48 F. 574 | E.D. Pa. | 1891
The libel is for freight, under charter-party — for carrying sugar. The amount earned is $7,682.80. The charter provides that “the ship shall pay charterer’s agent at port of discharge a commission of two and a half per cent, on gross freight,” and that the ship “shall be addressed at tbe port of discharge to the charterer or his agent for custom-house business, on the usual terms.” The cargo was to be delivered at Philadelphia, “along-side store or into craft or steamer at wharf, pier, or on cars, always afloat,” as ordered. On the ship’s arrival controversy arose respecting the appointment of an agent, and the employment of stevedores. As we have seen, it was the charterer’s right to appoint an agent, and the duty of unloading was on the vessel. The charterer, Spreclcels, appointed Hempstead & Co. and desired the employment of Ids own stevedores, at 45 cents per ton; while the master was solicitous for the appointment of Wesenberg & Co. as agents, and selected his own stevedores — contracting to pay 35 cents per ton. An effort was made to reach an agreement on tbe subject, and several interviews between the parties occurred. The testimony produced is too contradictory to prove the allegations of either side. The libelant sets up an agreement for the appointment of Wesenberg & Co.; and the respondent an agreement that his stevedores should be employed at 45 cents per ton. The burden of proof is on the party setting up tbe agreement; and in view of tbe contradictory character of the testimony the written contract shown by the charter must prevail. The fact that the charterer selected an agent, and throughout the transaction insisted on his recognition by the ship, is inconsistent with the allegation that he agreed to the appointment of Wesenberg & Co.; and the fact that tho
The freight earned, as we have seen, was $7,632.80. Of this $5,675.95 were paid to the ship’s owners directly by Hempstead through draft. Of the balance $225 has been withheld as compensation for wharfage. It is objected that the vessel was not compelled to provide a wharf, and that this charge is therefore improper. To make the delivery required by the charter however, it A?as necessary to enter the dock connected Avitli the Avharf. Although this AA’as the private wharf of Mr. Spreckels, the testimony shoAvs that wharfage is alAA’ays charged under such circumstances, and justifies a conclusion that no difference exists as regards the charge Avherc the wharf is not used if the dock is. The vessel’s presence excluded its use by others, and the charge is consequently the same as if it were employed. Such is the usage of this port and the ship must be held to a knowledge of it. Mr. Spreckels testifies that the amount claimed is the usual charge, and there is no suggestion that it is excessive. The sum of $42.07 retained for shortage of cargo, cannot be al-io Avcd. The ansAver expressly admits receipt of the entire amount shipped. The third paragraph of the libel avers delivery of “the Avhole cargo taken on board” and the answer says “the averments of the third paragraph of the bill are true.” Besides I find nothing in the evidence to sustain the allegation. The sum of $190.82 retained as commission on freight is distinctly authorized (as ayo have seen) by the charter. The sums of $5 and $1.40 fees for entrance at the custom-house should not