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. ,\ .

58
In Admiralty. . .

FEDERAL· REPORTER.

.. 0. E. S. Wood and John W. WhW1ey, for libelants. Prederic'k R·. Strong, for, claimant$. Robert L. McKee, for intervenors.
DEADY, J. This suit was brought by the libelants, Alexander Balfour"Stephen Williamson, Robert Balfour, Alexander Guthrie, and Robport as Balfour, Guthrie & Co., ert B. Foreman, doing against the British bark Director, her master, William D. Bogart, and 16,868 bags of wheat.: " The libel prayed for process said bark, wheat, and master, to the end that the,first pJ;ty,the damltgesof the libelants; that the second "might be delivered to the libelants," free of all charges and liens; that the master may be restrained from interfering with the. pendency of the suit; and that he and all others claimingany said may be cited to appear and answer the libel. ' , . On reading and filing the libel an order was made thereon; allowing ..a;s prayed on the' filing of a stipulafion process to by the libelants, ,in the sum Of:$;Q<l,OOO, as security to the adverse parties' for costil and damages th'erebyincurred, on which the vessel and were subsequently arrellted,anli in interest cited to appear. Thereupon the master,.filed a ,claim of ownership of said vessel on behalf of William W, Tttrnbull and others, and, on the same day, the suit, by counsel, and claimed . .: the possessioD,ofthewheat. ' The libel 3, 1885, the master of the Director chartered hEir to' the)ipelants a cargo of wheat frOm this pott to Europe, at 42s. 6d. a, tOll,statingtherein that the Stanch, strong, -and iIi 'every way fitted for such voyage;" that the;vessel was laden by the Jibelants.,and,as soon as the cargo was on bO/lrd, she commenced to leak so badly she could not proceed on 'her voyage, and the cargo was discharged. ;: On excepqonsfu the libel fOftnisjoinder of causes of action, it,WllS held-. " ' , "(1) In a suit bya 'shipper for ora contrl\Ct of affreightment, the facts which establish the liability of the master, also give ant a lien on the vessel for the amount of his claim. and, therefore, it is that the proooe4in¥ ,against the owner or master and 'the proper an.d vessel should be joined in one libel;" and "(2) when the possession of 80nal property has been changed by means in vol ving the breach of a maritime ebtitract the same, or such possession is wrongfully withheld con'trary thereto, the owner or other person entitled, mider the the possession there0f, may maintain a,sl1it in admiralty to obtain the san;l.e: 1' 'The l>irector,l1 493,26 708. .,. · , .. ;.1-'
l\

I .. . '. ...... :' -' , · ' l

An aDJ.ended libel waasubsequently filed, in which a sale of the wheat, on 1885, is alleged to have been made to Arthur Bald of Liverpool, at 36s. 9d. per 500 pouhds, including freight and insurance,

THE DIRECTOR.

59

to be shipped from this port during the month of October or November of that year by the Director, she being "a first-class wooden vessel" and fit to cnrry said cargo, and the loss of the same by reason of the inability of the Director to ,. carry the wheat as per the terins of the sale and the stipulation of the charter-party , to the'damage of the libelants $3,036. On May 31, 1887, the master and claimants answered the libel, admitting the making of the charter-party, and the loading and unloading in the libel, and allege that the master, after disof the cargo, as charging the cargo, had the Director hove down and repaired, so that she was ready to receive the wheat again before the expiration of November, and fit to crtrry the same to its "destination, as per the charter-party. In the course of the trial' the claimants offered in' evidence copies of the Bureau Veritas, or the French Lloyds, for the yeRrs 1884 and 1885, to show the character and construction of the Director, in connection with evidence tending to show that the libelants' agent at this port, ,Mr. Walter J. Burns, was familiar with these registers at and before the chartering of the Director, and was therefore chargeable with a knowledge of the facts therein stated concerning the Director. They were admitted, withoutobjectioo, fotwhatever they might prove. These registers, so far 813 the libelants are concerned, are mere hearsay, derived from local surveys and inspections made at the instance of the owners, and usuall}' in their interest. Judging from what I have seen of such surveys in this case, they are of little or no vallie as evidence of the true condition of a vessel. Underwriters, from their vocation and business, may be presumed to have a knowledge of their contents. Whart.' Ev. §§ 735, 1243. But as to others not so related to the subject, such presumption does not obtain. 1 Whart. Ev. § 639. And, so far as these libelants are concerned, they are not evidence of any fact about which there is any doubt or controversy in the case. Assuming, however, that the agent was familiar with these volumes of Veritas, the information imparted to him by them was to the effect that the Director was a first-class wooden vessel, built in 1873, in New Brunswick, principally of spruce, birch, pitch-pine, and hackmatack, with a character rated at 3 1 3, ALL, and about five years of life before her, the lastsurvoy having been made at Liverpool in 1883. And this, of course, does not tend to show, as maintained by counsel for the claimants, that the agent of the libelants must or could have known that the Director was not a first-class wooden vessel, but the contrary. Certain certificates of surve.y of the Director; made in this port, were also offered in evidence by the claimants to prove the seaworthiness of the vessel, as well as an authenticated copy of a survey purporting to have been made in Hong Kong, just prior to her departure from that port for this, Libelants objected, and they were admitted subject to the objection. ,The objection is well taken. The. certificate of the of a vessel is ex parte,-mere hearsay,-and is not evidence of the facts contained in it in favor of the person procuring it, whatever it may be when offered against him. HaU v. Insurance (b., 9 Pick. 476; Watson 'v. Inswrance (b., 2 Wash. C. C.152; Cart v. Insurance Co., Id. 375; U.

60

FEDERA.L REPORTER.

S. v. Mif;chelt, Id, 478; S",Uus v. Insurance Co., 10 Johns. 489; Abbott v. Sebor, 3 Johns. Cas.. 46; 1 Whart. Ev. § 120. Suchcertiqcate is .evidence of the fact that a survey was made, and, when a questi,onarises as to the propriety or necessity of a sale by the master of. a strnnded or injured vessel in pursuance of such a survey, it may be evidence of the f!tcts contained therein, tending to justify the action of the master. But even then it is not conclusive, and may be contradicted. Gordon v. Irwurance Co., 2 Pick. 263. In this case the proper proof.oLthe facts ascertained on the surveys of the Director is the testimony of.the surveyors. In the case of The 3 Sum.262,the sur;veyors appear to have been examined as witnesses. ;But.the certificateof the survey, dated November 25,1885, and signed by Nathaniel IngersoUand John E. Lombard, is competent qualify the testimony of .said Lombard concerning the condition of the vessel at that time, as a statement made by him out of court. The evidence on the point of unseaworthiness includes, among others, the master, the first and second mate, the carpenter, and one of the crew, The first mate, left the vessel on October 7th, and is a witness for the libelants; the 9thers remain with the ship, and testify for the claimants. A number of, ship-masters, mostly ·British, testify as to what leakage unseaworthy. Most of them seem to think a vessel will rendera is seaworthy SQlong as her pumps can keep down the leak. "Seaworthy" is doubtless a relative term, depending on the voyage and cargo. Where the cargo is, wheat, and, :the voyage from this port to Europe, around Cape Ilorn, a vessel, to ,be seaworthy, must be tight and strong, and not leak through any inherent weakness. As USl,lal, .in. this class of CaSl'13, the evidence is very conflicting. ·On a caJ:'eful consi<iJ,erAtion of it, and the, degree of credit ,to be given to the facts to be as follows:
Director isawooden.ve&Sel of679 tons register, built principally of spruce, pine at Moss Glen, New Brunswick, in 1873, and classfldin V'eritas 313 A!. 1 for six years from July, 1883, and when she was docked and remetaled. "About the middle of March, 1885, she sail-=dfrom New Castle, New South Wales, toAmof;, China. with a cargo of coal.' On May 17th she left the latter port, in for:aong Kong, from whence on June 30th she sailed for Portland with a cargo of China goods, principally rice, and reached here on September 1ILh of the same year. On the voyage to Amoy she encountered a gale off the Solomon Islands, during which/she leaked 80 that the pumps were used continuously. On the voyage from' Hong Kong to Portland the weather was'very good, except for a couple of days while in the Bashee channel, when 'there was an ordinary fresh /{ale, dnring;which the vess,el leaked not less than six inches per hour, and for rest of the vqyage. not less than thre"1. inches per hour. On her arrival at Poi·tllmd, the master l'eported to his agents that the vessel was leaking, wherinlpoh a survey was ordered, in pursuance of which, the cargo being discharged, she was first put by the head, and some small repairs made about her stern-post, and then by the stern. and similar work· done about her stern-post; and on October 1st the surveyors reported her, leak reduced to

THE DIRECTOR.

61

9-100 of· an inch per hour, and that she was" fit to carry a dry and perishable cargo to any part of.the world." On October 3d .the Director was chartered to the libelants to carry a cargo of wheat from this port to Europe, at the rate of 42s. 6d. per ton. 'rhe charter stated the vessel was "tight, stanch, strong, and every way fitted for such a voyage." And, among others, it contained the following stipulations' '.I;hat the vessel would furnish the charterers a certificate from their surveYOI' "that she is satisfactory to hilUas regards general condition, stowage, dunnage, draft of water, and ventilation;" that, should she fail to pass satisfactory survey, or be unreasonably detained in consequence of having to drydock for repairs, this charter to be void at charterer's option;" that lay days shall commence 24 hours after discharge of inward cargo, and the master reports that he is ready to receive cargo, and "ten working lay days" be allowed for loading. October 3d and 8th the vessel was loaded with wheat by libelant, the same weighing 985 long tons. The cargo was consigned to the order of libelants, and the usual bills of lading taken from the master in their own name, whereby the master admitted the receipt on board, in good condition, of 16,868, bags of wheat, to be delivered at a port in Europe in like condition. On October 8th, Nathaniel Inge:soll, surveyor for the libelants, reported that "this cargo of wheat in sacks has been properly dunnaged under my direction," apd "this vessel is properly ventilated, and is in good condition to carry a dry and perishable cargo to any port of the world." On the morning of October the 9th as the vessel was about to leave her dock and procefld to sea, it was discovered that she was leaking. and had an unusual quantity of water in her hold, when a survey was had, on the request of the master. On the'10th the surveyors, Nathaniel Ingersoll and JohnE. Lombard, reported that. she was making a little over an inch of water an hour, and advised that her cargo he partially discharged and "the upper course of copper be turned down and the Ship's top sides be thoroughly calked to the plank sheer." . In consequence of this leak and survey, the cargo was wholly discharged and placed on the and, on October 26th a contract was made with Robert McIntosh .lor the repair of the vessel, at a cost of $4,485, the same to be braced, shored, and hove down on either side so as to expose the keel, and calked, coppered, and otherwise repaired as the surveyors might direct, so as to render her seaworthy. On November 13th and 16th she was hove down, first on her starboard.and then on her port side, and stripped of her sheathing, when it was found that her seams were slack, so that you could put your hand in them; the oaku'm .was wet and sodden, coming away with the slleathing and dropping out of the seams. The keel was badly broomed and split, 35 feet by 9 inches of which was taken out at the center and replaced with Oregon fir. One butt was started on the starboard side, and, when she was hove down, the water came in under her covering boards, fore and aft, in great quantity. The vessel was recalked and the butt fastened, and brought baek to her loading berth, where her top sides were calked. On November 21st, on the request of the master, a survey was ordered, and on the 25th the surveyors last aforesaid reported that the vessel was then "tight, stanch, and in good order to carry a dry and perishable cargo to any part of the world." Ingersoll died before the testimony was taken, and Lombard testified that ,be signed the report with much hesitation, £ond that he was then satisfied that the vessel was not seaworthy, or fit to carry this cargo of wheat to Europe; and, on.N'ovember 27th, tpe master informed the JibQlants that.he was ready to relol;\d the cargo. .. . . . . , .· In the mean time the libelants on October 8th, had. sold. the cargo 'of through their Liverpool house, to Arthur Bald of.tbat place. The contract

of s8-le of th.e Walla Walla crop of 1885, and was "tobe shipped per Director, 679 T.R.,'tt first-class wooden 'vess'el,' English 8131. :1:', French If< If< If<. of'ladmg,to.be datl'd durmg October and (or) Noveml. bel', 1885, ..... ...·. attpe pnceof q6s; Bd. per 500pountls.:' .'.0)1. tbedelivlliy of .the bills IlflacUng OeJ;ober '8, '1l'3S5,'theJibelal1ts drew Q.n .for the price of Ule'cargo, appending' to thebillofe;'!:the bills Of lading .and Pl'l1illY of the cll,rgo,-the libelants being the underwriters,-:::Md negotiated the same with the bank of British Columbia,'jnthis city. A'ftar leArning the condition of the vessel, and the unlading .ot the cargo, Mr.BlUd repudiated the sale because of the breach of the ..condition'precederit .tnereeO-:-that the Directot' was seaworthy. .This determination following, as it did; aD 'SOme correspondence between the parties,was made known to the Liverpool house on October 2Bth, and by them tothe,Portland branch early in the bills of lading being remailed to the latter on November 14th. .. , . On November 7th the Portland agent of the libelants wrote to the master, 'statingthat he held him, hill vessel, and his owners liable for all losses suson the cargo of wheat, on the ground of a breach of the warranty con1ti:\lned in the charter, that the Director was seaworthy. ..' Between October 9th date of this notice there Was correspondence 1s agents, Messrs. Taylor, and conversation between the libelants and the ship Young & Co., as to the. tights anI! obligations of the parties to the tion,-:-the former claiming the re.turn of the wheat fre.e and clf'ar of all liens While was' willing to cancel tire charter-party if the libelants'would bear the expense incident to the unlading and rescission of the coIitract. ' . . Thevarties were unable to agree, 'and the master insisted on holding the cargo, and therE:upon this suit was commenced, on November 23d. to obtain possession of the. wheat and damages for the failure to'perform the contract of affre.ightIPent, in which the vesselwas arrested on :N'ovember 25th, and the. wheat qn Novem.ber 2Bth.. . following persons intervened for their intere.sts. and exhibitedlibelli! il)'the cause: . Robert McIntosh, ship carpenter,on Jalluary16, 181'36, against the vessel, for the sum of $4,537 for materials and labor expended in the repair of the. same after the wheat was unladen, and prior to the survey of ovembel' 25th; Richard Lemon, stevedore; on January 23, 1886, against the vesseland cargo, for the sum of $492.50, for unloading the latter from the vessel preparatory to the survey of October lOth, and the Vancouver Transportation Company, a corporation formed underthe laws of Washington territory, on Milorch4, 1886, against the vessel, for the sum of $405, for towagf' up the river on the inward-bound, voyage. . On the arrest of the wheat the 'possession of the same was not claimed by tbe libelants, and it remainedintliecustody of the mal's'ha!. Neither did the claimants make. any application fort,he.delivery to the.rn of the vessel, and it also re.mained in the custody of the marshal. On May 1, 1886, on the application of the libelants, and the consent of the claimants. an order was made foi.the sale of the wheat, and, at the same time, on· the. application of the claimants and tlie.consent of the libelants, an order was made for the sale of the yessel; and.· pursuancHhereof, on May 18th the vessel was sold ·to.the agents of the claimants, Taylor. Young & for the sum of $3.000, and wheat to Q. Otesar & Co. for $1.17t per cental. or th'e sum of $26,282.76, Which sum, 1681:1 $2;522.46, the marshal's costs and expenses, was paid into the registry of the court. On December 10,' 1887, in pursuance of an order made on the application of the libelants, the clerk paid over to the latter $24,032.76 of the amount, leaving in the registry of the court, as the representative of the vessel. the sum of $2,727.54. .

'rHE DIREeJToR.

63,

1n c6nsiderlng the questitlnof the seaworthiness of the vessel, but little, if any, weight has been given to the testimony of the master.' His conduct· throwghout renders him, in my judgmen,t, unworthy of credit. It is not necessary to go into details, and one transaction will suffice to show his want of integrity. Although he admits that the vessel made not less than: three inches of wlllter any hour· between Hong Kong and this port, the log ke.ptby the mate, under his special direction, does. not refer to any leak. After the arrival in this pprt, however, he had mate writeup 'a; ,new log, in which it was falsely represented that during the 2d, 3d;.and, 4th days of July the vessel was :in a hurrioane, with, a cross--seaboarding her fore and aft, and making so mllch water,witQo,ut stating the amount, that it.was.impossible, on the.2d, to keep 4er with one pump, when thefaCt·.was.that the weather on the voyage, excepts. moderate gale in. the Bashee cQannel, where she did not make more than seven inches of w¥-ter an hour·....r.his mlLllufacturedlogwas produced, to the British consul as the true log, and, was made under the apprehension that the cargo was more or less damaged, as a oilsis of protest against the vessel's liabi,lity therefor. However,' the cargo ,came out dry ,and no fnrther use was made of it. My conclusion is that the vessel, at the. date of the charter, was.altoto getherunseaworthy,cohsidered with referel1ce to· the cargo she, carry, and the voyage she was to make. She was structurally defecti.ve. and inherently weak, was poorly fastened and leaked all over.. Caulking did her but little good. Shewas repaired, according to Veritas, in 1883, and yet, when the copper was stripped off of her in 188<5, the oakum in her seams was so loose and water-soaked that it came away without any apparent resistance. This shows that when the vessel was in. motion with a cargo on board, her timbers were working, so as to open her seams, whereby the water passed through until the oakum became .sodden and looSe. The leakage was not the result of any local defect or injury, that could be stopped hy Some specific repair, and tbe flow of which was uniform inall.weatbers, and could be counted on with some degree or' Certainty, without reference to wind or wave, and proviqed . against accordingly. She must have worked more or less all over, like a crate or basket, when subject to a strain. The leak fluctuated, the amount depeqding on her depth in the water, and the state of the weather. Lying in,still she might not leak over an inch an hour, water, at her dock, but in fair weather, when loaded and under sail, the leak would be not less thainthree inches in the same time, while in tolerably rough weather it would increase to not less than six inches an hour, and to whatyolume it might reach, would simply depend on the condition of the w;iJ:).d and wav-es,and how much strain she would bear without filling or going to pieces. . Nor was the vessel seaworthy after the repairs made in this port. She was inherently weak, and this was a defect that calking and coppeJ:ing would n<>t cure. It was like patehing old cloth with new. Nothing short ohebuilding would have umde her fit to carry this cargo of

64

FEDERAL REPOR.TER.

round Cape Horn to Europe. To be seaworthy, the vessel·sbould l;llso bave beetiproperly officered and manned; so that insurance could have been on her cargo. The libelants were the underwriters of this cargo, and,! 'on November 27th, when the vessel was tendered to them ag repaired, they had' reason to apprehend that it was unsafe to trust the master with this cargo. He might, pu:t in some port on the way, and falsely that his vessel had been injured at sea, and have her rebuilt at the expense of average on the cargo. And the small price which the vessel brought when sold here, clear of all liens and claims, shows that she was not considered fit for the wheat trade. Shipping wheat to· Europe is the principal business of this port, and many British subjects are engaged in it. The British port of Victoria is also near at hand. All the fncts of her condition and career had becQme well known>here, and still she only sold for $3,OOO,...,-a sum considerably less than the cost of the repairs just put on her,--iand her ersapp'ear td have been the purchasers even at that price. She finally left this port in July with a cargo of lumber for Shanghai, and it is since understood that she was lost somewhere down that coast. The reasonable inference is that she at last went out with a cargo of lumber because she could not get one of wheat. The representation in the charter that the Director was then "tight, staunch, strong, and every way fitted for such voyage," is a warranty to that effect; and if the charter was silent on the SUbject, the law would imply as much. Seaworthiness is a condition precedent to every charter or contract of affreightment, and, where there is no express warranty to that effect, the law implies one. .The auth6ritiesconcu.'r in holding that, where there is no express men! to thecoritrary, the owner warrants the ship to be seaworthy, JUld at the time fit in all respects to carry the cargo described in the contract to the port or place therein specified. Work v. Leathers, 97 U. S. 379; Wilsonv. Griswold,9 BIatchf. 269; The Vesta,6 Fed. Rep. 532; Davison v. Von Lingen, 113 U. S. 41, 5 Sup. Ct. Rep. 346; The Northern Belle, 1) Wall. 526; The Tornado, 108U. S. 342, 2 Sup. Ct., Rep. 746. In Work v. Leathers, supra, Mr. Justice SWAYNE, speaking for the court; says:' , "Where the owner of a vessel charters her or offers her for freight. :he is bound tOSAEl that she is seaworthy and suitable for the Service in which she is to be employed·. If there be defects, known or not ,knuwn, he is not excused." , Therefore it makes no difference, so far as the libelant's right to.repudiate this contract of affreightment and be restored to the possession of their wheat is concerned, whether the vessel was seaworthy on November 27th or not. 'The unciertaking of the claimants was that she was seawqrthy at the date of the charter and the commencement of the loading. This was a condition precedent to their right to the possession of the wheat for the purpose of earning freight in carrying it to its The clause in the charter, "should the vesselfailto pass satisfactory sutvey, or be unreasonably detained in consequence of having to dry-

'.l'IIE Dl1tECTOR.

65

dock forrepairs,this charter to be void, at charterer's option," has been referred to as excusing the delay for repaits at this port. But certainly the detention contemplated in this clause must occur after the voyage hILs commenced. The smvey, of course, was to take place in this port, and before loading, and, iD'.:unsatisfactory, the libelants might then have declared the contract off, and if,after the voyage had commellced, she had been detained for the cause mentioned, they might then have declared the contract void, and resumed the possession of their wheat. Admitting, however,that the detention in this :port after the unlOll.ding of the cargo was a detention within the purviewof this clause, it is not-apparent how this helps the case of the claimants, for the libelants, in their letter of November 7th, written after the contract for repairs was but before the work was commenced, in effect declared the contract off, and gave the claimants notice of their intention to hold them. liable for the breach of warranty of seaworthiness. The libel alleges, among other things, that the libelants were induced to enter into the charter-party by the fraud of the master, and they ask to have it declared void, on that account. The defense insists that the whole case or the libelants rests on this allegation"and contend that the proof of fraud is not sufficient,. and, therefore, the libel must be dismissed. But the libelants are entitled to such relief as the facts stated in the pleadings and established by the proof will warrant. In this case it is alleged and proved that the claimants failed to keep the condition precedent of their contract-to furnish a seaworthy vessel in all respects fitted to carry a cargo of wheat from this portto Europe, with reasonable safety and dispatch. This absolved the libelants from the performance;of their part of the contract, and entitled them to the return of the cargo, and damages for the failure and. delay. And it matters not whether the master or owners knew of the ullseaworthinessof the vessel or not. They undertook absolutely to furnish in the Director, neither a s·oft.or hardwood vessel, but one "tight, stanch, strong, and in in every way fitted" for the contemplated voyage-in otherwords,a first-class wooden vesseL ,Their ignorance of the fact of unseawOrthiness does not excuse'them for a violation of such undertaking. Not does the fact that any rumor or gosRipin shipping circles -in this port) that may have come to the ears of the libelant's agent, to the effect that the Director was a leaky vessel, or any knowledge which he may have. derived from Veritas,that she ,was built principally of soft wood, qualify the claimant's warranty, or estop the libelants from claiming the benefit thereof. Therefore I do not consider it necessary to go into the question of the fraudulent conduct of the master in the negotiation of this charter-party. But if I did, and the fact that he was aware of the condition of the vessel, and intended and endeavored to conceal the same from the charterers and the public, constitutes such conduct, there would be no difficulty in deCiding the question in favol'of the libelants. A question is made by the claimants that the wheat belongs to .Bald of Liverpool,andthat the libelants have no propellty in it,and. cannot, v.34F.no.1-5