115 F. 705 | 2d Cir. | 1902
The district judge has written a careful and most ^exhaustive opinion, and, inasmuch as we concur with his conclusions (except on a point hereinafter referred to), it will be unnecessary to-rehearse the facts here. The Helios did not find as safe a harbor at Hogsty Reef as she would have found at Tompkinsville, in the-upper bay of New York, but we are satisfied from the proof that the harbor was what the parties must have expected it would be, and was in entire conformity to the terms of the charter party. No movement of the tide imperiled her, nor prevented her lying always afloat. She was exposed to more risks than she would have encountered had she remained tied up to the wharf in her home port, but risks were to be expected. They were expected; they were in the minds of both parties; they were so thoroughly appreciated by the master that he would not leave on the voyage until he had obtained from the libelants an absolute guaranty against those risks of the ship’s safety to her full value. In view of this last circumstance, the conduct of the master in abruptly leaving the reef before the term of the charter had expired was especially reprehensible. We concur with the district judge also in the conclusion that the language of the charter, “one round trip to the West Indies, of about six weeks,” cannot be changed so as to cover the enterprise of salving the whole cargo; but we do not concur in the further conclusion that, because the owners accepted the stipulated per diem for the whole eight weeks, they are estopped from relying on this language of the charter party. The evidence, however, warrants an extension of the term to ten days beyond the six weeks. The difference is four days only, in which proportion the damages should be reduced.
The respondent disputes the allowance of damages for one day lost at Mole St. Nicholas because the ship went there to send a telegram asking to terminate the adventure, and for some nine or ten days at Havana, because that delay was occasioned by waiting for the coming of underwriter’s agent. But, if the master had followed out the contract, he would not have had to ask unnecessary questions by telegraph; and, if he had kept the ship at the reef, where it was his duty to keep her under the contract, the presence or absence of an underwriter’s agent in Havana would have made no- difference.
The cause is remitted to the district court, with instructions to reduce the damages in the proportion that four days bears to the amount. In all other respects the decree is affirmed, but without costs to either side as against the other.
