250 F. 67 | 5th Cir. | 1918
The appellant, the owner of the Norwegian steamship Stavangeren, filed its libel in admiralty against the
The case was tried on an agreed statement of facts; which disclosed the following :
The ship had completed loading at Omoa a cargo of bananas and cocoanuts and at 12:30 a. m. of Friday, December 11, 1914, had started to leave that port for New Orleans, when, shortly after casting off her moorings, her rudder post was broken as a result of the engineer’s failure properly to comply with an order signaled to him by the master. This necessitated the making of repairs, with the result that the ship did not leave Omoa until 11 p. m. Sunday, December 13, 1914. It arrived" at New Orleans at 3 p. m. of December 18th, whereas it probably would have arrived there at about 3 p. m. of December 15th, if it had not met with the mishap at Omoa. Persons employed by the charterer assisted in making the required repairs.
“XII. It is agreed that, if any sum is due to respondent and cross-libelant for work done in repairing the vessel, the value of such work is fifty dollars ($50.00). * * * ”
“XIV. While the ship was undergoing repairs at Omoa, from 12:30 p. m. of December 11, 1914, to 11 p. m. pf December 13, 1914, 2 days and 22y2 hours’ hire of the ship was deducted by respondent and cross-libelant, in accordance with the charter party.
“XV. Cross-libelant had the entire reach of the ship, and all the fruit shipped on the vessel was the property of the cross-libelant.
“XVI. As a result of the accident to the ship, cross-libelant was damaged in the sum of $4,104.14, which includes $50 mentioned in article XII hereof.”
What has been set out includes all that was before the court bearing upon the claims to damages asserted by the' cross-libel. There was judgment, under the libel, in favor of the appellant and against the appellee for $693.40, with 5 per cent, per annum interest from judicial demand until paid, and costs of court, and judgment under the cross-libel, in favor of the appellee against the appellant, in the sum
“3. Tliat in tlie event of loss of time from deficiency of men. or stores, breakdown ot machinery, or damage preventing the working of the steamer for more than 24 hours at sea, the payment of hire shall cease until she be again in an efficient stale to resume her service, redelivered at place of accident, or allowance therefor; and should she in consequence put into any port other than that to which she is bound, the port charges and pilotages at such port shall be borne by steamer’s owners. Also If any loss of time from crew or stores not being on board in time, or from repairs to hull and machinery, which are for owners’ account, not being complete after cargo and coals are on board and hour of sailing has been fixed by charterers, and notice given to captain, the time is lost to the owners’ account. Steamer to be allowed one to two days every four months for cleaning boilers without loss of hire.”
“19. That, should vessel be lost, any hire paid in advance and not earned (reckoning from the date of her loss) shall be returned to the charterers with 6 per cent, interest from date of loss; the act of God, the king’s enemies, lire, restraints of princes, rulers, and people, and all other dangers and accidents of the seas, rivers, machinery, boilers, .and steam navigation throughout this charter party, always excepted.”
It seems that the only subject dealt with in clause 19 is the obligation of the owner, in the event of the loss of the vessel, to repay, with interest, what had been paid in advance and was not earned, and that this provision has no hearing on the question of the owner’s, liability to the charterer for the vessel’s loss of time, whatever may be the cause of it. Clause 3 deals specifically with that subject. It seems that that clause so provided for the case of loss of time from damage, including such as is attributable to negligence of the owner’s engineer, preventing the working of the vessel for more than 24 hours at sea, as to make the cessation of hire, until the vessel is again in efficient state to resume her service, the agreed compensation the charterer was to be entitled to for a loss of time so occasioned, and that the appellee, having received the benefit of a compliance with that provision, was not entitled to anything more because of loss of time so caused.
But it may be assumed, without being decided, that neither of the provisions quoted stands in the way of the appellee’s recovery of any damages claimed in the cross-libel. It failed to show the existence of a state of facts entitling it to recover from the appellee the difference between what the cargo sold for aiid what it would have brought if most of the advance orders for parts of it had not been canceled because of the delayed arrival. The appellant hired the vessel, manned by its officers and crew, for a specified time, to be employed, on conditions stated, in carrying lawful merchandise and passengers between any safe ports in stated parts of the world, as directed by the chárterer or its agents. It did not undertake to make the particular voyage in which the delay in question occurred. It did not obligate itself to deliver the cargo of bananas and cocoanuts at New Orleans within any stated time.
Furthermore, the losses due to the cancellation of advance orders
The decree rendered on the cross-libel is modified, by making the principal sum adjudged in favor of the appellee against the appellant $50, instead of $4,104.14, and, as so modified, it is affirmed, with costs against the appellee.
Modified and affirmed.