122 F. 218 | 5th Cir. | 1903
In Genoa, Italy, on the i8th of November, 1898, a charter party was entered into between Victor Jurvelius.. master and agent of the Russian ship Amelie, of the 'burden of 495 tons register or thereabouts, then-lying at Marseilles, bound for a voyage to Rio Janeiro with.cargo, and Messrs. Rosasco Bros., of Pensacola, Fla., styling themselves “agents for charterers,” but with no principal disclosed, providing that the said ship, as soon as discharged at Rio Janeiro, should proceed to Pensacola, Fla., and there load from factors of said merchants or agents a cargo of lumber, and thence proceed to any safe port in the Mediterranean not east
At this stage of the case the parties entered into further negotiations, resulting in an agreement as follows:
“Pensacola, 12th July, 1899.
“It is hereby agreed -between Victor Jurvelius, master and owner of the Russian bark Amelie, and W. S. Keyser & Co., owners and shippers of the cargo now laden on the said bark, as follows:
“1. The master will sign bills of lading providing for delivery of cargo now on board at port of Valencia, Spain, same as presented by Mr. Rosasco.
“2. All actions pending at Pensacola stand dismissed.
“8. The eessor clause of the charter party is waived.
“4. No claim or lien on the cargo for demurrage or detention shall be insisted upon.
“5. The master of said bark may bring an action in personam at Pensacola for the recovery of any damages he may in such action be able to establish for demurrage or detention; none being admitted.
“6. The making of this agreement is not to be taken as an admission that W. S. Keyser & Co. had no right to order said bark to Castellón with said cargo, or that the suit they brought against said bark and cargo was improperly brought; neither shall the making of this agreement be an admission by the master and owner that Castellón was a safe port, within the meaning of the charter part.
“7. The true intent of the parties hereto is that, in any suit brought the parties are free to insist upon any contention that they might have insisted upon had this agreement not been made, not herein expressly waived.
“8. It is further understood and agreed that the entering into this agreement is to be taken and accepted as a final and complete settlement of all differences existing between the parties hereto, except the claim of master of ship for demurrage and detention above referred to, but no differences are waived or settled to the extent of depriving either party of the right to insist upon them in the prosecution or resistance of such claim.
“[Signed] Victor Jurvelius.
“[Signed] W. S. Keyser & Co.”
Under this agreement a bill of lading was executed pending suits dismissed, and thereupon Victor Jurvelius, the master of the Amelie, exhibited his present libel against Keyser & Co., setting out the original charter party, charging that Keyser & Co-, were the original charterers, averring that Keyser & Co. did not deliver cargo within the 12 days mentioned in the charter party, but so delayed delivering cargo that they became responsible under the terms of the charter party for 6 days’ demurrage at the rate of four pence sterling per net registered ton, and also averring that through their failure to name a safe port as to destination of the cargo within the terms of the charter party the said Amelie was detained from the 17th day of June to the 12th day of July, a period of 25 days, to the damage of the ship $1,500, for which demurrage and detention he claims judgment.
It follows from this that the stipulations of the original charter party as to specified demurrage and amount of demurrage did not conclude Keyser & Co. as to their liability for detention. As shippers of cargo, however, with a supposed knowledge of the original charter party, they were bound, within a reasonable, time after cargo was aboard, to name a safe port in the Mediterranean for the delivery of the cargo; and, if they failed in this, they were responsible for the detention of the ship necessarily resulting. See Maclachlan, p. 371. They named as the port of delivery Castellón, Spain, which the master claimed was not a safe port, and thereupon refused to sign the bill of lading. The evidence exhibited in this case establishes that therein the master was within his right, as Castellón was not a safe port within the meaning of the charter party. It follows that for the detention of the ship from the 16th day of June to the 12th day of July Keyser & Co. were responsible.
It seems that on the 30th of June Keyser & Co. offered to accept bills of lading “to Castellón, or as near thereto as the vessel can get and discharge (always afloat).” This was met with the counter proposition to sign bills of lading “to Castellón, or as near thereto as ship can safely get and safely lie and discharge.” These propositions were under discussion several days, until on the 6th of July the master notified Keyser & Co. that he would not sign bills of lading at all for Castellón. It may be that, if Keyser & Co. had stood upon the proposition to accept bills of lading “to Castellón, or as near thereto as vessel can safely get and discharge (always afloat),” we might, under the evidence in this case, find that thereby they had named a safe port within the meaning of the charter party; but the proposition seems not to have been insisted upon, and, the matter having ended in a compromise settlement on the 12th day of July fixing Valencia as the port of discharge, we feel compelled to take this latter date as the end of detention in finding the number of days the Amelie was detained through the fault of shippers of cargo.
Damages for this delay—25 days—should be adjudged against Keyser & Co. The rule of damages in the case of improper deten
There is‘some contention on the part of Keyser & Co. that no recovery can be had against them in this action, because this suit is brought for a breach of the charter party, to which they were not parties; and the appellees claim that the assignments of error are not sufficiently specific, under our rules, to allow consideration of the material question's in the case. In admiralty we do not always hold to a great nicety in pleadings, and as in this case the libel, although charging Keyser & Co. as charterers, sets out the facts in the case, and the answer and evidence meet the real issues, and the assignments of error point out the questions for this court, the above contentions are not well founded.
There are some other matters discussed in the briefs, but we think they need no specific ruling.
The decree of the District Court is amended by reducing the amount allowed the libelant below to $750, and, as thus amended, the decree of the District Court is affirmed. Appellant to recover the costs in this court and to pay the costs in the District Court.
2. Demurrage, see notes to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.