98 F. 996 | E.D. Pa. | 1899
In December, 1895, Dumois & Oo., who are importers and wholesale dealers*in foreign fruits, chartered the steamship Moringen for a period of five months from March 15,
On May 27(h, Guareh & Co. consigned to Fox a cargo of bananas, the bill of lading stating that freight was to be paid “as per charter party”; and on the evening of June 8th the ship arrived at Philadelphia, and cast anchor in the Delaware river, opposite the dock at which the fruit was to be unloaded. Fox sent out a tugboat to bring the vessel in, but the captain of the steamship refused to allow his boat to be docked, declaring that on his way up the river he had been notified by Dumois & Co. not to dock the ship until further order. At this time two installments of hire wTere unpaid. Not long before the vessel arrived, there had been some controversy about these arrears between Fox and Dumois, the result of which had left the charterers in some doubt whether payment would be made. In consequence of this doubt, they gave the captain the order above referred to, intending to enforce payment thereby, but they did not inform the captain why the order had been given, nor what its object was. lie carried out the order without giving any reason, and without making any demand for money; but Fox correctly supposed that the difficulty was caused by his failure to pay the last two installments of hire, and accordingly, between 8 and 9 o’clock of the same evening, he offered the captain two certified checks, each for §957.58, — this being the exact amount of a semimonthly installment. The checks were properly drawn and indorsed, and would have been paid upon presentation at the Camden National Bank in this city. The captain made no objection on the ground that checks, and not cash, were offered, but refused to accept payment for the express reason that his orders were positive, and that he had no authority to receive the money. Fox thereupon gave notice that another ship, carrying bananas consigned to Dumois & Co., liad just arrived, and would supply (.he local market, to his own injury, if lie were not allowed a fair chance to compete;
Upon this state of facts I think the libelant is entitled to recover for such injury as may have been done. The terms of the contract between Dumois & Co. and Guarch & Co. are sufficiently clear. The latter Arm did not have control of the ship under a subcharter, -but they-were freighters, having a right to load the ship upon the payment of a speciAed sum. But the amount of this sum was not to be determined by the quantity of cargo carried; neither was payment to be made only after the arrival of the cargo, and at the port of destination, but the hire was a Axed sum, whether much or little was carried; and payment was to be made semimonthly in advance, and the place of payment was the city of Yew York. I think it is well settled that under such a contract Dumois & Co. waived the right to hold the cargo for arrears of hire. Having agreed that the hire should be paid semimonthly in advance, and at a particular place, they gave up the inconsistent right to demand payment elsewhere and at other times. The point has been expressly decided, both in England and in the United States, and need not be further discussed. An examination of the subject, both upon principle and authority, will be found in Raymond v. Tyson, 17 How. 53, 15 L. Ed. 47; How v. Kirchner, 11 Moore, P. C. 21; and Kirchner v. Venus, 12 Moore, P. C. 361.
The case will be referred to a commissioner, to determine wffiat damage, if any, has been suffered by the libelant, and to report an appropriate decree.