816
FEDERAL REPORTER,
vol. 41.
was a notification to him that th,e charterers would supply dead-weight cargo. This is an untenable position. . If mere iI;lquiries for information were equivalent to stipulations, all cOmmercial negotiations would come to an end. The master furthermore insisted that in his conversation with Myers in Norfolk, on the the latter engaged to fnrnish flour and logs for It is hardly credible that Myers, with an option, which would last for 17, days, to load entirely with cotton, or to substitute 100 tons of dead-weight cargo in part, would, before he had studied the plan of the flhip then handed him,. and before notice of her readiness to receive cargo, cut himself off from control in the matter by ,agreeing to flour, which he did not have, or logs, which, as to Plost of those shipped from Norfolk and Newport News, too light for dead-weight. The weight of proof,and the probabilities of the case, negative this claim of the master..:The duty was upon the ship of having ballast on board, or at hand, under an. express stipulation of the charter-party; and the. master, was bound by this 'provision to be provided with. ballastbefore,giving notice of readiness to recelvec.argo, · notwithstanding any iofe;rences h El might have drawn individually, from the inq!;1iring. telegram Qr conversation. The. notice of readiness given on the WllS not valid or binding on the charterers; fOJ) the reason that .theship was not provided with ballast, and · could not. have sailed direct .for Liverpool without it. The state of things is similaJ,o in regard to the provisions of the charterparty tlllllt, "if any grain be. shipped, it is to be loaded under inspection of underwriter's surveyor," aodthat, when notice is given of the steamer's, readiness for cargo, "aU of her holds shall have been cleared, and passed for grain." The proofs show that when notice was given, on the 24th December, there wnsmore or less water in ho14 No. most. capacious Pl,U't of the ship,-and that withinthe.same week, when grain was to be aboard under the second chartering, the underwriter's surveyor required ceiling to be done, and boards and timbers put in, which work required about three days for accomplishment. The certificate of the two ex-mariners, Clayton and Adams, given some time on the 24th December, that "the ship was fit for the stowage of any kind of cargo," even if it.had been in time, and ,'even if the ex-mariners had been officers competent and au to" PllSS the ship for grain, "was in point of fact untrue, l\nd therefore worthlef;ls. It is not usual or safe to ship grain in a · hold wet .from a blind leakage, without ceiling, and without protection by ,proper True, if, ip. the period of 17 lay-days during which th& the ship was proceeding, the charterers had found it to their .;interest to ship'grain, in !luch event, these preparations might hav& '. b\ltthecharler-party required, expressly, that the ship should to receive, grain at the time of the notice. Certainly, , this ;provision of the contract was not fulfilled by the ship. r. must rllie in a like manner in respect to coaling. The ship hid not been coaled for the voyage on the 24th December. Ifloaded before coalip.g, .insteadofproceedjp.g dirept for Liverpopl as required byan express stipulation, she would have had to proceed to Lambert's Point or New-
CROW V. HYERS.
817
port News for coal, and then on her principal voyage. If such a divergence had been intended by the contracting parties, it would have been The custom of the port cannot enter into and change so material a part of the contract. Without coal on board, the ship was not ready to proceed, on receiving cargo, direct to her destination. Mr. J ustice LOPES, of the admiralty appeals court of England, in the case of GroveB v. Volkart, 1 Cab. & E. 309, a case tried by him in a suit at common law, laid down the law, generally, in regard to a ship's readiness to receive cargo, as follows: " A ship, to be ready to load, must be completely ready in all her holds,-must be discharged in all her holds,-soas to afford the merchant complete control of every portion of the ship available for cargo. 'rhe merchant can then stow his cargo as he thinks most advantageous. In no other circumstances can 8 ship, by which I understand must :be. meant an entire ship, be placed at the disposal of a merchant. If any other constl'Uction is placed on the words · ready to load.' it is obvious that great inconvenience would arise. It might be contended that a ship was ready to load when one hold only was empty, and a ml'rchant might not have the rest of the ship placed at his disposal for an indefinite period. I doubt not but that the defendants were anxious, and schemed to be able, to cancel thiS charter-party; but still I am bound to give effect .to what I believe to be ita true meaning. A custom was set up by the plaintiffs to load and unload simultaneously, but it was not proved,-in fact, was disprOVed." Id. . Coal was obtainable by the Cambodia only at Lambert's Point, three miles, or Newport News, thirteen miles, from Norfolk, where she was to complete her cargo. Nun cunstat but that she might have got aground on her wa3' to Lambert's Point, 8S she did after loading under her second chartering, or have grounded at the pier in shifting her hatches. Delay from this cause was not only possible, but both probable and not unusual; and the master had no right to impose the risk of such delay upon the charterers, after having consumed seven or eight days more time in reaching Hampton Roads from Gibraltar than had been expected: ather wharf in New York, from rainy most of the delay having weather. Whether unavoidable or not, the master had not succeeded in getting to Hampton Roads from Gibraltar with that alacrity described as the "life" of commerce by Mr. Justice SWAYNE, in Lowber v. Bangs, 2 Wall. 728, where he said: "Promptitude in the fulfilment of engagements is the life of commercial Buccess. The state of the market at bomeand abroad, the 80lvencyof houses, the rates of exchange and of freight, Bud various other circumstances which go to control the issues of profit or loss, render it more important in the enterprises of the trader than in any other business. 'fhe result of a voyage may depend upon the day the vessel arrives at her port of df8tination, and-the time of her alTival maybe controlled b,}· the day of her departure from the port whence she sailed. We cannot forget these considerations in our search for the meaning of this contract." If this was a struggle between the master and the charterers as to which should bear the loss of the delay incident to Christmas week, surely the equities were with the charterers; and tmese were not required, by considerations of mercantile good faith, to subject themselves to the v.41F.no.13-52
818
delays tn-at migb,t:8tttend theCltmbodiain the process their disa,ppointing 'efperience w'ith from tho tardiness of her arrival at lIaJ:llptoD J;tQli,ps. ," ,As to the at w,pich the, of readiness to load ,were given :by the say anything. Clearly, the notice of tpe ,22d DecemberJ given after 12 o'clock; was invalid. I am jncnped).othink, however, that thetelegrapbic notice given on the IllQrJ?jugof .tbe,24th"received before,12, M., in time,.'and would have been valid if the vessel had in fact been ready for cargo. Clearly, 12 M. the letter Monday,wasn()t in timEt. " :Xhl¥ll:! of tiIlle of notice, however, 'are, in the case at bar, altogether immatElrial., .Theship,was never ready to receive cargo. She had not the requisite 100 tons of ballast either on board or at hand. Even Hahe' had'th8' option to use coal as' ballast, she had not tbatquantity of c08Jplac,ed 'sftin, the No.3 deck. ,Nor was she on tp.e tbevoyaga 'to' an(l pOlddnot have proceeded 'tbeneedirect " Mqreover, she, had coal in themaill, whichwas,tberefore, not cleared for cargo, etc.· and to which', to the,tertns and spirit ortha charter-party, the had 8 right foJ' cotton. On the whole case, I willsigua decree dismissihgthe'libel,
0'£ coaling, .
risk of the
THlll, LEONARD 1UERNAN , i:: " , :.';
RlCRARDS. 'If ' : ' .' ",' "
etal. ",.THE 'LtONARD
(Dl.BtrI.ct 'Oourt,D. New JtIf'8GY; January 80,1890;)
.
I.
The real value of the vessel in fault,'witltout regard to,l1enill1pbnlier at the'termin,"lon of hel'voyage, upon which,$ht;l complained ofl measures the value of the interest of the owner, wlthmtne meanIng of the lImitedlill.bility' act; which provides that the liability of a vesselfbr any loss, damage/ or injury 1>1, eoUi,sion, done without t,he,p,&'iVity or knowledge; of tP.e owner,' "shall in no case exceed the amount or value of the interest of sucll owner in such vessel ' 'and her freight,then pending. " SAME-COSTS.
LIABILITY
b;r OWNElI.'
,
Where distin.ct are raised as to t4e right of the owner, of theof{endillgves"sel to the bene:llt'of the limited liabilitY. a'<It,' and also as to the't'aultOfthe vessel, upon the first of Which only the owner is successful, he will be allowed such costs only as accrued ,on that issue. AdmJralw:rule 55, which provides for the payment , of, claims out ,of the fund in court, after the costs and expenses are first deduqted, applies 'only when the owner doesnot"eontest the liability of the 'vessel for the 'alleged wrong; " ", of a material-man to bring 'll.nlJotion in personam ,against the owner of the owner is in,a position to invoke the limited liability act, and hence he will nofoe enjoined from prosecuting 8uchaction. The ' ,
, , ' "
·8,SJ.ME-RIGHT8 'Oil' :M:ATJiRIAL-MEN.
"a vessel IS not taken away by the fact
:,In,AdlIliralty:. 'Qn decree.; E.p. McOarthy, for, the 'Leonard Riphards. Owen, Gray &8turges, for the Quickstep. WaWs, Edwq.rd8& Bumsted, for, COIllmunipaw Coal Co.