532
FEDERAL REPORTER.
parties,-invoked by the libellant. The doctrine has no application here. Whether it would avail the libellant if it had, need not be considered. It is much to be regretted that Fuuch, Edye & Co. did not immediately communicate Peter Wright & Sons' repudiation of the paper, to the libellant, on receiving notice of the fact. The ship had not then sailed, and no serious loss would have resulted, had this been done. The position they assumed,that th.eiragency closed with the signing of the charter,rests on a very contracted vIew of their duty,--,.the adoption of which they may yet, possibly, have occasion. to regret. The libel must be dismissed, with costs.
THE (District (Jourt, D. 1. CHARTER-PARTY-'-GOOD
VESTA.
February, 1881.)
SEA RISK.' A vessel was chartered for the. transportation .of. wh,E:at in bunt under a warranty tMt she should be tight, and strong, and, in every way fitted for the Held, under the Circumstances til' this case, that it was essential that the vessel' should be a good sea .' riSk fOlthe' merchandise specified 88 cargo......{Eo.
Shatt'U,ck, Holmes tt Monroe,; for libellant.. L. S. Dabney, for respondent. ·:NELSON, D. J. The libellant, being the charterer of the Russian bark Vesta, then on her way from Friedland to Delaware breakwater, bya charter-party dated October 22,1879, rechartered her to the respondent for a voyage from Boston to either of certain specified ports in the United Kingdom and on the continent of Europe. By the terms of the charter-party the respondent engaged to provide and furnish to the vessel a full and complete cargo of wheat Indian corn. The libellant engaged that the vessel should prepare bag grain at her expense; that she should be for bulk tight, staunch, and strong, and in every way fitted for
B::
THE VESTA.
533
such voyage, and should receive on board the merchandise mentioned. It was also provided that, should the vessel not be at Boston on or before January 15,1880, the cha.rterer was to have the option of canceling the charter-party. The lay days were to commence when the vessel was ready and prepared. to load bulk grain, and written notice thereof given to the charterer. The Vesta arrived in Boston about January 1st, and, having been prepared to load bulk grain, the master, on January 15th, gave written notice to the respondent that she was then ready to receive her cargo, and the lay days would begin to run on the 16th. The respondent at that time owned ac.argo of wheat in the elevator at East Boston, which he desired to ship to Europe, and the bark was taken round to the elevator wharf to receive. the wheat in bulk. Before proceeding to load, the respondent attempted to procure insurance on the cargo of wheat, but the risk was declined by all the companies to whom he made application; the reason for the refusal assigned by the underwriters being that the vessel was old,and built of soft wood. The respondent then declined to load the vessel, claiming she was unseaworthy and not fit to perform the voyage. The question'to be decided is whether, under, the circumstances of the case he was justified in so doing. The rule of law applicable to the case seems to be well settled. The obligation of the libellant under this charterparty was to supply a vessel reasonably fit to carry for this particular voyage a reasonable cargo of any of the kinds of merchandise stipulated for. The charterer was entitled to have the vessel in a reasonable condition for the carriage of wheat in bulk across the Atlantic ocean in the winter months, ana if she was not in such' a condition he was not bound to load her. Stanton v. Richardson, 7 L. R. C. C. P. 4:21jS.C. 9 L. R. C. C. P. 390; ,So C. 33 L. T. 193.' Shipmasters of great experience were called on both sides to give their opinion as to the fitness of the vessel for the voyage. The circumstances of the case seem to confirm the opinions of those called by the respondent, who prqnounced the Vesta unfit to carry wheat in bulk across the Atlantio 4
· '534
in . the winter months. Wheat in bulk is one .of the, most dangerous kindS of cargo a vessel can oarry,owing to its liability' to shift in heavy weather, and to choke the pumps. T.he Vesta :was built of soft Norway.pine. . The voyage was to in the months when storms are the most frequent and severe. She was rejected by the underwriters as an unsafe risk, and on this account was useless to the charterer for the purpose for which she was chartered. In the export grain business wheat is usually sold to arrive. Bills are drawn against the cargo upon the consignees abroad, payable in London, to which are attached the bill of lading, the c'ertificate of loading, and the insurance certificate. Upon this security advances are obtained upon the cargo. Withouttheinsurance certificate the bills would be of no value for this. purpose, and the exporter would be deprived of his advance,. which is one of the necessities of the bU!.'l.i1l6ss. The charterer would certainly have acted more wieelyif he had insisted upon a stipulation in the contract that the vessel should be· a good sea risk for the merchandise specifie<l as cargo. But the impressive fact remains that no insurance company c·ould. be found, after reasonable search, that was willing to aBS11methe. risk of this voyage under the circumstances stated. Torequire the charterer to load such a vessel would be a hardship which these parties could not have contemplated when this charter-party was signed. It should be noticed that neither of the parties had ever seen this ,vessel, or knew anything of her condition, until she arrived in Boston. The libellant insists that the efforts of the respondent toobtain insurance were not sincere, and his purpose was to escape fl'om his contract on account of the fall in freights which took place after the charter-party was signed. 'l'his, however, is not proved. The wheat market was also falling, and it was for the interest Of the respondent to get his wheat to market as sOOn as possible. I am quite satisfied he made all reasonable effort'to get insurance. ' It appeared that, later in the season, the Vesta was loaded with a mixed cargo of wheat and Indian corn, in bulk, at this r;:,rt, \\hich carried and delivered.hl good condition at an
THE JOH.N A. BERKl\IAN. ,
.
535
European port, and insurance was on this argo. This is certainly a circumstanoe in favor of 'the upon all the evidence, I am.of opinion libellant's ranty was broken, and the respondent was justified in refusing to load the vessel. The respondent's allegation' that he was induoed 'to sign the charter-party by the frau4ulent representations of the libellant is clearly not proved·. , Libel dismissed, with costa.
THE JOHN A.BERKMAN.
(District Oourt, D. Massachusetts. January, 1881.) J. DOCK-'LIABILITY OF OWNER OR OCCUPANT.
" The owner or occupant of a dock is liable in damages to a person who, by his invitation, express or implied, makes, use of it, tor an injury caused by any defect or unsafe condition of the dock whichthe occupant negligently causes or permits to exist,.if shch person'w8.'l himself in the exercise of due care Such occupant is not an insurer of the satetyof his dock, but hll.isrequired to use reasonable care to keep his dock in- such a state as to be reasonably safe for use by vessels which he invites to enter it, or'for which he holds it out as fit and ready. If he fails to use suoh due :care-if there is a defect, which is dilige,llce, known to hilli,or which, by the use of ordinary care should be known to him-he is guilty of negligence, and liable to the person woo, using due care, is injured thereby." . , Nic7(,er8on v. Tirrell, 127 Mass. 236. 2. SAME-.:..LIABILITY OF VESSEL.
Held; under the circumstances of this case, that the master of a vessel was at fault in attempting to enter a after the tide had fallen, when he knew that he was about to enter a dock where his vessel could not float at all conditions of the tide. 3. SAME-LIABILITY OF OWNER. Held, further, under the circumstances, that the owner of the dock
was also in fault in not cau1iioning the vessel to stop' before she by groundiI;J.g.-[ED. reached thl! point where shll' was
. D. J. This is a of damage. are the owners of the schoonel;John A. NELSON,
J. C. Dodge et Sons, for H. N. Shepard, for
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';rhelibelIants and the ,
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