5 F. 209 -

BOULT V. SHIP NAVAL RESERVE.

209

trouble on themselves, and have failed to prove more than an insignificant part of the damages claimed, and in fact appear to have instituted a frivolous suit. Decree accordingly.

BOULT

and others v.

SHIP NAVAL RESERVE,

etc.

(District Oourt, D. MQ/l'yZand. January 13,1881.)
1. CHARTER-PARTY.-The charterers agreed to pay for the vessel a lump sum. They procured, to be put on board by freighters in Liverpool, a cargo of iron ore, at a rate of freight which, on the amount of oro put on board, would have exceeded the lump sum which they were to pay. The charter stipulated that the master should give the Charter. "ers a draft for the excess of freight between the charter and the bill of lading, the draft to be drawn on the ship's consignee at the port of discharge, payable 10 days after ship's arrival. The charter also contained a stipulation that the charterers were not to be held liable for any loss of freight arising from leakage, breakage, drainage, or any other cause beyond their control. The bill of lading fixed the freight at a certain rate per ton of cargo deUvered. On delivery of cargo at Baltimore, there was found' to be a considerable loss of weight, and the freight on the actual output was less than the lump sum mentioned in the charter. It appeared that the loss of weight was not attributable to any fault of the ship or owners, and that some loss of weight on such a cargo was always to be expected. (1) Beld, that as the bills of lading called for freight only on the weight delivered, and that as the freight on the actual delivery fell short of the lump sum, there was no excess payable to the charterers. (2) Held, that the stipulation that charterers were not to be liable for any loss of freight arising from causes beyond their control, was not to be so interpreted as to entitle them to demand a fictitious excess of freight which the bill of lading did not entitle the ship to collect. 2.
SUIT

BETWEEN FOREIGNERS. - The charter- party was executed in Liverpool, between British subjects, and the vessel was a British ship, but the vessel having been attached within the district, and it appearing that all the facts necessary to determine the case were SUfficiently under a foreign commission, held, proved without taking that justice would be promoted by the court, :ta1l.ing jurisdiction and disp!!sing of the case.

In Admiralty. v.5,no.2-l4:

Charter-pa.rty.

210

FEDERAL

Robert Baldwin, for libellants. Sebastian Brown, for respondents. MORRIS, D. J. The owners of the British ship Naval Reserve, 1,831 tons, on February 4, 1880, chartered her to the libellants for a voyage from Liverpool, where she then was, to Baltimore, for the lump sum of £1,212 lOs. The charter-party shows that it was contemplated that the libellants, who were ship-brokers of Liverpool, might not load the vessel themselves, but might procure a cargo to be put on board by other freighters, at a rate which would yield them a profit, and that the consignee of the vessel, in thlltt case, was to collect the whole freight, and they were to receive through him the excess. Accordingly, the charter-party contains these stipulations: "The freight, [that is, the lump sum] to be due and payable, on true delivery of the cargo, in cash, at current rate of exchange for bankers' 60-days' sight bills on London, on date of vessel's entry,at custom-house; captain to give his draft on his consignees, at the port of discharge, in charterer's favor, payable 10 days after ship's arrival, for any excess of freight as per bills of lading and this charter. Any deficiency between freight and charter to·be paid here in cash, less three months' interest and cost of insurance thereon. The charterers are 110t to be held liable for any loss of freight arising from breakage, leakage, drainage, or any other cause beyond their control." The charterers, who are the libellants, did procure for the ship a full cargo of 1,800 tons of iron ore, known as "purple are," at the rate of 14s. 3d. per tOll on weight delivered. If 1,800 tons had been delivered the freight thereon would have amounted to about £70 in excess of the lump sum, and it is to recover this alleged excess of £70 that this suit is instituted. It appears, however, that when the cargo was delivered in Baltimore there was a loss of weight of l.bout120 tOllS, so that, instead of an excess, the freight actually received by the ship was some £20 less than the lump sum mentioned in the charter. The ship -ellCoun· ter0cl on the exceedingly rongh weather, and was

BOULT V. SHIP NAVAL

211

obliged to put back to Crookhaven to repair her rudder, and afterwards was compelled to jettison about 10 tons of the cargo, and to put back to Queenstown to get her pumps cleared, and while there discharged and reshipped a part of the cargo. She finally reached Baltimore, and discharged the cargo during the month of June. The discharging was conducted in the manner usual in the pod. The ore was hoisted from the hold and dumped into a shute leading to wheelbarrows, then wheeled to cars standing at some distance and dumped into the cars. When the <lars were loaded they were run on to scales and weighed by the custom-house officials. This process of discharging in this climate in the summer season necessarily affords opportunity for the drying of the ore. Purple ore is, when dry, a very fine powder, anli when wet forms into lumps about the size of grains of wheat. It takes up moisture very readily, and the diiTerence in weight between its dry and wet condition may amount to 12 per cent. It appears from the proof that there is always some 10s8 of weight on a cargo brought from Great Britain ana discharlSed at Baltimore. By merchants in the trade 5 per cent. is esti.. mated to be the average 108s. On 25 cargoes received by one merchant the evidence shows that there was a loss, on every cargo, varying from t a per cent. to 7t per cent. The loss on the cargo of the Naval Reserve was 7 37-100 per cent. The contention of the libellants is that, as by the termeof the charter-party "the eharterers were not to be held liable for any loss of freight arising from breakage, leakage, drainage, or any cause beyond their control,". they were to be paid the excess of freight called for by the bills of lading over the lump sum mentioned in the charter, "notwithstanding no excess of freight collectefl by reason of loss of weight in the ore from drainage or evaporation or other loss, and they claim that the true interpretation of the charter entitled them to have a draft in their drawn by the captain, before the vessel sailed. from Liverpool; the draft to be for the amount oUhis excess, drawn on the consignees of the vessel at the port ofdischargc, payable 10 days after the vessel's

FEDERAL REPORTER. '

arrival. It is to be observed, however, that the charter-party speaks of an excess of freight "as per bill of lading and this, charter." The bill of lading states the freight to be 14s. 3d. per ton on weight delivered, so that whether or not there was an excess of freight, "as ,per bill of lading and this charter, could not be ascertained until the cargo was delivered. This being the contract for freight expressed by the bill of lading,a contract made by the libellants themselves with the freightars,-and it being almost an absolute certainty that there would be, on a cargo of pm'ple are, some loss of weight, it is scarcely supposable that the owners intended that they were to pay to the charterers a fictitious excess of freight which they could have no expectation of collecting. The more obvious and reasonable meaning of the clause, "charter-ers nat to be held liable for any loss of freight arising from breakage, leakage, drainage, or any other cause beyond their control," in the connection in which it is found in this te'r, is, 'it seems to me, that if there was once put on board cargo sufficient, at the rate fixed by the bills ;of lading, to satisfy the lump sum, then the charterers, were not afterwards to be held liable to the owners for any deficiency whioh' might :a.rise from any cause beyond their conttol. This interpretation, r think; frilly satisfies the language of the stipulation, and is reasonable and sensible, while that contended for by the libellants seems to me strained and unrea!lonable. Whatever causes there were which united to produce the loss of weight in the cargo, it is clear they were not causes attributable to any fault of the ship or owners; and as the excess of freight intended by the charter must, in -my judgment, be held to be an actual excess, which the ship's consignee was entitled to collect from the consignee of the cargo, it follows that there is nothing due to the libellants. The claimants have urged the court not to exercise jurisdiction in this case for the reason that the libellants a.nd ciaimants are all British subjects, the ship British, and the. contract one made in Liverpool. If there were any allegations that the language of the charter is to be explained by any
H

usage or"custom op'beportof or if the f!1?tsnecessaryfor the consideration of the case had to be proved by testimony to be taken in that port, there might be rea-aons for remitting the libellants to the courts of their own country; but as the facts necessary for the determination of the question raised are not disputed, .and as the meaning of the contract seems to me perfectly clear and favorable to the party objecting to the jurisdiction, I have considered that in this case justice will be promoted by my exercising the jurisdiction which undoubtedly this court has, and by now disposing of the case. Other questions, as t() the form of the libel, have been raised by the claimants, but in the view I have taken of the controversy, on its merits, it is not necessary to pa.ss npon these questions. Libel dismissed.

THE

STEAMER ADIRONDACK.

Court. 8. D. New York. Deceinber 29,1880.)
L' BALVAO:m-.-ApPORTlONMENT-EXPENSES-SHARE
OF STEAUER-ENGm.. EER-TAJl;lNG ASSIGNMENT Oil' SEAMAN'S SHARE.

011 apportionment of a fund awarded by the court as salvage, which . is applied for by t1w master and part of the brew of the steamer rendering the service: Helfl, that the owners are entitled to $750, to be re-imbursed out of the fund before it is apportioned, as indemnity for all the expenses' IIJ)d loss by reason of the salvage service. That law expenses, incurred in the trial of the suit in which' the amount of salvage was awarded, should not be included, as they were rendered mainly unnecessary by the claimants having tendered, in their answer in that suit, and paid into court, all that was properly due for salvage service. That, follOWing the principle of admiralty courts favoring the claims of a steamer employed in a towage salvage service, a proper apportionment in the present case will be three-fifths of $6,750-the fund remaining after deducting the owners' expenses of salvage service-to the owners of the steamer, as principal salvor, and two-fifths to the master and crew, as follows: $300 to the master, and the residue among the officers and crew, including the master, in proportion