4813 :,\u!itructions';t(), ,st:lt. decree., in the libelant $4,590",10, with!jnter;est. frolll.the 27th day ber, ,of the rate of 6 per cent. per anJ1..uWtrH\J:!.d lip..! that: incurJred; .. that the of .lhe,couJ.1; in this cause, of be applieQdinpart payment libelallt ,ha.ve judgI,U forl3,ny balance then ut ,remainiJ1.gu,y:pmUd SteamshipOompany, com· posed .. Co.,: and. Thomas R., Sweeney and George Sea,lYt stipulation, and judgment be without the pgh't$ .Qf N.W. Cuney, libelant herein, against W. W. ;WUson,agl?nt, or anyone else. on acco1ip;t of any that may. ,be due ,him from said aJ:!.d1)1at the' be taxed again,st the appellee herein; so ordered. .THE ,PQllT ADELAIDE. JAMISON v. PERRY. (Clrcult,Oourt of 4Pp¢alij, Second OircuIt. June 7. 1804.) No. 148. BHlPPINGC-CRARTJtRPAllTy-'-RIO:HT TO EXTRA FREIGHT EARNED.
By the a. ch1lrtel1 the charterer was entitled to the whole cargo capacity ()t tbe :and the sen"lces of her officers and crew, for the the charterer's permission, used the vessel<m.partot 'ilievoyageforcarrying cargo for third persons. .Held., that the· chill.rterermightrecover the freight thereby earned, less the eai'J;l.1,I:I.g it, by against the vesseL 1)9 Fed. 174, modified.
Appeal from the District Court of ,the United States for the Eastern. District of New York. ,'fhis was a libel by Edward Perry against the steamship Port Adelaide (DavidE. Jatnison, claimant) far freight received by said steamship while under charter to libelant, and for damages for of thech'arter party. . The district court rendered a decree for libelant. 59 Fed. 174: Claimant appealed. JlParker Kirilli, for appellant. David Thomson,· f.orappeUee.. nefore W.ALQ-OE, LACOMBE, an<iSIDPMAN, Circuit Judges. FER ctrRIAM; By the: terms of the charter party, the whole capaCity of ..and the services of her officers lU1<l crew, to tb,e· libelant 'for the specified voyage. If it"lia.dbeenfutended to'reserve to the 'shipowner any p:Ht of the .vsselfor ihe'purposed!.carryingeargo, that intention would doubtless in the contract, but instead the charter party 'wllsf6r"the wlioleof the vessel." Under such a cont.ract the master right, without the Mrtnission' of the libelant, to use the up<many part of the voyage for carrying' 'f6r third. persons:'{Javing done so, however, and earned freight thereby, the libelan.t, if he saw fit to adopt the
THE PHOENIX.
487
master's act, became entitled, upon the plainest principles of law, to the freight earned. We fully agree with the views expressed in the opinion of the learned district judge as to the right of the libelant to recover the amount of freight. But the amount earned was $500, and not $950, and there is no evidence in the record which justifies a finding that the expenses incurred in earning the freight were not as stated in the testimony of the master. '1'he decree should be modified accordingly, and the cause remitted. with instruction to the court below to decree for the redncedamount, with interest and costs of the district court; the appellant to have costs of this appeal. Ordered accordingly. THE PHOENIX. PARSONS et al. v. ROCKWELL. of Appeals, Fourth Circuit. May 22, 1894.) , No. 68.
(Circuit
SALVAGE-COMPENsATION-REVIEW ON ApPEAL.
A stea.lliShip, worth, with her cargo, about $160,000, was disabled by the breaking of her shaft, far out at sea, and after drifting under sail sever;il days, changing position but little, was taken in tow by anotber stealller, valued at $125,000, whose cargo was worth $400,000, and whm,.. freight and passage money amounted to $13,000. No unusual troub:e occurred, and no unusual risk was involved in the towage, and the onl,\' storm encountered arose on the fourth day, when the vessels wel'e anchored in a place of comparative safety; and. on the next day the towage was completed. Held, that an award of $35,000 was excessive, and should be reduced to $20,000.
Appeal from the District Court of the United States for the Eastern District of Virginia. This was a libel by Cyrus O. Rockwell, master of the steamship Saginaw, against the steamship Phoenix, John J. Parsons and Thomas Linton, claimants, for salvage. The district court rendered a decree for libelant. Claimants appealed. The decision of the district court, rendered by HUGHES, District Judge, was as follows: Statement of the Case by the Court. The British steamship Phoenix (Philliskirk, master) left l\-:lacio, Brazil. on the 19th of January, 1893, laden with 2,100 tons of sugar, bound for New York. where the cargo was worth $98.953. The vessel herself was worth not less than $60.000. Her freight money on this cargo was $5,000. She was of two short masts, schooner rig, carrying foresail, square foresail, double topsail, fore and aft foresail, fore staysail, main stuysail, and jib. Her tonnage was 1,728 gross; her length, 256 feet; beam, 36 feet; and depth, 18 feet Il inches. On the 8th day of February her shaft broke square off in the thrust bearing. The steamer was then in longitude 70° 20', latitude 300 31'. All sails were set, and the ship headed to the northwest. She proceeded under sails until the afternoon of the 12th, making a total distance in the time of 117 miles. The engineers began an .attempt at repairing the broken shaft on the 9th by cutting out thrust collars, and placing in these two steel plates. on opposite sides of the shaft, fastened with bolt'l, as is shown by that portion or the shaft itself, which is exhibited in court. They worked at this job continuol1s1yfrom the 9th to the afternoon of the 12th, and now they say they could have completed the two patches and have fastened them in place in four or five hours longer. The job was never completed, and its efficacy was