FEDERAL BEFOBTER.

r;;

Wn'IPPLE

"

PACKET CO.

(Di8trict

Oourt.S. D. Miln,s:imJi.lVo D. January Term, 1888.)

1.

Libelant. the owner of a river steamer at Louisville. Kentucky, contracted with respondents that the master of the steamer should take her to Vicksburg. Mississippi, and emplo'y her in respondents' service upon the Yazoo river for five. months, guarantyIng that,the.. should have the necessary under· inspected at Louisville, , writefs' certificate as to her seaworthiness.,. She , and Q; c\ltdficate frOD1the secretary of th,e underwriters, btit, upon a SUbsalt,tient: ,inspection. d,urin g h,e, tS6,,rvi,ce. the certificate was With,drawn. ,T:Q.p W!listel"charged till! undefwriterS with fraud, threatened suit agILinst the1X!:. s,ettled up ;with resppndcllts. t90k possession of the vessel, and respond,'etIte declared the contract at 'an end; Held that, under all the circumstances. the ,guaranty must be construed, as a continuing one, not limited to the time the went into respondent's employment. , , Respondents. In a suit for daU}ages for breach of charter-party, filed a crosslibel fodfamages for false representations; It appeared that before the com:mencement' of the suit the master of the vessel had 1lettled wirth respondents; givingtheIJI a receipt and acquittan,ce for U}oneys due, :frqm them, ';lnd had, taken possession of the vessel. Held,that the settlement was conclUSive, and the cross'libel should be dismissed," ' '
DrSCHARGE-]jJFFlllCT,

BmPPINa-'-.-CBABTER,PARTy-BSA.WORTHINEBS-CONTINUING GUARANTY.

2. RELEASE,

,

In and cross-libel ,: '" " Lee &: McKee;' for libelant. Miller, Smith .," &:Hir'sh, ,'for respondents. . '
-,

-

"

Tqis case is submitte4 uppo.1ibel. all'swer, and cfoss-libei,' an/>wer, 'fhe libel, in substance, charges that the libelant ,on the 9th day of was the owpar, Af ,the steamer, Ed, lfpster, ,and by.J. W. )Vhipple.,the: lIlaster of said steaUll:lr, entered POI;ltTl;\ct in the deffiJnqapt iq; the of which said J,W. nature of agreed, as said ,steamer, t9 take he.r to Vicksburg, Mississ\ppi, ,andemploy he!, iI,lthe service otthe for a period ,of five mon,ths j the service of said master ,said vessel the defenp.ant company ",aliltq paythell1:1W of$225 of each plOnth" and would slap the expense of., transporting said vessel from ville, Kentucky,; to Vicksburg, Mississippi. ,Thapll, fulfillment of said .·:-c;-said mal:lter did transport saidvessel written where she waS,pl:lt into the Yazoo and ,so re,the .26th day of pctqber, 1887, \Yhe» ,the defendant corndeclineq.to use her any longer under sai,d and clared end" aIt,hough libelant. had" 011 part" perfQrmedall the obligations on her u,nder contract. That ,the for libelant, ,the of said contract, l;Ipon the par,t,o("s:ti,d defenqan;t company,' who absolutely refuse,d to com,ply part.pf llajd ,contract, alleging that libelant had forfei t;ed the satre.; by of an, ;alleged breach thereof by Iibelaut of'!Ii guaranty in touchingtheb9at's ul,lder;writers' papers.

WHIPPLE V.],lISSISSJPPI & YAZOO PACKET CO.

55

alleges that she did have said boat inspected, and obtained a <lertificate of her seaworthiness, and obtained from the secretary of the 'underwriters a certificate in proper form; that said certificate remained 'suspended in the cabin of said boat until taken down by one of the retipondents, and returned to the underwriters, who had unjustly and wantonly, without the act, procurement, or fault of libelant or sail,i mas'ter, or without any just or eufficient cause whatever, revoked the said <lertificate; that said steamer was inspected by the United States inspectors of hulls and boilers at Louisville, and reeeived their certifi'cate and license for the ensuing year, which said steamer still carries; that by 1'ea80n of the facts stated she has fulfilled and performed her guaranty as aforesaid. The libelant, by her .libel, claims a. decree for the balance of charter-party money agreed to be paid, also· for money alleged tahave been paid Out by the master for services by the crew, ,and for other ex·penses of the steamer. The answer of the respondents, which is made a cross-libel, admits the cOI)tract, or charter-party, as. alleged; .but, in ,. substance, sets up as a defense to the prayer'of li\:lelant that,upoh' an inspection made bya duly-authorized inspector of'the underwritei-s, said .bOat was; declared unseaworthy, a,nd said underwriters' certificute' was . withdrawn without. any on their part, and by of which said 'boat could' no longer be used bythem for the. purpose for which she was chartered,lts no insurance could be had on the freight transported upon her, and by means of which said guaranty was broken and foneited, and were released froW said Respondents; 'br' their answer, further aver thtttafter said certificate of said underwriters was withdrirwn, finnfsettlement'was made betweensa_dniaster; aQtiilg for libelant, and respondents, by which all underaaid contriLOt were adjusted and settled, and full payment was made to said master, and fot which he executed a receipt, signed by said J.W.Whipple, 'as master Of said furthersetup, 'of defense, and.asacross-hbel, that as an mducement to respondents to make said con.tract, said J. W. Whipple, acting for libelant, falselyrepreseli.t¢d 'to respondents that he' had then recently had repairs put upon. said eteamer, costing $1,800; that she only drf1w light draught, 16 inches, and had on her it first-class steam capstan; that said steamer was chartered by them for the purpose of being employed in the Yazoo river ttade in low water, ''''hich was well known to said master, that libelant had not expended anything like the sum of $1,800 in the repair of said steamer; that her light draught was 20! inches instead of 16, as stated by said mase tel', and that said capstan was notfirst class, but was of inferior quality : and 'unfit for thepurpQses intended; that by reason of said' false, and frlttldulenttepresentations said steamer 'was wholly worthless to respondents, and that by reason of the amount they expended in' paymeIl:t of ; of the ch,,;\rter contract for payment of theciew, and other expenses 'of'said steamer, they have suffered damages to the amoun.t of $1,000. 75, 'for which 'srirri theyclaiinadecree against Ba:id steamer, with a lien upon her, her tackle, furniture, etc. The to the de'riies the breach df the warranty as alleged,' denies that there was'a final

FEDERAL REPORTER.

settlement of the matters arising out of the contract as aIleged, also denies the fraudulent statements a,s charged, l;mt admits that the master did state that. her light draught was 16 inches, and that he did state that her capstan was first-class.a,nd avers that said statements were true. Quite a number of witnesses have testified as to the statfJments made by J. W. Whipple, and as to the dranght of the boat, and as to the capstan, but, as there are two other poilitswhich mU$t be decisive of the rights and liabilities of the respective parties, need not be considered. The first which,ought to be put upon the ofguar:is as to the anty. WhUe there' may ,be SOqle unGertainty as to the intention of the upon the face contract, when the relatiou, of the .parties parties and'the action which' they ,took in relation to it is considered, I do not find Inuch,difficulty,inarriving at that intention and, understanding,and \fhat thl1t was constructiqn o(this as well as all , other written,contracts Seconaly. It ,the part ofliJ;lelant that the guaranty was only to extend to the tllnetlle vessel w,ent into the employment ofthe respondents, and upon the part of respondents that itwas to continue un,By the of the contract til the end, of the Wllipple, the son of the libelant, and the master ofthe boat, was to continue in cOI)lmand of her; the 'service was, to be a joint one of Capt. WhipplelilJ;ld the boat. ThecQQtract upon the part of Mrs. Whipple, the' o;wner, was that she guarantied1th'at the bOl1-t should have the necessary UJ,lderwriters', ce,rtificate or papers to enable the respondents to obtain insurance freight When the inspector declared ,her unseaw?rthy, and crossed her,as it is called, and withdrew the certificate, Cll.pf. Whipple, who made the contract, and knew its meaning, charged that the action qf thel,1uderwriters' and the, inspector was a gross fraud upon the rights of libelant; that he wouldsu,e them for damages; and that he would have the vessel reinstated. Had it not been the unclaim for damages derstanding that the guaranty 'Yas'to to respondents instead of to ,libelant. Then, upon would the withdraw,al of the certificate and underwriters' papers, he settled up ,with respondents and gave a receipt and acquittance up to that date,and ,took possession of the boat, as, Iu:nderstand it from all the evidence, for the owner, a,nd not for the respondents, who then declared that they could ,not use her for the want of the papers, which had ,been withdrawn, and the contract at an end. From all these circumstances I am of the, parties was that this gu,aranty satisfied should .continue to the end of the service, and that ,by the withdra,.wal ;'of the underwriterll' papers, the, guarlinty was broken and forfeited, a,nd 'the respolldentsreleased from.it, /Ul"no immediate steps were by libelant t<;> have the proper undenvriters' papers restored. , " t am, sati$fied, from all the proof, ,that the between ,Ca;pt. Whipple1;lnd'the; must be held ,a8 final and cOllclutpall the claims set up 1U the .cross-libel, and estoP13 the, respondentS'from the relief prayed for in the cross-libel., , ,,', " both the libel and cross-libel must be dismissed, The result is

THE nmECTOR.

57

and that libelant will be decreed to pay the costs, except the costs of summoning and the attendance of the witneSses, the testimony,except that of the parties themselves, being upon an immaterial issue.

THE

BALFOUR

DmECToR.

'V. THE DmEcTOR.

et al.

(District OO'Urt, D. O1'egon. Febluary 18, 1888.)

1.

SHIPPING-CHARTER-PARTy-SEAWORTIDNESS.

There is an implied warranty of seaworthiness or fitness for the contero, plated voyage in every charter-party or contract of affreightment on the part of the ship·owner, and this is a condition precedent to perform.ance by the shipper. 1 .

2.

SAME.

The libelants chartered the Director to carry, a cargo of whllat from land to Europ'e, and, when she was loaded, she commenced, from inherent weaknesll. to leak. so that her cargo had to be Held. that the vessel not being seaworthy at the date of the charter and the delivery of the cargo. there was a failure on the part of the ship-owner to perform the condition precedent of the contract. and the shilJper was absolved 'therefrom. and was entitled to recover possession of his 'wheat, and such damages.as hEil may have sustained bv reason of such failure. Assuming that the' proceeds of the sale of the are not sufficient to satisfy the demand of the libelants and those of the intervenors. the dore who unloaded the cargo, having a lien on. bo1;llcargo and services. is entitled to be first paid; the claim fortowage up the river toPort· land. and the claim of the libelants for damages for breach of the contract. are to be paid pro rata., the costs incurred by the libelants in arr.eStingand keeping- the vessel to be first paid in full; the carpenter who recalked and cQppered the vessel after the cargo was removed from her. his labor and material being of no benefit to the prior lienors. must be paid last. In a suit in admiralty for the possession of personal property, where the Bame is taken on process issued on the application of the libelants. the same should be delivered to them; and. therefore. if they procure the arrest of the property and leave it in the custody of the marshal. they cannot recover the cost and expense of such custody, either as damages or COitS.

8.

MARITIME LIENS-SALE OF VESSEL-ORDER OF PAYMENT.

4.

ADMIRALTy"':"REPLEVIN-COSTS.

(SllllabUB by the Oourt.)

.

1 Under the usual covenants of a charter-party, that the vessel is "tight, 'stanch, and strong, " the owners are answerable for latent .as well as visible defects whereby the cargo is damaged. Hubert v. Recknagel, 13 Fed. Rep. 912; The Rover, 33 Fed. Rep. 515. The terms "tightl and every way fitted for the voyage, "include an implied warranty or the seaworthmess of the vessel at the time she sails. for the par. ticular in respect to the cargo laden on board. Sumner v. Caswell, 20 Fed. Rep. 249; The vesta, 6 Fed. Rep. 532. The lawpl8ces on the owner of the vessel the obligations' of a warrantor. The charter-party declaring that the vessel was in good order and condition, the. prE;lsumption is in favor of seaworthiness. McCann v. Conery, 11 Fed. Rep. 747; Pyman v. Von Bingen, II Fed. Rep. 802. . . . . The stoppage of a steamer for five hours at a port not out of her course, for the purpose of taking in a small additional quantity of coal,is not a violation of a provision of the charter-party representing that the steamer was in every way fitted for the voyage. Von Lingen: v. Davidson, 1 Fed; 178. ,\ .