THE UNIONIST.
S15
just debts, and I do notfirid that he made any question before the justice as to the right Of attachment and the application of his wages to the payment of his debts. He should have made the question before the justice, and, if decided against him, appealed the case to a higher court. He did not do this, but allowed the defendant to pay the wages due him under the order of the state court, and apply the money to the payment of his presumably just debts. It would be inequitable, under such circumstances, to require defendant to pay these wages a second time. The Oity oj New Bedjord, 20 Fed. Rep. 57. It appears from the record that proceedings were commenced before the commissioner of this court on the iiOth of January, 1891, and that the defendant had actual notice of this proceeding before the judgment was tendered by the justice of the peace on· the 5th of February. It was the duty of the defendant, under the circumstances, as well as the libelant, to bring to the attention of the state court-justice of the peace-the fact of the proceeding in admiralty. I shall not, therefore, give libelant judgment for the wages which have already been paid by defendant, and applied to libelant's just debts, but will give libelant a judgment for the costs of the admiralty proceedings; and it is so ordered.
THE MYRB8
UNIONIST. '11. THE UNIONIST.
et aZ.
(Dl8tr1.ct Court, E. D. V-£rginia. November 80, 1891..)
1.
OJullTER·PABTY-CONSTJIU0T10N-NOTICB 011' RBAD1NE88 rOB CARGO.
A charter-party provided tbat it was to go into effect tbe morning after Dotice of readiness to receive cargo, suuh notice to be given before 19 o'clock of tbepreced. tug day; tbat 14 lay-dayssbouJd be allowed, "Snndays and bolidays excepted;" and tbat tbe cbarteMr8 mlgbt cancel tbe contract if tbe ve8sel was not ready on or before Cbri8tmas day. Held that, although this latter provi8ion &eemed to make Chri8tma8 day available for the purpose of giving notIce, yet as tbe provi8ion for notice of readines8 was evidently intended to enable the charterers to get the cargo together and engage laborers for loading, a notice given on that day was inoperative, and the llly-days did not commence until the sccond dBy thereafter.
9.
SUIE-GUARANTY OB' INSURANOE-DECK CARGO-CATTLE.
A printed charter-party gave the charterer8 a rigbt to put on board a full cargo of ootton, or any lawful merchandise, u8ing all spaces where cargo was usually car. ried, and the owners guarantied first-clas8 insurance. On the margin of tbe in. 8trument was written a clause giving tbe charterers a right to 8hip cattle on the deck. Held, that the charterers could not recover freight for cattle which they would have 8hipped, but did not because insurance was not obtainable; it appears ing tl:\at insurance was refused fOl'reasons not calling in que8tion tbe ve88el'8 8eaworthlne8s, and that shippers did not usually construe the guarantrof insurance acovering deck cargo, especially cattle, unless expres8ly 80 provided.
In Admiralty. Libel by Myers & Co. against the steamer Unionist upon a charter-party. The facts fully appear in the following statement by HUGHES, J.:
316
FEDERAL REPORTER;
vol. 48.
dfhe' conceded facts of this case are as follows: On the 12th day of 1889,the owners of this steam.er, through their agents, Messrs. Simpson, Spence & Young, of New York, chartered the steamer to.ihelibelants, Myers & Co., of Norfolk. The charter, or a copy thereof, is annexed to the libel. .In the charter the steamer was designated as "trading," and it was provided that she should take on" a full and complete cargo of cotton fJ,g: other lawful merchandise," at Norfolk, Newport:News, or West Point; and carry the same to Liverpool or Bremen. The charter in its printed body provided also as follows: , "Tbeeiltire carrying capacity of the vessel, including crosS-bunkers, space nnd'er bridge.deck, lazarette, deck·houses, and other spaces where steamer has usually carried cargo, or would carry if loaded on mtes, shall be placed at disposalof charterers. exclusive of anY·!lpace which may be needed for the crew, cabin stores, and coal for the voyage; and owners guaranty not to occuPy more space for coals below than was occupied on previous voyages from United States to Europe when steamer was loaded with cotton for their benefit, and 'no goods or merchandise whatever shaH be received on board, otherwise than fromchaiterers or their agents, without their consent in writing. ... ... ... If the steamer be not sooner disputched, fourteen running days, Sundays and holidays, excepted, shall be allowed tl;1e charterers for loading, sueh days not to commence before 20th November, unless with charterers' consent. ... ... ... In case the steamer is longer detained by the charterers or their agents, demurrage shall be paid by them at the rate of. sixpence per net register ton per day for every like day detained, and it shall in all cases be settled with the captain before the steamer leaves the port of loading, and no claim shall be valid if made after that time; or, if steamer is sooner dispatched, she shall pay the charterers or their agents dispatch ,money at the rate of ten pou nds per day for each and every day so saved. ... ... ... It is agreed that this charter shall not commen,c;e until the morniQg after. the steamer is ready to receive cargo at the place of 10ading,aU-her holds being cleared and passed for grain, and customary notice thereof is given to the charterers or their agents, and such Jloticti"lnust be'givenbefdre tWelve o'clock on the day the steamer is ready; and if, upon arrival, the steamer is ready for cargo, then lay-days .morning after the 'entry is made :atthe shall Sbl>uIa''the' litMmeriiotbe ready in all tespectlsfot'cargoat her first loading pornoI' entering on this ch.a1'te1" on or before.25th December, 1889, the charterers may cancel the charter.' '.. * *, First-classillsurance is hereby guararltied :by owners of the steamer."
, '{Jp,<mthe margin of the policy this clause appeared in writing: "Charterers to have the option of shipping cattle on deck, cost of fittings to be paid by them, necessary food and attendance on cattle to be provided by steamer to supply reqUisite fresh water," etc.
The Unionist \Vas a steel steamer, built in 1888. She was a small steamer, being only 1,403 tons, but she was of the first class. After completing ,her "trading" engagements, she arrived in Hampton Roads in .,the afterlloon of December 23d, and, under telegraphic orders from the libelants, {tame that same day to Norfolk. Early in the morning of December 24th the master reported the ship ready to receive cargo, and about noon ofthesame day announced that she had entered at thecustom-house, and that her lay-days would commence on the morning of the 26th,' At 8 M. of that day the -libelants returned the notice,
317
saying that they did not "consider the Unionist ready for entering on her charter." Immediately the master asked the libelants to stltte their reasons, and announced that the vessel was ready to take in cargo at aU hatches, and that she had been entered at the He added, ship's ballast would aU be out by morning. In the morning of December 25th, at 9 A. M., the master reported that the ship was free of ballast, and all holds cleared, and that the vessel was ready to receive any description of cargo, and that lay-days would commence on December 26th. On .December 26th the master again wrote the libelants, asking for instructions as to loading berth, and laterin the day again wrote them on the, same subject. The libelants then asked for some delay to consider the subject, and finally, on December 27th, indicated a loading berth for the steamer, to which the Unionist at once proceeded. Sharp Hughe8,for libelants. Butler; .Stillman &: Hubbard, for respondents. HUGHES, J., (after stating thefact8.) The first claim of charterers is of £10 sterling; per day for two days alleged to have been saved from the 14 allowed them by the, charter for loading, which days were to commence 'on the morning after the steamer's readiness to receive cargo. The notice of readiness was given on the 25th December, a general holiday; and the contention of libelants is that, this being dies non, the legal day of, readineSs was the 26th December; that the loading days did not commence until the 27th; that hence they had, excluding Sundays and holidays, ,until the evening of the 13th January for the loading; and that,inasmuchae this was completed on the evening of the 11th Jamtary;,they are entitled to dispatch money for .two days. The respondentcontendf'hthat,although the charter provides that loading need not be \done on h<illid-ays,yet it contains no, provision that notices may not be .gjvelil on:hoUdays. ,( further, tlIat, inasmuch 'as the charter provides that, "should the steamer not be ready for cargo on or pefore the 25th December, 1889, the charterers may cancel the charter," this instrument itself made the 25th December an operative day for the purpose of the notice. There is undoubtedly some force in this latter contention; but it must be considered that the object of giving charterers one day to begin the loading of the vessel after notice of readiness is received is to afford them time to get their cargo together, and to engage laborers to do the work of loading. Respondent's contention becomes inadmissible in the present case. Of all days in the year, Christmas is the one in which a charterer would be most unable to make preparation for loading a ship on the day following. The reason of the rule giving II day for preparation applies, therefore, more imperatively in the present than in other cases, and I think the libelants are entitled to two days of dispatch money. The other claim of libelants is for £273. 15s. as an amount that would have accrued to them as freight on a hundred head of cattle which the charter gave them an option to ship, but which they were unable to
318
FEDERAL REPORTER,
hecause oftheir inability to'obtain the first-class insurance on'cat:tle:wbicb ;they claim was guarantied to them bya clause of the charter. itself is in . printed sheet,gotten up and· used by the cHarterers ;in their business in Norfolk. : This printed formula oontemplatesiandprovides for. onJy such cargo 8s:is carried in the spaces and this printed sheet of the ship where. she "has uBusJly:<mrried E}mbraces a clauSe ioprint providing that "first-class insurance is guarantied by owners of the steamer.?' .Cattle cannQtbe shipped in the llspaces where the steamer has usuailly carried ClU'go;" They can be put nowhere except On deck, on which sheds of wood haveto be constructed for their comfort and safety. .On a margin of the copy of the printed formula which became the contraot' between charterers and ship-owners in this case, there was-written with pen and ink a clause giving charterers the option of shipping cattle on deck, under conditions which need not be recited. It is proved that several insurance companies in the United States and Canada were applied to jor policies on cattle to be shipped by charterers OIl this ship on this voyage in the depth of winwhich did not bring inquea.ter, and that all of them refused for tion the seaworthiness of the steamer or allege any distrust'of heron any ground. The testimony also shows that shippers and experts in such matters do not regard the usual guaranty of firSt-class insurance embodied in charter-parties as including deck cargo, especially cattle, unless express language is employed to that effect. It is evident to me from the proofs in this easel and the circumstances under which this contract was made, that the minds of the parties to it did not meet· in respect to insurance of a deck cargo of cattle, and that it would be inequitable and unreasonable for the court to hold the ship-owners responsible for the failure of the charterers to obtain first-class insurance upon a deck-load of cattle for a voyage across the Atlantic ocean in mid-winter. I will sign a decree allowing two days of dispatch money to libelants, and rejecting their claim of compensation for the loss of freight on cattle which they had the option of shipping.
THE PILOT.
319
THE PILOT. UNITED STATES '/1. THE PILOT.
, (Dl.Btrlct Oourt, D. WasMngton, N. D. October 80, 1891.) lI'9BBIGN WA1BRS-ToWAGB-FoRBIGN TuG-BoATs,. ,
The boundary between the United States and Great Britain in the Strait of Juan de Fuca iilAxM by treaty ona line following the middle of the straitt the north· ern, part et:thE! strait· bein" British water, the southern, A.IJ:l.erican; out by' the same treaty the. entire strait IS free, ani! open to both countries for purposes of nav· igation. Held; that no part' of the strait is "foreign waters," within Rev. St. U. 8. li 437Q, Which excepts, from the penalty thetein denounced against foreign tugboats tow.tns United States vessels between dOlllestio ports, oases where the towbig is in whole or in part on foreign waters.
.' .
In Admiralty.
P. U.S. Atty. Burke, ShJJpard & Woods, for claimant.
On libel to enforce a'penalty.
HANFORl),J. This is a case of seizure to enforce a penalty imposed by section 4370, Rev. St. U. S. The facts are as follows: The Pilot is a British sWam-tug, engaged in the business of towing upon the Strait of Juan de Fuci!. and other waters of this state and British Columbia. The bark Valley Forge is an American enrolled vessel of 1,286 tons burden, engaged in coastwise trade; and, being bound on a voyage from San Francisco to Port Angeles, entered the strait without assistance, and was beating against a headwind towards her port and destination. The Pilot found her on the north side of the strait, and within three miles of the shore of Vancouver island, near Port San Juan, where she had sailed upon her port tack, and towed her across the strait to Port Angeles, pursuant to a contract made with her master at .the time to tow the Valley Forge first to Port Angeles; thence to Departure bay, in British Columbia, to load; and thence to sea. The Valley Forge remainen at Port Angeles while her master went to the custom-house at Port Townsend for the. purpose of exchanging her certificate ofenrolllllent for a register, to entitle her tQ clear for a foreign port, and she was afterwards towed from Port Angeles to Departure bay by a British tug, under the contract made with the of the Pilot. Section 4370, Rev. St., is the same as the twenty-first section of the act of July 18, 1866, entitled "An act to prevent smuggling, and for other purposes." 14 St. at Large, 183, as amended by the act of 1867, found on page 410 of the same volume. It reads as follows: "Sec. 4S70;All'.steam tug-boats, not of the United States, found employed iJl towing d,OCUIJlenteli vessels of the United States plying from one port or place in tb6Sl'me to another, Ell1aU be liable to a penalty of fifty cents per ton on the measurement of every such vessel so towed by them respectively, which sum may be recovered byway of or suit.. ',rhis section shall not apply to any case where the towing in whole or in part is within or upon foreign waters."