520
FEDERAL REPORTER,
vol. 56.
of senators had voted for the impeachment of President Andrew Johnson, and the vote had been followed by an attempt on !lis part to forcibly resist removal from office. The right to determine finally every question involved in that struggle belonged to ihe people of Chile, and their decision must be accepted everywhere as conclusive. It is now an historical fact that the Congl'essional party, in whose service the Itata was employed, ihe will and sovereignity of the Chilean people. This court is bound, in deciding the case, to take notice of the important facts of history. We cannot be expeeted to attempt a retrial of the question of right or wrong in what the people in Chile have done for themselves. By the foregoing considerations I have been led to the conelllsion that the accusation against the Itata has not been sus mined. The contrary is established, and I think that the decision of Cl)urt affirming the judgment of dismissal rendered by the district court ought to be placed upon the ground that the vessel was not intended for service against the republic of Chile.
BOWRING et al v. THEBAUD et at (Circuit Court of Appeals, Second Circuit. December 6, 1892.) No.2. 1. SHIPPING-WARHANTY OF SEAWORTHINESS-CHARTER STIPUI,ATION.
'l'he implied warranty of seaworthiness extends to the time when the vessel actually breaks ground for the voyage, and not merely to the time when she begins to take in cargo; and this implied warranty is not in any way varied by an express warranty in the charter that the vessel shall be staunCh, strong, etc., "for such voyage," namely, the contmnp1'lted voyago "from New York to Progreso, [Mexico,] and back again to New York or Boston;" nor is it varied by a further st'ipulation that, if the vessel shall be reqnirl,d to go from one dock to anotJwr while loading the charterers shall pay towage. Hence there was a breach of the warranty where the vessel was pierced by an unknown obstruction while receiving cargo at a dock to which she had been removed, and the owners were solely liable for a resulting injury to part of the c.."ll·go, and there was no case for a general average. '1'he exception 'in a charter party as to dangers of seas and is not applicable to a hidden danger which, by injuring the vessel at her receiving dock, works a breach of the warranty of seaworthiness. AVERAGE BOND-CoNS'rnUe'l'loK.
2.
SAME-ExOEPTIONS IN CHARTER PAnTY.
3.
A vessel was injured at her dock at New York while loading, and one of her compartments was flooded. She was docked and repaired without unloading. the owners of the cargo giving a bond, whereby, after reciting that certain expenses were incurred thereby, they covenanted to pay tlk "lo:,:s and damage aforesaid, and such other incidental expenses tl]('reon as shall be made to appear to be due from us as ownN'S, consignees, or 8hippers uf carga, .. ... .. according to our interest th"rein, or responsibility therefor;" and that "such losses and expenses be stated and apportioned 'in accordance with the established usages and laws of this state in similal' cases." I-Idd, that this bond merely covered any possible liability of the obligom for a general average contributIon, [wd, there being no case for general average, there was no liabiIity in the bond.
BOWRIKG V. THEBAUD. .
521
Appeal from the Circuit Court of the United States for the Southern District of New York. In Admiralty. Libel by Thomas E. Bowring and Nicholas S. 8tabb against Edward V. Thebaud, Paul L. '1'hebaud, Dolphin E. 'rhebaud; and Frank E. Thebaud to recover an assessment on a general average bond. In the district court a decree was entered for respondents, (42 Fed. Rep. 795,) which was affirmed on appeal to the circuit court. Libelants appeal. Affirmed Convers & Kirlin, for appellants. Carter & Ledyard, for appellees. Before WALLACE, SHIPMAN, and Circuit Judges. WALLACE, Circuit Judge. The libel in this cause is foun<1e<1 on a bond executed to the libelants by the respondents under the following circumstances: On the 29th day of June, 1885, pursuant to a proposition in writing, made by the respondents to the libelants to charter of the libelants the steamship Thorn Holme, then lying at Watsvn's stores, in the port of New York, "for a voyage from New York to Progreso, [Mexico,] and back to New York or Boston," a charter party was executed between the parties. By its terms the libelants "agree in the freighting and chartering of the whole of the said vessel (with the exception of the cabin and bunkers and necessary room for the crew, and storage of provisions, sails, and cables) unto said party of the second part for the voyage from New York to Progreso, Mexico, and back from Progreso to New York or Boston; the vessel to take such cargo to and from the dock at Progreso, as practicable, on the terms following: The said vessel shall be tight, staunch, and strong, and every way fitted for such a voyage, and receive on board during the aforesaid voyage the merchan<1ise hereinafter mentioned." The instrument then describes the cargo to be carried, the sum to be paid for the use of the vessel, Hnd provides for various details to which reference is unnecessary. It then proceeds as follows: "It is agreed that the lay days for loading the vessel shall be as follows: * * * For each day's detention by the fault of the said party of the second part, 35 sterling per day, day by day, shall be paid by the said party of the second part to the said party of the first part. '1'he cargo or cargoes to be received and delivered alongside within reach of the vessel's tackles. Vessel to haul once to New York to such loading berth as charterers may designate, and, if again required to move, Chill'terers to pay towage; and to discharge homeward cargo at such berth as charterers may designate; vessel to employ charterers' stevedore loading at New York. The danger of the seas and navi· g'ation of every nature and kind always mutually excepted." July 1885, pursuant to directions from the charterers, the vessel was hauled from Watson's stores to Union stores, near by in the harbor, and began to load a cargo. After the greater part of the cargo had been taken on board, and on July 10th, it was discovered thur; the vessel was leaking badly in the fore peak, owing, as subsequently appeared, to a hole in the bow, made by some unknown cause while
522
REPORTER,
she was lying at Union stores. The fore peak was separated from the rest of the vessel by a collision bulkhead. Attempts to free the vessel by pumping having failed, the sluiceway into the fore peak was closed, and the water was thus confined within the fore peak. Surveys upon the vessel were thereupon held, and the master, pursuant to the recommendations of the surveys, decided that it was necessary to put the vessel on the dry dock. After consultation with the underwriters, and in order to save expense, he concluded to dock her with the cargo on board. Repairs were made by riveting' a patch over the hole, and on the 18th of July the loading was completed, and the vessel was ready to sail upon her voyage. On that day the bond in suit was executed. The instrument, after reciting the accident to the vessel, and her having been docked with the cargo in her, by which means losses and expenses had been incurred, contained a covenant by the respondents to the libelants to pay "the loss and damage aforesaid, and such other incidental expenses thereon as shall be made to appear to be due from us as owners, consignees, or shippers of cargo, * * * according to our interest therein, or responsibility therefor," and that "such losses and expenses be stated and apportioned in accordance with the established usages and laws of this state in similar cases, by Jacob R. Telfair, or other competent adjusters of marine losses." Subsequently an adjustment was made under Mr. Telfair's direction, by which the cargo was assessed, for general average, $816.05. By the libel this sum is claimed to be due from the respondents as a general average charge. We are of the opinion that this cause does not present any ground for an average contribution from the respondents, because it was obligatory on the libelants, under the covenant for seaworthiness, to have the vessel in proper condition for her voyage at the time of breaking ground. The shipowner in every contract of affreightment impliedly engages with the shipper of goods that his ship on the commencement of her voyage is seaworthy for that voyage, and supplied with a competent crew. The doctrine is stated in Carver, Carriage by Sea, (2d Ed.) § 21, as follows: "The warranty of seaworthiness for a voyage must be satisfied at the time of sailing with the cargo. It is not sufficient that the ship was fit for the voyage while the cargo was being taken in, if she became unfit before she started. The warranty in tnlth appears to be a double one, viz. that tlw ship shall be fit to receive the carl;O when receiving it, and shall be fit to sail at the time of sailing."
As stated by Lord Mansfield in Bermon v. Woodbridge, 2 Doug. 781, 788, the warranty is that the ship shall be seaworthy "when she first sails on the voyage." The question whether such a warranty is satisfied if the vessel is seaworthy at the time of being laden, but not at the time of breaking ground for her voyage, has been considered in several adjudged cases. In Purvis v. Tunno, 2 Bay, 492, the defendants had chartered a brig for a voyage from Charleston to Cowes and a market. After part of the cargo had been put on board of her, and while she lay at the wharf, she grounded, and thereby started some of her planks, and became so leaky
BOWRlKG V. THEBAUD.
523
that the cargo had to be landed, and she was then put into the hands of a ship carpenter for repairs. The freighters, conceiving that they had a right to abandon their contract, and were not obliged to wait until she was repaired, chartered another vessel, and sent the cargo forward. In a suit upon the contract of affreightment it was contended for the plaintiff that the defendant should have waited a reasonable time until the ship was repaired, and for the defendants it was contended that it was obligatory on the part of the owners, not only that the ship should be fit for sea before any part of the cargo was put on board, but also that she should be in like good order until she broke ground to proceed on her voyage, and that they were not obliged to wait until the ship was again made seaworthy, and lose the chance of procuring another vessel without delay to send on their merchandise. The court sustained the position of the defendants. In Cohn v. Davidson, 2 Q. B. Div. 455, in the opinion the discussion turned upon the point at which the warranty of seaworthiness on the part of the vessel was fulfilled, it being contended by the defendant that she was seaworthy when she commenced taking in cargo, and must have received damage in the course of loading, and that such seaworthiness satisfied the warranty. On the other side, it was contended that the warranty of seaworthiness on the part of the vessel continues in full force up to the time of sailing or breaking ground for her voyage. The latter view was adopted by the court. Mr. Justice Field said: "Seaworthiness is well understood to mean that measure of fitness which the particnlar voyage or particular stage of the voyage reqnires. A vessel seaworthy for port, and even fOl' loading in port, may be, without breach of warranty, whilst in port, unseaworthy for the voyage, (Annen v. Woodman, 3 Taunt. 2D9;) but if she put to sea in that state the warranty is broken. Now, the degree of seaworthiness which the merchant requires is seaworthi· ness for the voyage; and surely the most natural period at which the warranty is to atmch is that at which the perils are to be encountered which the ship is to be worthy to meet."
In the case of The Eugene Vesta, 28 Fed. Rep. 762, decided by the present Mr. Justice Brown of the supreme court, the court said: "There can be no doubt that there is an implied warranty on the part of the carrier that his vessel shall be seaworthy, not only when she begins to take cargo on board, but when she breaks ground for the voyage. The theory of the law is that the implied warranty of seaworthiness shall protect the owner of the ca rgo until his policy of insurance commences to run; and, as it is well settled that the risk under the policy attaches only from the time the vessel breaks ground, this is fixed as the point up to which the warranty of seaworthiness extends."
Although in the present charter party there is an express warranty of seaworthiness, it is silent as to the time when the warranty is to attach or to be satisfied. The statement is that the vessel shall be staunch, strong, etc., "for such a voyage," and the only voyage mentioned in the instrument is "from New York to Progreso and back again to New York or Boston." The warranty does not qualify in the slightest degree the ordinary obligation of the shipowner under an implied warranty of seaworthiness. Although the contract c{llltemplates the hauling of the ship from one part of the
524
harbor in New York to another, for the purpose of enabling her to be loaded, there is nothing in it to mark that circumstance as anything beyond a preliminary to the commencement of the voyage. The provision for it is incidental to matters of demurrage and expense of towage. It is preposterous to suppose that the parties intended that the warranty should extend only to the fitness of the vessel to proceed from one point to another in the harbor of New York. The warranty that the vessel is tight and fit for the employment for which she is offered-that is, for the contemplated voyage on which she is to carry cargo-is the very foundation and substratum of the contract of charter. The exception in a charter party as to dangers of the seas -and navigation is not applicable to the perils and dangers which arise from the breach of the shipowner's obligation. Ang. Carr. §§ 166, 226. Consequently it does not apply to the warranty of seaworthiness. Undoubtedly, in cases where, under the language of the charter party, the warranty is satisfied if the vessel is seaworthy at the commencement of a voyage preliminary to her being laden, the shipowner is relieved by the exception from liability for any peril of the seas or navigation which are subsequently encountered without fault or negligence on his part. Bruce v. Nicolopulo, 11 Exch. 129; Barker v. McAndrew, 18 C. B. (N. S.) 759; The Carron Park, 15 Prob. Div. 203. In Crow v. Falk, 8 Adol. & E. (N. S.) 467, the charter party contained the usual recital that the ship was tight, etc., and provided that she should load a cargo at Liverpool, where she was then lying, and proceed to Stettin, and deliver it. It contained the usual exception of restraint of princes and rulers, and of the dangers of the sea and navigation. The court held that the exception was only applicable to the time after the commencement of the voyage from Liverpool. Although the correctness of this decision was questioned by Pollock, C. B., in Bruce v. Nicolopulo, 24 Law J. Exch. 321, it was approved by Cockburn, C. J., in Valente v. Gibbs, 6 C. B. (N. S.) 270. In all these adjudications the question was as to the meaning of the contract of the parties. This must be decided in each case by applying the rules of interpretation to the contract in hand. There is nothing in the language of the bond which imposes upon the respondents the responsibility for any loss which is not the subject of an average contribution. 'fhe provision that the losses and expenses are to be stated and apportioned in accordance with the established usage and laws of this state in similar cases refers only to the mode of computing the amount to be paid in case any payment shall be made to appear to be due from the respondents. The libel, in stating the agreement between the parties, states it according to its real tenor and effect, as one whereby the respondents agreed to pay their ratable share of the losses and expenses, "provided it be made to appear that a general average charge would be due from the cargo if it had been first discharged and stored to enable said repairs to be made." \Ve conclude, therefore, that the complainants were solely responsible for all the losses and expenses incident to repairing and dock-
SMITH V. NEW YORK GRANITE PAVING BLOCK CO.
G25
ing the vessel, because these accrued by reason of unseaworthy c:ondition before she was ready to sail. Having reached this conclusion, it is not necessary to decide whether, because the cargo it· self was not in any peril, there was a proper case for general aver· appealed from is affirmed. age. The v. NEW YORK GltANITE PAVING BLOCK CO. (District Court, S. D. I"ew York. March 26, 1892.) DEMURHAGE-CONSIGlI"EE'S FAILURE TO FCRlI"ISH BERTH-BILL OF LADTNG.
'l'he bm of lading under which a vessel carried a cargo of paving stones nrovided "that forty-eight hours after arrival at the port named in the nill I)f lading, and notice thereof to the consignees named, there shall be allowed for recdving >iuch cargo one day for every seventy-five tom; thereof, after which the cargo shall pay demurrage," etc. 'l'he vessel duly re'ported on July 24th, but the consignees did not give her a berth until August 7th. On suit brought to recover demurrage for that period, respondent claimed that there WIlS no obligiLtioll ou it to find the vessel a herth. Hcld that, while it is the ship's business to fiud a berth :in the absence of any custom or evidence to the contrary, the cirCUmSL'lnCeS of this case, nud the construction evidently given to the bill of lading by both parties, showed that consignees were expected to furnish the berth. Libelant was therefore held entitled to recover.
In Admiralty. Libel by James H. Smith against the New York Granite Paving Block Company for demurrage. Decree for libelant. Affirmed in 56 Fed. Rep. 527. Owen, Gray & Sturges, for libelant. Harriman & Fessenden, for respondent. BUUWN, District Judge. The respondents were consignees of 400 tons of paving stones. By the "Stone Bill of Lading" adopted in this case it was provided "that 48 hours after the arrival at the port named in the bill of lading, and notice thereof to the consignees named, there shall be allowed for receiving such cargo one day for every 75 tons thereof, after which the cargo shall pay demurrage at the rate of 6 cts. per ton a day," etc. 'fhe master of the vessel duly reported at New York on the 24th day of July, 1891. There being no vacant 'berth where the respondents were accustomed to receive paving stones, the schooner waited until the morning of August 7th, when the respondents gave her a berth. Demurrage is claimed for this delay. The respondents contend that the bill of lading imposed no duty upon them to find the vessel a berth, and that their only obligation was to receive, that is, to take away, 75 tons a day after the ship had found a berth and commenced the discharge. The schooner was bound by the bill of lading to pay the expense of unloading the stones. In the absence of any custom or evidence to the contrary, it is, no doubt, the ship's business to find a berth in the port of discharge. There is here no proof of custom; and the evidence upon which the cause has been submitted is so meager as respects the ship's duty, or the understanding of the parties, that I find some embarrassment in arriving at a decision. In a port so extensive as the port of