Poland v. Maryland Coal Co.

WAITE, Circuit Justice. On May 2d, 1874, the schooner Lizzie Heyer, then being in the port of New York, was chartered by the respondent “for a series of voyages from Georgetown, D. C., to Weymouth, Mass., below all bridges, from the second day of May [912] «until tile first day of November, 1874, charterers to have the privilege of sending the vessel two trips to Boston in lieu of two to "Weymouth.” The respondent engaged “to provide and furnish to the said vessel a full and complete cargo of coal, under deck, each trip, and to pay * * *■ for the use of said vessel, during the voyage aforesaid, two dollars and sixty-five cents ($2.65) per ton, of :2,240 lbs., delivered at Weymouth. Freight payable on delivery of cargo. If to Boston, two dollars and fifty cents ($2.50) per ton, and three cents per ton per bridge.” The lay days allowed by the charter for loading -and discharging were “at the rate of one day, Sundays and legal holidays excepted, for every hundred tons of cargo,” commencing twenty-four hours after the arrival of the vessel in port, and notice thereof to the respondent, or its agents or consignees. The •carrying capacity of the vessel was upward -of six hundred tons. Under this charter the vessel made one voyage to Boston, three to Weymouth, and one, by special arrangement, between Baltimore and Weymouth. She sailed from New York to Georgetown, May 3d, and arrived May 10th; was loaded, and sailed for Boston, May 13th, arriving there May 24th; sailed for Georgetown, May -30th, where she arrived June 0th; sailed for Weymouth, June 10th, arriving June 19th; sailed again for Georgetown, July 1st, and ,-arrived July 8th; sailed again for Weymouth, -July 15th, and arrived July 20th; sailed for Georgetown, July 31st, and arrived August 7th; sailed for Weymouth, August 9th, arriving August 19th. From Weymouth, by special agreement, she then made a voyage to Baltimore and back, sailing from Wey-mouth, September 4th, and arriving at Baltimore, September 8th, and sailing from Baltimore, September 10th, and arriving at Wey-mouth, October 1st. She then sailed from Weymouth, October 10th, and arrived at •Georgetown, October 19th. On her last arrival at Georgetown, she reported to the respondent, and demanded a cargo under the charter. At that time the ruling market rate of freight to Boston was one dollar and fifty cents per ton. The respondent offered to put a cargo on board, under the charter, for 'Boston, if the vessel would agree to deliver it at that place by November 1st. This •agreement the libellant refused to make, but be offered to receive a cargo under the charter and enter upon the performance of his voyage. The respondent then offered to load ber, and if she arrived in Boston by November 1st, pay the charter price, but, if after that date, the market price. This also was refused by the libellant. On October 24th, the respondent offered to load the vessel for Boston at one dollar and sixty cents per ton, "“without reference or prejudice to claims of ■either party under charter, leaving claims for separate settlement, the captain to stipulate.” This proposition was accepted October 2Gth. She was accordingly loaded under this arrangement, and sailed October 27th, arriving in Boston November 26th. She was detained on her voyage ten days at Hampton Iioads, on account of an- accident to her captain. The freight actually paid under this last shipment was $961.60, while, at the charter rate, it would have amounted to $1,502.50. This libel was filed to recover the difference, being $540.90. The charter party being for “a series of voyages,” the libellant could not be required to receive, or the respondent to furnish, a cargo under the charter, unless there was reasonable cause to believe that the voyage could be completed, in the usual and ordinary way, by November 1st. The respondent could not be required to furnish a cargo, except at its own convenience, during the lay days allowed by the charter. After allowing the respondent such time as it was entitled to, under the charter, for loading the vessel, there was no reasonable probability that a voyage to Boston could be completed by November 1st. The libel should be dismissed. See Poland v. Maryland Coal Co. [Case No. 11,244] 8 Ben. 347.