No. 170 | 2d Cir. | Feb 2, 1912
The Venus was chartered by her owner, the Cornliill Steamship Company, the libelant, to the West India Steamship Company, the respondent. The charter contained the following :
“Oil delivering in Cuba, steamer is to have at least sufficient coal on board for 12 days’ steaming which charterers are to take over at $3.50 por ton, 2,240 lbs.”
In other words, the owner agreed to deliver the steamer at a designated port in Cuba with coal enough on board to enable the boat to steam for 12 days. On paying the charter hire, the West India Company deducted $675.38 from the amount due, giving as a reason for its action, the alleged failure of the owner to have the agreed amount of coal on board when the Venus was delivered to the charterer at Manzanillo on April 1, or 2, 1910.
The charterer justifies its failure to pay this amount upon the theory that the Venus when delivered did not have sufficient coal to carry her to a port north of Hatteras, and that therefore the libelant should pay the damage and expenses occasioned by the deviation to Savannah, including time lost, pilot and harbor fees, the price of extra coal and other expenses.
The principal question is — did the Venus when slie reached Man-zanillo, the designated port, have coal sufficient to enable her to steam for 12 days? When she reached there she had coal enough for 11% days and notified the charterer of the slight deficiency, who cabled the master not to get coal there as it was too expensive. We think, in view of the charterer's undoubted right to furnish the additional coal required to make up for the extra half-day that this was a waiver of the terms of the charter for coal enough for 12 days" steaming. When the vessel was delivered she had the requisite amount of coal, except for half a day, and this deficiency was waived by the charterer. If the ship had then started on the northward voyage, she would have had ample coal to reach ports north of Hatteras or even New York. Instead of this, the ship was sent along the coast of Cuba for three weeks, burning coal in steaming, loading and for other purposes. When, then, she was ordered from Jucaro to New York, she had coal on hand for 6% days only, and this was known to the charterer.
The master of the Venus was fully justified in heeding the charterer’s advice not to take coal at Manzanillo, but to wait till he reached a future loading port. At Jucaro, where he was sent, no coal could be obtained. From this port the master of the Venus telegraphed the .charterer as follows:
“Terms lias only 0% days’ coal, not sufficient to* take steamer Norfolk. No coal here.”
As the charterer ordered him to New York with knowledge of the situation, we think the master was justified in exercising his judgment that the best course for him to pursue was to stop at Savannah
The deviation to Savannah was occasioned by the action of the charterer in'using the coal in Cuba, and sending the Venus north from a Cuban port where it was impossible to procure coal.
The decree should be affirmed with costs, less the amount which the charterer paid for provisions, etc., for the crew at Savannah, amounting to $40.88.