14 F. Cas. 1187 | E.D.N.Y | 1868
Upon the proofs, as they stand, this ease is, beyond any doubt, a clear one for the libellant. On the evidence, before me, the injury to the engine, and consequent delay of the vessel in executing the voyage, arose from the action of the respondent in overloading her— and it does not appear that any misrepresentations were made as to her condition or capacity. She was chartered only after an examination of her by the charterer and his agents, and upon that examination instead of upon representations. The balance of the charter money is, therefore, clearly due, and it is equally clear that the respondent is liable for any injury sustained by the vessel in going up the Panuco river, where the charterer had no right to take her, under the contract. That she went up the river, is admitted, and that she there received some injury, is proved. The loss occasioned by this deviation from the voyage contracted for must be borne by the charterer, and not by the shipowner. The libellant is also entitled to recover any sum paid by him upon drafts drawn by the master for stores, &c., at Galveston, Key West — all which expenses are, according to the charter, to be borne by the charterer.
Let a decree accordingly be entered in favor of libellant, with an order of reference to ascertain the amount.