ward, 20 Q. B. Div. 475,479.' . As this; charter contains no sl.lch provision as that in the bill of lad,ng, on which. alone the libelant relies for justification in departing from the ordInary' course of the voyage, it is dOl.lbtfl.l1 whether that clal.lse hafolo any force as againllt the respondents. It imposes on them additional l'isks,whicl;l the charter did not impose. But the master had no authority to 'impose any new terms or conditions of the transportation which the charter did not contain; and the mere issuing of a bill of lading I.lpon loililling a charterer's goods is not treated, as between the parties, as evidence of any new contract, or as so intended; but as designed only as a memorllndum of a shipment under the charter. Aside, however, from the foregoing con13ideration, the scope of clauses in bills of lading like that in the present case has been repeatedly the subject of adjudication since the 'time of Lord MANSFIELD. In Gairdner v. Senhouse, 3 Taunt. 16, 22,lihertywas reserved to touch and stay at any port or ports whatever, and it wali! held that such language must be confined to ports in the course of the voyage specified. The same was decided in Solly v. WhitmoTe, 5 Barn. & A. 45, and in Williams v. Shee, 3 Camp. 469. In the very recent casPo of Leduc v. Ward, 20 Q. RDiv. 475, upon a b.ill oflading allowing "liberty to call at any ports in any order" upon a voyage from Fiume to Dunkirk, proceeding to Glasgow was held in the court of appeal to be an unjustifiable deviation. Lord ESHER says: . "In tbe present case liberty is given to call at any ports in' any order. It \Vas argued th:.\t that clause gives liberty to call at any port in. t.hE1. w<;>rld, Here. again. is a qupstion of the construction of a mercantile expression; used in a· mercantile and I think ,that as such tbe term can have but one meaning, namely, tbat the ports. liberty to call at wbich Is intended to be given. must be portswbich are substantially ports which will be passed on tbe named voyage. Of course sucb a term must entitle the vessel to go !lornewhat of the ordin1\ry track by !lea of the named voyage. for going inta port of callitself would involva that. To call' at a portis a well-ltnown sea term. It means to call for the purpose of business generally, to take in or unioad cargo, or to receive pr<ief8. It .must mean that the fltopat I
];'EDERALREPORTER.
theport of can for a time, or else the liberty..to call WOllld.l>:eidJe. 11;>elieve the term hal!! to .mean that the ship may call at sucbports as would. naturally and usually be ports of call on the voyage 'named. If the call at any ports, the invariable construcstipulation were only that she tion has been that she would only be entitled to call at such ports in their geographicalorder; and therefore the words ·in any order' are frequently added. But in any case it appears to me that the ports must be ports substantially on the course of the voyage. It follows that when the defendant's ship went off the ordinary track of a voyage from fiume to Dunkirk, to a port not on the course of that voyage, such as Glasgow, there was a deviation, and she was then on a voyage different from that contracted for, to which the exceptedpt>rilS clause did not apply; and therefore tha ship-owners are' responsible for the loSS of theg?ods." Pages 481,482. ' Theadditi(nla{clause in the bmofIading in the present case, "to tow and assist vessels in all situations," is used in immediate connection with the "liberty to call atanyport'pr'p'orts, for whatever purpose," and seems to me manifestly subject to the same necessary implications. It was inneeding help in all situations tended to ltuthorize assistance. to that might be met with in the otdinarycourse of the voyage. It was not designed to authorize, and did not justify the vessel in proceeding, after she wasloarled, as was done in this case, 40 miles directly away from' her port of destination, ti,uda way from the ordinary course of the voyage. Her doing so added materij;tlly to the risks of the voyage, and f$eems to me a deviation wholly foreign to the purpose 'and to the wellknown construction of such clauseshl bills of lading. Cases of slight' departure, like that of Stuart v. Navigation Co., 32 Law T. (N. S.) 257, for the salvage of vessels in imminent danger and distl'ess, are not app1icableto a '\lolllmercial contract. of towage of this kind, which would, i,f justified, subject cargoes, without limit, to the speculative ventures of masters. The o£fset is allowed,',and'judgment must therefore be for the with, costs. ," , .
THE PISKATAQUA.·
THE' PISR:ATAQUA. WARD' et
aL
V.SAME.
(lJiatrict Court, E. D·. (NWl York. June 16, 1888.) 1;' SimoPING-AFFREIGHTMENT-'S:EAWORTHlN'ESS - PRELrM:INAR"t SUMPTION. i" I"
'
,
PRE-
In the abSElnce,of any evidence of concealment, latent defect, bias, or fraud, ·a 'strong presumption of tbeseawortbiness of a vessel arises when a prelim!. nary ,survey has b.e,e,n held, by thll Ch,arterer, and upon such inspection the ves(8el has been found seaworthy. ' (SAME__
Libel,ant, SOl:lg,ll.t to hold the. ,bark p.liab. deliver,in g h.is c.argo of hidell claiming that the vessel, when she saIled from Montevideo for New Jaeported'b1EdwardG; Esq;, of the New-York bar.
