202 F. 181 | 2d Cir. | 1913
The libelant and respondent entered into the following contract;
“McAllister Steamboat Company,
“General Offices, 109-111 Broad Street, New York.
“June 22d, 1911.
“We hereby agree to rent to you our pump dredge Irving T., now located at Port Washington, L. I., for work in connection with the floating of the steamer Penobscot on the Hudson river, New York state, on the following condition:
“(1) Subject to a release from the Port Washington Estates of 30 Church St., New York City of the North Atlantic Dredging Company’s contract without prejudice to the North Atlantic Dredging Company’s contract with the Port Washington Estates.
“(2) The rate of hire per day of 24 hours is to be two hundred and twenty . ($220.00) dollars.
“(3) That the North Atlantic Dredging Company shall furnish the dredge Irving T. and a crew of eighteen men and pay and board same during the period of hire.
“(4) That all towing and individual expenses shall be without costs to the North Atlantic Dredging Company, including to and from where dredges is now working.
“(5) That all fresh watér and coal required from the time the dredge leaves Port Washington until it is returned to Port Washington shall be furnished without cost to the North Atlantic Dredging Company.
“(6) That a payment of one thousand ($1000.00) dollars shall be made to the North Atlantic Dredging Company upon the dredge’s arrival at the site of the work in the Hudson river.
“That should the rental of the dredge at the price of two hundred and twenty ($220.00) dollars a day be less upon its delivery at Port Washington than one thousand ($1,000.00) dollars for the time of said rental the North Atlantic Dredging Company shall make rebate to McAllister Steamboat Company.
“Should the time of hire consume more than one thousand ($1000.00) dollars at the above rate per day the McAllister Steamboat Company shall pay to the North Atlantic Dredging Company upon the dredge’s return to Port Washington any and all moneys accruing above the one thousand ($1,000.00) dollars aforesaid. North Atlantic Dredging Co.,
“Thos. O’Connor, President.
“The McAllister S. B. Co., '
“Per Jas. P. McAllister, Treas.”
The Irving T., having obtained a temporary release from the contract on which she was engaged at Port Washington, started June 22d, 7:30 p. m., to get ready to go to the Penobscot, and left the next morning in tow of the tug J. P. McAllister, belonging to another company, but sent by the respondent. June 25th, at 2 a. m., she arrived at the Penobscot, left there by respondent’s orders after working three days, in tow of the same tug, June 28th at 8:30, .arrived at Port Washington July 1st, at 2:30 a. m., and resumed work on her interrupted contract at 12:30 p. m.
The next question is whether the dredge was fit for.the work for which she was chartered, and whether the libelant either im
The parties, “for the purpose of fixing the amount'of damages in the final decree” and to avoid a reference, stipulated that the balance of charter hire due was $741.68. The libelant contends that, an appeal in admiralty being in this circuit a new trial (Munson S. S. Co. v. Miramar S. S. Co., 167 Fed. 960, 93 C. C. A. 360), it may recover more, because the sum stipulated for does not cover the hire day by day from the time the dredge got ready to leave Port Washington until she resumed work there. This might be so, but for the libelant’s stipulation, in the face of which it cannot recover more than the amount it has agreed upon as the damage.
The libelant also claims for damages to its pontoons while working at the steamer, which the District Judge rightly disallowed as not being caused by the charterer.
The decree must be modified, by striking if out, and, as so modified, is affirmed, without costs of this court.