208 F. 862 | 9th Cir. | 1913
In support of wliat is alleged touching the nature of the craft, it is shown by the testimony of H. C. Cutting, president of the libelant company, that her dimensions are length 75 feet, beam 30 feet, and draws 4y2 feet of water; .that she has a srtperstructurc containing machinery, pilot house, galley, messroom, and cabin accommodations for crew. The witness further testifies that she “operates afloat and not otherwise” ; that “she was built for the purpose of dredging a ship canal at Richmond and cleaning her out — her occupation is to clean out canals
The case of North American Dredging Co. v. Pacific Mail S. S. Co., 185 Fed. 698, 107 C. C. A. 620, decided by this court, is in such close analogy to this, as it pertains to the character of the dredger in controversy, as to be controlling here. Without discussing the cases therefore or attempting to analyze them, we hold that the craft in question is the subject of admiralty jurisdiction.
Paragraph 8 of the charter party contemplates an extension of the terms of the lease upon the Oakland 'at the option of the Richmond Company, provided the Standard Company shall not have found any work for the dredger to do-, the extension to run until the Richmond Company shall have completed the filling therein designated, “or until the party of the first part (the Standard Company) shall have given the party of the second part (the Richmond Company) fifteen (15) days’ notice of the termination of this agreement.” This gave the Standard Company the option to terminate the agreement notwithstanding the Richmond Company had not yet completed the filling specified. The ninth paragraph then specifically sets forth how and in what manner the Standard Company might terminate the agreement if during the term or any extension thereof the Standard Company should secure work for the Oakland. By this paragraph the Standard Company was accorded an option either to require the Richmond Company upon giving 15 days’ notice to that effect to operate the dredger Oakland 24 hours each day until the specified filling was completed, or to terminate the lease of the dredger Oakland by giving also 15 days’ notice of such termination and -returning the dredger Richmond No. 1. The Standard Company chose to exercise the option for a termination of the lease of the Oakland, for it gave the notice demanding her return,
It also follows from these considerations that the libelant was entitled to recover $50 per day for the retention of the Richmond No. 1 up until the 3d clay of February, 1911, when the boat was tendered back by the Standard Company, and was refused by libelant. It could not recover more than this because it was its duty to accept the dredger, the same being as we find on a careful review of the testimony, in a condition contemplated by the charter party when return should be made.
We are also of opinion, in view of the whole case, that the Standard Company is not entitled to anything as reimbursement for expenses of a caretaker after tender of the Richmond No. 1 to libelant.
These Atlas gas engines never became or were the property of the Standard Company, and as a legal conclusion we find that they never became a part of the Richmond No. Tas equipment or otherwise. They were temporarily installed only to take the place of the Sampson gas engines for the time being, and the Standard Company was entitled to detach them and reinstall the Sampson engines.
Nor do we think that the terms of the respondent’s bond require it to return the dredger to libelant with the Atlas gas engines as a part of its equipment. True the bond requires the return of the dredger “in the same condition in which she is now,” but it furthermore requires that the respondent “shall abide by and perform the decree of this court,” and, the decree of the court being that the Atlas gas engines were not a part of the equipment of the dredger which the respondent was bound to return to the Richmond Company by virtue of the stipulations of the charter party, the bond was satisfied when the conditions of the charter party were complied with.
This leaves but one other question for consideration, which is whether the District Court erred in sustaining the exceptions to the second and fourth claims of damages in the supplemental libel. We think there was no error in that regard. The charter party by legal intendment covers the character of damages sought to be recovered by these claims, when it is construed as we have construed it that the stipulation for the payment of $50 per day was intended as liquidated damages for the wrongful withholding of the dredger from libelant.