THE HARRINGER. THE HARBINGER. l BROWN v. GILL & FISHER, Limited.
(District Court, E. D. Pen'1't8'l/Zvania. May 10, 1892.)

941

1.

CHARTER PARTY-CONSTRUCTION-"CONVENIENT SPEED."

A charter party made November 5th with a ship at Charleston, S. C., actively engaged in trading, by which she was required to proceed to Philadelphia with all convenient speed, and to be in readiness for cargo after December 31st, with the privilege to the shippers to cancel tlie charter if she "shall not be ready on or before the 31st of January" following, Is complied with if the ship be in readiness by January 31st, although she undertake another voyage, and puts in for ordinary repairs in the interval. The tender of a' ship to a 'charterer on the Monday following- the Sunday which would be, by the terms of the charter party, the last day for such tender, is in time, in the absence of some controlling custom of the port to the contrary. There is no custom of the port of Philadelphia requiring that, wbere the last day that a sMp could be in readiness falls on Sunday, she should present herself on ,the previous Saturday. A custom is not shown to be established at the port, where the testimony of the witnesses who aver that the custom exists is met by an almost equal number of witnesses with equal facilities of knowing, whO testify to never having heard of such custom.

2.

SA.ME-REA.DINESS FOR CARGO-SUNDAY.

8.

CUSTOM OF PORT.

4. SAME-EvIDENCE.

In Admiralty. Libel by John L. Brown, owner of the steamship Harbinger, against Gill & Fisher, limited, to recover for breach of'contract of charter party. Decree for libelant. Flanders c!c Pugh, for libelant. Richard C. McMurtf'ie, for respondents. BUTLER, District Judge. The respondents chartered the British ship Harbinger on November 5, 1891, to carry a cargo of grain from Philadelphia to Cork, for orders, at the rate of four shillings and nine pence a quarter. The charter contains the provisions usual in such instruments. Fifteen lay days are allowed for loading,-not to commence running before the 1st of January, 1892. It is stipulated that the ship shall proceed "with all convenient speed to Philadelphia," and load; and that if she "shall not be ready to load on or before the 31st" of that month the charterers may refuse her. Shewas at Charleston when chartered, and on the 23d of November, after l'oading a cargo of cotton, started for Bremerhaven, where she arrived about the 1.7th of December. Seven days thereafter, having discharged the cotton, she went to the river Tyne, England, for repairs, (required by usual wear,) reaching there in two days, and remaining ten or twelve, until the work was done. She then stal'ted for Philadelphia, getting here 011 the 31st of January, which was Sunday. She found the customhouse closed, and was unable to secure the usual certificates of readtness for cargo, on that day; but she nevertheless tendered her1 Reported

by Mark Wilks Collet, Esq., of the Philadelphia bar.

942
j.; ,

FEDERAL

,vol. 50.

self to the respondents in the afternoon. Next morning she entered, procured the certificates an4again tendered herself; but was refused, and notified that the charfer was canceled. twpfold:, Firat, that the, failed to ob'l'he defense urif(ll' serve the stipulaTIon to proceed with all convenient speed to Philadelphia; and, second, ,that the ship w:asnot ready to load on or before the 31st of January. the first point; it IS necessary to ascertain what duty (ill,this respect) thE! imposed. In, ascertaining this the clause referred te,mustnot be detacl,1,edand read alone, but the entire charter taken; in the light of surrounding, circumstances. While it isproYicled ship being, tight, and having liberty to take an outward cargo for the owner's benefit, ,shall "pro(#d'with all conventQPhiladelphia * * * and there load," it is clear that ient this langullgEl does notexpress the intention of the parties. The Clirgo was riot to be ready until nearly tw:o months there8S we have to commence before the 1st 6f,'hmria'ty, 1892. If therefore she was to proceed directly" with all convenient speed to Philadelphia" she must lie there in idleness for six Of course the parties did hot ir,tend this.' What then did tneyJiitlmd?,;,ShewRs'at Charleston, and, as the charter states, was engagf'd in "trading." She was to carry a cargo of grain from Philadelphia not earlier than the 1st of Jan,uar.y apd not l&ter than t e last. In other Wbfds, she' was cHattered fora Jabuary shipment, from that port. She·was 'tiotrequired' therefore" to proceed with' all convenient speed" directly from Charleston to 'Philadelphia. Itwascol1t(jnJplated that she would continue trading elsewhere, during'the months of November and Decembpr, and then proceed to Philadelphia with "'all convenient speed" conte ll1 plated. The,contract was made conilistent.w,iththe fdrhpr bel1eflt as well as 'Iorthe During the intervening cargo aA ean be obtained. She cannot lllust accept such as offer.. 1f these carry her so Jar clff'that she cunnot, rE-ach Philadelphia tintillate inJanuary the Gannotcol1,1.plajn. not reach there uutil the til11e stipUlated for loa(lhlg has passed,she forfeits her charter. Such, is hlterpre,tation of the contract. in my In t'iew' of the lihMitht's obligations,. the, first point of the defense fails. AstJe ha"e seep':t:heship {boIt cotton' abroad lronl Charleston; as could be expected. She was delayl'd lor 'She was not blain'a'ble for taking the that anJ: delaY,In loadIng, or un1oa,hng, 10 makmgthe repatrs, or In gOIng or retUrIiirlg., .poubtless shecouJd C\\'ith eRort) have made greater spped; htihhe charter required "conveni4iJnt speed'"' only, and this she .. It is' inquire,irdhis view of the facts, whether the stipu1atidh rpspeeting speed, actmdition precedent. . Tbeii'its"respects the seMrid point;"':"'was she ready to load within the time specified? ,eflect on Sunday need not be consid>

.". '. ·· ...HE HARBINGER.

,.),

Her readiness next morning is admitted; and it is indisputable that this was in time, according tcfthe general rule of law applicable to such cases. Campbell v. Society, 4 Bosw. 298; Salter v. Burt, 20 Wend. 205; Avery v.·Ste:wa1't, 2' Conn. 6-9; Chaffee v. Railroad COl, 146 Mass. 224, [16 N. E. Rep. 34.] The 31st being dies non she was entitled to Monday; unlessthe custom oUhis port required her to be ready on the preceding Saturday. There is no room to doubt that the existence of such a custom would control the the parties wouldbe:regardedas dealing with it in mind, and be required to conform to it. But to exercise such an 'influence the custom must be uniform and so long continued as to be notorious. As said in Coxe v. Hei.JJley, 19 Pa. S1. 247, a local usage if it be ancient, uniform, notorious and reasonable; may enter into and becomepart oLa contrll.ct which is to. be executed at the place where the usage prevails. II AU these elements are essential constituents of a binding custom. The respondents set up such a custom, respecting shipments at this port; and have produced some evidence on the subject. The evidence is insufficient, however, to sustain their position. Nearly an equal ri\1mber of witnesses, with equal opportunities of knowledge, are produced on, the po such custom they heard of it.,' On both ,sid,elil the witnesses are men of high character, and of credit. They testify according to their respective understandings. It appears thatthe Commercial Exchange of Philadelphia .hal\ provided by rule (which binds its members only) for the performance of mercantile 'contracts on Saturday when the time named therein for performance occurs on Sunday; and in consequence a partiall1&age of this nature, respecting such contracts, exists. This may have to the understanding stated by the respondents' witnesses. It is clear, however, that the custom, setup respecting shipments at this port, is not proved. It is incredible that a uniform, long-established, notorious custom,-of which every one dealing here in respect to such shipments is presumed, to have knowledge, and is consequently bound by,-should .exist, and the libelant's witnesses,""7shippers, ship brokers, and others, be of it. !tis that the respondents (who fl'OIn their experience as shippers should have' known of the custom if it exists) Jwd never heard of it· this suit was brought,.for instead. of setting it up in their answer, the defense there stated, res.tson different grounds. rhe answer,indeed,substantially admits that the tender on Sunday would have been in time if it had been accompanied by the usual certificates of readiness. The lil:>el ill sustained and a decree may be prepared accordingly.

ftDEB.U. BEPOBTER,VoL

60.

THE Now

BDBESHOJT MANUF'a

THO.

Co. ". TaB Now T:RD.

(DiBtrI.ct Oourt, D. DewwaT& Juue 2, 181la.)

No. 427.

1;

IllRITtMlll LIIIlNs-I::lUPPLIIIlS-FoRBIGN PORT-ORDIIlB OJ' OWNIIlL

When supplies are furJiished to a vessel in a foreign by order of her maste! alien is implied, but for w.ork done by order of the owner uo lieu will be held to exist unless proved by the agreement of the parties.

LSiME""-OWNBR'S CREDIT.

Oil the evidence lU this'case, held, tl!at the supplies furnished by libelant at Bristol, R. I., to the yacht Now Then, whose home port was Wilmington, Del, by order of the owner of the yacht, were lurnished· ou the personal credit Of Buoh owner, aDd not on the qre.dit 01 the yacht, and no lien was oreated thereby.
Libel dismissed.

In,Admirnlty. Libel to lien for supplies. IIen.ry Whitney Bate8, for libelant. Sa1d8bury, for
,

This is a proceeding in Mn to enforce the payment of an alleged lien against the steam yacht Now Then for pairs and ,materials made a.nd furnished to the vessel by the libelants at its Bristol, R; 1., the home port of the yacht being ton, Del. The owner of the yacht and the respondent in this case is Mrs. Rosalie B. AddicKs, who resides at Claymont, in this district. Although much other!matter has been introduced, the decisive question'ln "the case as on the pleadings and evidence is whether the repll.i'rsto the yacht were made on the credit of the vessel or on the persoDlUcredit of the owner's husballd, Mr. J. Eo Addicks. About the 26th of June, 1889, Mr. Addicks bought the yacht from the libelant for the cash price of $15,000, and by his direction the bill of sale was made to his wife,and the yacht was delivered to her at Nahant, Mass. After the delivery, and early in the following month of July, the boiler of the yacht gave out, anu the vessel was sent by Mr. Addicks to the libelant, at Bristol, with orders from him to have the necessary repairs made. When a bill for the repairs was sent to Mr. Addicks he refused to pay it, ou,the that Mr. JohnB. Herreshoff, the president of the libelant company; 'had warranted the boiler for 'one year, and that it was the duty of the company to keep it in good order for that period without additional charge. After this the libelant continued to do additional work on the 'yacht by the orders of Mr. Addicks, who punctually paid for it, with the exception of a small balance, which is included in the present claim; but he has uniformily refused to pay for the hoiler repairs. Much testimony was taken in relation to the nature of the warranty, which was claimed on one side and positively denied on the other; and also as to the condition of the yacht's boiler at the time of the sale, but, as already remarked, the controlling question here is whether the libelant has established its right to a lien. So far as concerns the present
,WALEs, District Judge.

in