Myers v. The Unionist

48 F. 315 | E.D. Va. | 1891

Hughes, .1.,

(after stating the fads.) The first claim of charteiers is of .€10 sterling per day for two days alleged to have been saved from the 14 allowed them by the charter for loading, which days were to commence on the morning after the steamer’s readiness to receive cargo. The notice of readiness was given on the 25th December, a general holiday; and the contention of libelants is that, this being dies non, the legal day of readiness was the 26th December; that the loading days did not commence until the 27th; that hence they had, excluding Sundays and holidays, until the evening of the 13th January for the loading; and that, inasmuch as this was completed on the evening of the 11th January, they are entitled to dispatch money for two days. The respondent contends that, although the charier provides that loading need not be done on holidays, yet it contains no provision that notices may not be given on holidays.

He contends, further, that inasmuch as the charter provides that, “ should the steamer not be ready for cargo on or before the 25th December, 1889, the charterers may cancel the charter,” this instrument itself made the 25th December an operative day for the purpose of the notice. There is undoubtedly some force in this latter contention; but it must be considered that the object of giving charterers one day to begin the loading of the vessel after notice of readiness is received is to afford them time to get their cargo together, and to engage laborers to do the work of loading. Respondent’s contention becomes inadmissible in the present case. Of all days in the year, Christmas is the one in which a charterer would be most unable to make preparation for loading a ship on the day following. The reason of the rule giving a day for preparation applies, therefore, more imperatively in the present than in other cases, and I think the libelants are entitled to two days of dispatch money.

The other claim of libelants is for £273. 15s. as an amount that would have accrued to them as freight on a hundred head of cattle which the charter gave them an option to ship, but which they were unable to ship, because of their inability to obtain the first-class insurance on cattle which they claim was guarantied to them by a clause of the charter. The charter-party itself is in form a printed sheet, gotten up and used by the charterers in their business in Norfolk. This printed formula contemplates and provides for only such cargo as is carried in the spaces of the ship where she “has usually carried cargo,” and this printed sheet embraces a clause in print providing that “first-class insurance is guarantied by owners of the steamer.” Cattle cannot be shipped in the “spaces where the steamer has usually carried cargo.” They can be put nowhere except on deck, on which sheds of wood have to be constructed for their comfort and safety. On a margin of the copy of the printed formula which became the contract between charterers and ship-owners in this case, there was written with pen and ink a clause giving charterers the option of shipping cattle on deck, under conditions which need not be recited. It is proved that several insurance companies in the United States and Canada were applied to for policies on cattle to be shipped bjr charterers on this ship on this voyage in the depth of winter, and that, all of them refused for reasons which did not bring in question the seaworthiness of the steamer or allege any distrust of her on any ground. The testimony also shows that shippers and experts in sucli matters do not regard the usual guaranty of first-class insurance embodied in charter-parties as including deck cargo, especially cattle, unless express language is employed to that effect. It is evident to me from the proofs in this case, and the circumstances under which this contract was made, that the minds of the parties to it did not meet in respect to insurance of a deck cargo of cattle, and that it would be inequitable and unreasonable for the court to hold the ship-owners responsible for the failure of the charterers to obtain first-class insurance upon a deck-load of cattle for a voyage across the Atlantic ocean in mid-winter. I will sign a decree allowing two days of dispatch money to libelants, and rejecting their claim of compensation for the loss of freight on cattle which they had the option of shipping.