""A.. CA.RGO B00YE
OJ!' DRY BOARDS.
qF DRY BOA.RDS. l
(DiBtrict "
D. New York. .May 10, 1890.) BY WEA.TlIBlt.
.
tInder acontract of charter, absolute in its terms, to deliver to vessel a certain quantity of cargo per day, the charterer assumes the ris1i ot the wil'llfherbeingo such as to forbid handling cargo.
In Admiralty. Action for demurrage. Owen, Gray « Sturges, for libelant. Bartlett, Wilson « Hayden; .fOl' elahnanf. BENEDICT, J. This is an acti'Oll to recover days' demurrage in loading the libelant1s vesllleLat Atlantic City, Norfolk, Va., and five days' demurrage in discharging the vessel at New York. , Inl'egard to thedetentioll inAtlantic City in loading the vessel, the that th:e was detaine.d three days, andtb8lt the . fact was.nliny,· that .detention arose solely from the fact ,·the bcnttd's, having been cl;>uld,Qot Qu'boardJ1ip 'such, weather without damage,' The provision of wasa,s !ollpws: "It is agreed that the Illy dlschargibg snaIl follows, if not sooner dispatched: From tmrvessel is l\eady to receive or discharge cargo, 3O,OOO:feet'per day, Sundays excepted do for and qnick dispatch and thl1-t for each and 6,very detentiUn of the by defaillt of said patty of the second 'Pilit, or ',,,gent, $25.00 per day, day by day,. shall be paid by said party of the·'1l6oond to the party of. agent. The. cargo or.cargOes. roheli'll: of \fe\lsel's ." , ., , ' , [ " 'i to tb,e fact that the vessel was: ready: for! lo.ad:jng.at¥o.rfp1k a,ppointedtime, and,that;JL30,OOO feetoLboards ibadqew:du,rnished her each day, been.lQaded,tbtee : tht\n was. Nor is any ditlp:ute as to theJacttthat ;Cl1oqse orfailure of the.charterertQ deliverthaboll.rds alongtside .:the xesllela,s,agreed .in the .charter-party .was:. that the w.eather was rliLiny; it apdtlle boards;: which .wer:e kiln-dried··.would be. damaged if rain. Under such a. cQPtJ;'act; absolute in itstem1s,:for to the of30,OOO feetpfboa.rdsper.day,.lamOf :,the the ,qpiI,lioll that the ,:sk .of ,the weather is. aSll1Jmed by the. cbuterer. ,Jt be{ln fiO easy. to have said "weather permitting" tbaUhe .l.Lbllen,ce ,ofWl;)rds of >that indicate an,underlltandingtbll,t"the . at o.i ()harterer. The :words "by default,ofJ$he party 9f the second part" mean the defa;ql t. in furnishing 30,000 ..feet . vessel' lor the loading thereof.. Thii8v. Byer8'oj i l ,Q.B.. ' . the detentiqnof the ill New Yorkinnnioading, . it clear that the delf\Y i :wag by fault of the, ilnaster of the ship in not ,tPe,p111ce,deaiggated fOf.the. disehargI I,
" '!'j'
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J'EDERAL REPORTER,
vol. 42.
ing of the cargo on Saturday, or even Monday morning. If he had arrived at the place on Monday m9rning, even, it is evident that he would have been discharged at once. The libelant must recover for three days' detention at Atlantic City at the rate provided in the charter. Let a decree be entered in favor of the libelant ic>r $175 and costs.
THE STEPHEN BENNETT. l THE ELlZABETH T. COTTINGHAM.
" .
tDf.4tJrict Oourt, E; D. New York. May 10, 1890.) .
COLLfSION-UVERTJJUNGVE8SEL-MISSfNG · . 'J;\'Il9 schooners were beating l1P the ooallt, the B. following in close proximity to the 'C.",nd slightly on her. 'l'he C. went about, immediately afterward-II the B, littempted to do' the same, but misstayed, and, gathering sternway, got under of the C" anawa& struck bY ber. The B. had misstayed once before that morning. Held, tha,t the collision was aaused by the B. in tacking so close to the C.I',with knowledg.e'thatshe was liable to misstay.
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fqrdamages by collision. , OWifff,'.(}ray &' St1J,rges, for the Elizabeth T. Cottingham. .,GOQq,rich" lJeq.dy&' ()Qodrich, fOJ: the Stephen Bennett. l3E;NE:l?ICT, J are cross-libeJs filed to recover by rea.aOn' artlc eollision· which occurred about noon of December 6, 1888, off . the New Jersey coast near to Barnegat, between the schooner Stephen Benllete'and the schooner Eliitlbeth T. Cottingham. The weather was clear., wind blowing very hard from the N. N. W., and a heavy sea rolling in'ftQm the N. E. Both vesqels, loaded with lumber, were beating up the coast. They had stood in from offshore towards the beach for about an hour, the Oottingham being ahead and a point on the lee bow Qfthe Beanett. When the master of thE! Cottinp;ham judged that he was ncar enough to the ;beach he tacked. At the same time, or perhaps a momentlater,the Bennett also came 'Up into the wind, intending to tack, butmissieyed, and;. gathering sternway, got under the bow of the Cot'Ainghnm, and' was struck by' her. Upon the evidence, the Bennett alone f(lr tlle collision. She was the overtaking vessel. She hadltllsstayedhefore that morning, a.nd knew that she was liable to misno right to tack so close to the Cottingham as to . rendeflcpnision inevitable in case she should misstay. The Cottinghanl ·was gUilty of no fault. She Was ,,jn the open sea, and, although she rnightperhapshavegone a littlenea'l'er to the shore than she did, it was no fault ill her to tack where she didj andit wail the duty of the Bennett, following her so closely,-gaining on her, indeed, as the evidence shows, --,not to tack so close to her as she did. The libel against the Cottingham ,m1Jl'st be diflmislled, with costs,and the libelants in the first action ;:/llustbave :Il.. decree; with anol'der ofreference; 1 Reported
by Edward ,G·.. BenedLCt, Esq._ 'Clf
New York bar.