59 F. 630 | E.D.N.Y | 1894
This is an action against the steamship Alvah to recover damages for a violation of a contract of affreightment. It appears that Brighani & Pillsbury, shiphrokers, claiming to act on behalf of the steamship Alvah, agreed with the libelant for the transportation of 374 head of cattle, in the steamship Alvah, from Boston to London. When the Alvah was ready to receive the cattle, the fittings for the transportation of the cattle were made, and a space for the transportation of 374 cattle arranged. Of this space a part, being tbe after part of No. 2 and No. 3 between decks, was declared by the agent of the insurers of the
On behalf of the claimants, it is insisted that the contract made by Brigham & Pillsburv was not a maritime contract, but a contract preliminary to a maritime contract, and did not bind the ship; and, second, that it was made without authority. This point cannot avail, for the reason that the contract made by the brokers was afterwards confirmed by those who had authority to bind the ship, and the ship actually entered upon the performance of the contract by taking on board cattle under the contract. After the performance of the contract had begun, the ship became bound to its -performance, and the libelant can recover in admiralty against the ship for a violation thereof.
The next; ground of contention is that the evidence is that the master was ready and willing to take on board the number of cattle required by the contract, and the failure to transport the 42 head was owing to the refusal of the shipper to ship them. I think it cannot be doubted that, in a contract for the transportation of cattle, it is implied that the space to be allotted to the cattle for the voyage shall be sufficiently ventilated. If, therefore, the act of the insurance company in refusing to insure cattle placed in the after part of No. 2 and No. 3, without the additional ventilators, was justified by the facts, the shipper was not bound to ship more than 332 cattle, and can recover for the failure of the ship to transport the additional 42 head called for by the contract. The brokers reported that the ship would insure. This undoubtedly meant that 374 head of cattle, if carried in the space allotted by the ship for their transportation, could be insured. As the fact turned out, insurance could not be effected upon cattle placed in the after part of No. 2 and No. 3 between decks without additional ventilation, which the master refused to provide. This, I think, justified the shipper in refusing to ship more than 332 head of his cattle, and rendered the ship liable for the damages sustained by the shipper by reason of the nonshipment of the 42 head of cattle that were shut out by reason of the master’s refusal to provide sufficient ventilators for the space allotted to the cattle.
The libelant must therefore have a decree, with an order of reference to ascertain the damages.
