48 F. 921 | S.D. Ala. | 1891
The charter-party out of which this suit has arisen, and upon the construction of which the rights of the parties thereto are to he determined, in substance provides:
“That the vessel chartered shall proceed to Mobile, and there load from the charterers, at such anchorage or dock as they may direct, (whore the vessel can be afloat, * * *) a full and complete eargo, to consist of sawn pitch pine deals under and upon deck, not exceeding what she can reasonably stow or carry, * * * which cargo the charterers agree to ship, and, being so loaded, shall proceed to Rio de Janeiro, * * * at the rate of $15 per one thousand superficial feet, ” etc.
It seems to me clear from the terms of the contract that it was tho intention of the parties that the vessel was to load at Mobile, and not partly at Mobile and partly in the lower bay, as she did do, owing to her heavy draught, and especially in view of the principle that it is the peculiar business and duty of the ship-master to kno\V what ports his vessel can enter and what anchorages are safe. The Gazelle, 11 Fed. Rep. 431. Under the terms of the charter-party, the, ship was not bound to load a part of her cargo at Mobile, and then take on board, outside the bar of Mobile, a part of the eargo she could not safely load at Mobile and cross the bar with. Bhe could have loaded such a cargo as she could
My opinion, therefore, is that, under the terms of this charter-party, the vessel was chargeable with the lighterage, irrespective of any custom, and that, according to the custom of the port, she was so chargeable. In either case the libelant is not entitled to recover, and the libel must be dismissed at his cost.