234 F. 187 | E.D. Pa. | 1916
The above are cross-actions. The respective claims arise out oí a charter party. The proceedings are in personam. The causes of action set up are, in the inverse order of the institution of the proceedings, in substance as follows:
The steamship claims for the agreed hire stipulated in the charter party, less an admitted deduction for hire from October 8 to October 15, 1911, amounting to $1,623.23. The charterers deducted hire to October 24th, increasing the amount deducted to $3,652.27. The difference, or $2,029.04, measures the amount of the claim. The libel in the one proceeding is by stipulation to be taken as the answer to this claim. The claim in the first case is by the charterers. It is for loss of the use of the ship through the act of the owners in withdrawing its service, and for time lost at two ports at which the ship touched, for
The defense to these counterclaims can be most succinctly stated in connection with the facts. The amount due for hire is undisputed, except that a larger deduction is claimed than the owners allow. The charter party contract was entered into June 24, 1911. The hire was ¿1,250, British sterling, per calendar month, and ratably for a part of the month. The hiring was for six calendar months from time of delivery ; the place of delivery “a port in the ,U. S. Gulf,” other than the ports excluded. Redelivery to the owners was to be made at “a port in the River Plate at charterers’ option.” Charterers were to pay for all coal in the steamer’s bunkers at the current market price prevailing at the port of delivery, and were to leave 500 tons in the bunkers when the ship was redelivered, for which they were to be paid a stipulated price per ton. The charter party was of the usual printed form type, embodying the conditions and covenants ordinarily inserted. The special facts and the applicable provisions of the charter party are these:
The vessel was delivered to the charterers, and her charter hire began to run, August 4, 1911, with the vessel at Gulfport, Miss. She7was there loaded, and proceeded thence on a voyage to Buenos Ayres, Argentine. On the way some crew trouble arose, and the vessel put in at St. Thomas, Danish West Indies. The trouble with the crew was there submitted to the authorities. As a consequence, some of the crew were left at St. Thomas. The vessel left that port September 13th, and proceeded on her voyage to Buenos Ayres, arriving in the outer harbor October 6, 1911. The captain went ashore to make arrangements for discharging the cargo. During his absence, the vessel took ñre. The time of the fire is fixed as between 7 and 8 o’clock in the morning of October 8th. It started in an extra bunker just aft of the part of the cargo stowed through cargo hatch No. 2. It became necessary to flood the ship in order to control the fire. This, in turn, of course, necessi-. tated the ship being pumped dry. The result was the ship did not reach the inner harbor until October 15th. Arrangement (interrupted by the fire) had been made to begin discharging October 9th. The result was that a discharging wharf was not secured until October 27th, and the work of discharging was not begun until October 30th. It was not completed until December 4th. Surveys were had and temporary repairs made to enable the vessel to get to a port at which she could be finally put in condition. She left Buenos Ayres December 16, 1911, stopping at Montevideo and Los Palmos for a renewal of her coal supply, and reached Wallsend January 20, 1912. Repairs were made there, and the vessel made ready to be again put in commission, March 6, 1912.
We observe in passing that the time limit of her hiring expired Reb-ruary 4, 1912. During the time the vessel was at Buenos Ayres, the charterers and owners conferred through telegrams, correspondence, and agents upon the subject of the disposition of the vessel. The view pressed by the owners then, ás now, is that the charter was practically at an end. The charterers insist now, as then, that the vessel should
There was some evidence in the case which would have justified a finding that a safer construction might have been introduced to lessen
2. The second main point, involved is whether the owner breached the covenants of his charter party in taking the vessel to Wallsend on Tyne. The hiring was for full six calendar months. For this length of time the vessel was at the disposal of the charterers. Had she become unfitted for use and repaired within the term, the charterers could use her when made efficient up to the end of the term, or under paragraph 5 of the charter party up to tire end of her then uncompleted voyage.
It is admitted that, under paragraph 17, fire suspended the obligations of the contract, or annulled them, according to the fact of whether the efficiency of the vessel was restored within the time of the running of the contract. The fact of fire rendering the ship inefficie'nt is asserted by both parties. The fact that repairs could not be made in Buenos Ayres is not disputed. The vessel was taken to Wallsend on Tyne, and not restored to efficiency until after the charter party had expired. There is no complaint of delay in what was done. The complaint is limited to the assertion that she might have been taken to a port of the United States and there sooner repaired. Unless, however, she could have been repaired in the United States before the expiration of the six months time limit, taking her to England did not affect the rights of the charterer. The whole question presented by this feature of the case turns on the fact, and the fact is found with the owner and against the charterer.
Formal decrees embodying these findings may be submitted.