CHAMBERLAIN V.PETTIT.

109

entirely clear. The respondents' witnesses disagree respecting it. Mr. Shannon, who is probably most competent to form a just estimate, says, "100 tons could have been loaded easily." The vessel, as he tsays, was especially adapted to speedy loading of such cargo. Before the error was dicovered the loading was at the rate of about 140 tons per day. The work continued, however, for 11 hours while the customary hours of working are but 10. It was understood that the libelant was anxious to get away, and there was something probably more than customary speed shown, aside from the gain obtained by working the extra hour. I balieve it is safe to say that with the dispatch required by the charter 125 tons per day should have been loaded; and I do not think it safe to place the rate higher. At this estimate 6 days would have been requiredto load the 725 tons carried. To this must be added one day for the Sunday which intervened. ' I think half a day should also be added for the time it rained on Friday, when, according to custom, the men would not work. Mr. Shannon speaks of rain on the preceding day also, but it is manifest, I think, that he is speaking of the night of the 10th. Other parts of his testimony seem to show this, and that the day WI,l.S not wet. Sevan and a half days, therefore, should be allowed fodoading. The vessel was detained until the night of the 21st of the month, covering a period of 13 days. Taking H from this leaves ai, which represents the loss of the time to which the vessel was subjepted, and for which it should bepaid-at the rate provided by the This will give him $302.50. A decree may be entered {or this sum, with costs.

(Di8trWt

1.

oourt. E. D. Penn8y1Jvan'fa.

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January 111, 1892.)

SlIJPPING-CHARTER-PAR'l'Y.

A of a to carry a certain named cargo, drawn In formal terms and without conditions, will not be construed as a mere memorandum, not binding on the parties, where there is nothing to warrant a belief that the ship's representa.tive understood that he wa.s to be affected by the charterer's failure to get the cargo named in the charter. ' A meIf1ber of a. firm of ship-brokers ha.vlng chartered a vessel to carry a certain kind of cargo, and being unable to furnish the cargo, his firm rechartered the vessel for 8 cargo of a different character,' paying also to the ship a sum, In addition to the freight named ill. the second charter. Held, as none of these circumstances show that the master agreed that the second charter should replace the first, he was 'entitled to recover dama.ges if the vessel was delayed or the freight or the Second cargo of leas tj:lan the first.
' ,

9.

SAME-'D..lMAGES POR BREACH.

In Admiralty. Libel in personam by Joab Chamberlain, plli$terand part owner of the schooner V",nderherschen, Charles A. Pettit, Frank D. Pettit, and Robert F. trading as Charles'A; Pettit &
J Reported'

by Mark Wilks Collet, Esq., of the Philadelphia 'bal

11Q

FEPEB4LREPORTER "vol. 49.

CO." to recover damages for: breach of contract to furnish Rcertain cargo for said schooner. Order (or commiss,icmer to assess damages, if same not mtlttlallyagreed on by AifrcdDriver and J. Warren Coulston, for libelant, cites, as to what 'constitutes a charter-party, The Tribune, 3 Sum. 144. Henry R. Edmonds, for respondent.
BUTJ,.ER, DIstrict Judgt'. In August, 1890, Charles A. Pettit chartered the schponer Vanderherschen to carry a cargo of lumber from Charleston to Philadelphia, on the terms stated in the written charter, then signed. Soon thereafter, the charterer informed the libelant that he could not furHe however. as a mem ber nish th,e cargo, and would not need the of the firm of Charles A. Pettit & Co., ship-brokers, (on whose account, it would the charter was taken,) procured a cargo ofrailroad ties fromQ,ther parties. After the cargo was carried, and the freight on it collectecl. the libelant brought suit, to recover he says he sustained from the respondent's failure to comply with his contract. is twofold: JilirBt, that the charter was intended as a meIPorandumsimplyand that the parties were not to be bound by it; that the cargo of tit'-8 carried under charter with others which tbe respondent's firm for the vessel, was substih;lted for the lumber, which therespongent undertook to furnish, and the respondent relieve,d from all his contract. W'hate\'jlr to support th El first proposition. There I d911()tJin<,l is no doubt that the respondent contemplated a transfer of the charter, or of his rights under it, to parties in Wilmington, (with whom he wag in correspondence;) and it is probable the libelant was aware of this; but tht're is nothing to warraut a belief that the libelant understood that he was to be affected by any disappointment the respondent might be subjected to in his these pat:ties. The charter was Jormal in all its terms and without'conditions. If it'was not intended to bind the parties absolutely I ,it!}Vould not have bef'n so drawn. A few lines would have expressed the conditional understanding which the respondent the parties had arrived at; and if. no more had beenintellded it is reasonable to suppose an informal Jilemorandulll would have been made, e:xpressing this" anrl nothing 'else. / Nor do I find anything to support the second proposition, except in the of Robert F. Smith, who was a member of the firm of Charles A. Pettit & Co. If his statement that the charter (in sUit) was destroyed in his presencelUld with the assent of the libelant, was uncontradicted, or so corroborated that it could be accepted true, it would suswin this ,branch of the defense. It seems reasonably certain, however, tqat the witness is mistaken. The respondent himsAlf testifies that he, personally, destJ70yed the charter, (beHeving it to be of no further value;) he does 06t rebollect tnelibelant beini(present, and does not suggest or pretend that be wasnware of1the intention to destroy it. lt is plain from his testimony that he did not ask the libelant's aesent; and that the libelaqt Wlls unaware of h,is act, until told of it subsequently.
,', '-',' · · I ..

THE

'

111

The libelant contradicts M,r. Smithflatly, by: saying thatne knew' nothing of the destruction of the paiper.'until told of it, when he desired to see it qr have a. copy. It seems plain that Mr. Smith is mistaken. ,; which tends to support this branch There is nothing else,as bEifbre of the defense. The respondent 'rl.ltty have suppbsed at the time, that the second' charter was to take tl1epJace of the first, as his testimony indicates',but th"'reis nothing which tends to show that the libelant agreed that it should, or that he'did not expect to hold the respondent to his (;ontracKThe circumstance that Pettit & Co. paid a small sum in addition to the amouilt which the second charter nanied as freight, to induce on the the libelant to take this: cargo, does'not seem to have question" Therespondeht was interested in procuring a cargo for the 'Vessel find' bad an inducement io make the sacrifice involved in this payment;-independently of a settletnentwith the libelant. The of thiscitrgo necessarily reduced' the damages which might result from the procurement his failure to comply witnhis contract; of this charter entitled hisfitm tocommissiol16 several times greater than the SUrti paid. . I wilhibt considertheqnestionofdamages.1t is possible noneW'ere sustained. If the second t cl1arterwasas valuable as the first, so that the libelllIitiD'iade as much' under it as be would have made under, the first, and suffered no'detentlon,he cannot oomplain. I will submit this q,uestion to:a:/ilommissioner, t(i£: the do, 'not agree· respecting' it,) ·and willbilSe the decree <>D hisl'eportj after it has been approved. .' ,-. .
I, '," ., . ' . · "

:':

THE MAHARA.JAH.

ENNIS:V. TH£ MAHARAJAH tfal.

';,

lC,rcuft Court of Appeals, 'Secon!l Circmtt. Deceniber 14, 1891.
'

in the employ llstevedqre inl.ol!-ding,a c!'rgo, was ,asslg,?ed to worl{!io'winch belong-mgtothe ship. In,'so domg, hIS hand slIpped from tbe handle of the. crank-bar of the which, and wa,s 'iJaugl;lt an4 orUS!led intbe cogs. 'l:pe winch was of an old pattA;lrn,witb.,unguarded cogs' but a person using it could prOtect hImself from such an InjUry as occurred to libelant by a'simple expedient', which libelant neg-Iected. Libelant was aware of the dangers of tbe winch, but used it without complaint for several bours. Held, that be was not entitled to recover damages from the steam-ship for the injury received.

FOR PnSOl'l'AL 1N1UBt:E$. .,..

0'

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.

; " .' . .

.'

Appeal from the Circnit Conrt of the United States for the Southern District of New York. In Admiralty. Libel by George Ennis against the steam-ship Maharajah for personal injuries. Libel dismissed. See 40 Fed. Rep. 784. Affirmed 011 appeal to the circuit court. Libelant appeals. Affirmeu. Robert D. Benedict, for appellant.