198 F. 328 | E.D. Pa. | 1912
Two libels are filedl by Joseph Mc-Caldin, managing owner of the steamship Dassell; the one, in rem, against a cargo of lumber laden on board the vessel, to recover $2,375 charter hire from March 28 to April 14, 1910, and the further sum of $23.30 damages to the cabin house of the vessel. No evidence having been offered in support of the latter claim, it will not be considered.
The Philadelphia & Gulf Steamship Company, claimant, admitting the use of the vessel from March 28 to April 14, 1910, filed a cross-libel setting up a counterclaim for certain damages specified! as growing out of an alleged breach of the charter party.
The other libel is in personam against the Philadelphia & Gulf Steamship Company to recover a balance of $4,607.98 alleged to be due for charter hire from April 14 to July 12, 1910, first allowing certain credits upon recharters.
The respondent denied all liability for the sum claimed in this libel, and defends upon the ground of a surrender of the vessel, because of the libelant’s alleged failure to maintain her in a thoroughly efficient state of repairs in hull and machinery, and, furthermore, the failure of being able to proceed on her voyages with dispatch as required by the terms of the charter party.
The respondent, February 28, 1910, notified libelants that because of the defective condition of the vessel they would surrender her on and after March 28th, claiming that she was unseaworthy and that libelant had failed) to maintain her hull and machinery in an efficient state, and that her captain had failed to prosecute the voyages undertaken with dispatch. The vessel continuing to malee her voyages, on April 6, 1910, on arriving in port at Philadelphia, suit was brought to recover, by attachment, the charter hire, $2,375, due March 28th preceding. The respondent continued to use the vessel, making an unsuccessful effort on April 12th to surrender the same at Philadelphia. She was subsequently ordered to New York, and was there surrendered to the libelant, after the respondent on April 22d expressed its willingness to have the Lassell chartered by some other people without prejudice to the rights of either party. The Lassell was after-wards chartered and earned considerable money, which was placed to the credit of the respondent on claim of libelant.
' “After' having carefully examined vessel’s hull, boilers, and machinery, we are of the opinion she is in a condition to navigate with safety as a. steamer on the route named in her certificate of inspection.”
True she is not a new ship, and not as safe, possibly, as those of more modern type and construction; yet it appears from an examination of all the. evidence of those who operated and inspected her that she was in good condition and efficient and reasonably safe for the service in which she was engaged. And this is all that could be required. The Silvia, 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. Then, again, it is presumed that the respondents regarded the ship properly fitted and capable for their employment, having made an extension of the charter using the same, in the service continued, for a period of six months. As was said by Judge Benedict, in The Piskataqua (D. C.) 35 Fed. 622:
“The charterers have much less ground for reclamation, because of the result of events accruing after they have definitely accepted the vessel, which they, themselves or by their agents, have acknowledged to be in good seaworthy condition to perform the voyage. This was, on the other hand, for the ship owners the best evidence of good seaworthy condition which they could have, because it proceeded from their own charterers interested in the performance of the , voyage.”
Whereupon it cannot be allowed that the charterers can come today and argue against a fact which they have themselves acknowledged.
But it is argued that since renewing or extending the charter the ship became so defective as to render her unfit to meet her requirements. This is not borne out by. the proof, and it appears reasonable that, having been in service some thirty years, and being of strong build, of £ood material, which is also implied from her long use and service, she would viiot deteriorate very rapidly. It is true that the government inspectors reduced her steam pressure from 100 to 70 pounds. However, it does not appear that this affected the efficiency of the vessel. Indeed it had very little, if any, effect upon the speed of the vessel under the load she was accustomed to carry. It is, furthermore, questioned whether she at any time reached or even approximated the full pressure formerly allowed. The log book shows that after the pressure was reduced she made her voyages in about the same time, carrying the same kind and quantity of cargo, as before; hence she lost nothing on account of speed required.
Though the vessel’s efficiency was not impaired by reason of reduction in steam pressure, furnishing respondent no reasonable excuse for cancellation of their charter extension, it seems equitable and just that some allowance should be made for increase in coal consumption thereby necessitated. It appears that such reduction, if made, would necessarily cause the consumption of from three to four additional tons of coal daily to maintain her speed, that it required from eight to nine days to make the trip each way, and,
The item, $59.60, captain’s expenses at Knight’s Key, has not been sufficiently proven as being chargeable against the respondent, and is disallowed; and for the same reason two items, $91.70 and $58.85, expenses of James McCaldin, are disallowed.
In No. 42:
Charter hire due March 28, 1910...$2,375 00
Credits allowed respondent:
Extra coal consumed. $746 40
Stranding vessel on Tinicum Island.. 742 69
- 1,489 09
Balance due.i. $885 91
Let a decree be entered for this balance, $885.91, due March 28, 1910, with interest from this date, and costs.
In No. 43:
Balance due steamer and owners, as per claim of libelant.$4,607 98
Credits disallowed libelant:
Captain’s expenses at Knight’s Key. $ 59 60
Expenses, James McCaldin. 150 55
Vessel hire from April 27 th to 30th. 479 97
-- 690 14
Balance- due. $3,917 84
Let a decree be entered for this balance, $3,917.84, due July 12, 1910, with interest from this date and costs.