The Ask

HOUGH, District Judge. The claim for loss of bananas becomes academic, through the unexpected testimony showing that libelant had lost nothing by the destruction thereof. The Habil (D. C.) 100 Fed. ISO. But my view of that question may render clearer the disposition of the rest of the case. This is not an instance of premature cutting of perishable fruit, as in The Curlew, 55 Fed. 1003, 5 C. C. A. 386, and The Disa (D. C.) 153 Fed. 322. These cases recognize the duty on the charterer’s _part to give timely and reasonable notice of inability to perform his expected contractual obligation. As soon, therefore, as the Ask had reported and said nothing as to such actually existing inability, the charterer had full right to expect transportation of his [681] cargo; and it was well known to both parties that that cargo consisted of bananas, that would soon rot after cutting, if not removed from the tropical climate. The right above recognized is not expressed in the words of the charter party, but grows out of the relation of the parties. It could hardly be contended that the ship might conceal her known defects, load her cargo, and then remain in port making repairs, with no greater liability than temporary loss of charter hire; yet to that extent must an argument go which denies all liability for failure to communicate known disabilities at a time when the other party has a right to presume fitness and upon such presumption is changing his own position for the worse. Whether the liability is in rem, as well as personal, need not be considered. This cause of action, however, having been swept away by the evidence, there is left the inquiry whether the failure to inform the charterers of the Ask’s unseaworthiuess, with the result that the last cargo of the Nipe Bay crop could not be transported upon her, afforded any reason for throwing up the charter. This query is very different from that relating to the loss of the cut bananas. The charter party did not engage the Ask to carry that cargo or none, nor is there anything in the evidence showing on the shipowner’s part any knowledge or duty to know that with the cutting of November 1st the banana crop was ended. Laying aside all questions arising from the negligence and silence of the engineer and the consequent misinformation of the captain, the material facts are simply these: The Ask broke down and required temporary repairs. When such repairs were made she could carry 60 pounds of steam. For such contingencies the charter party provides a stipulated measure of damage — i. e.f loss of charter hire— and no other measure is permissible, unless a covenant could be found in the contract obliging the vessel to transport the last cargo of the season from Nipe Bay, and no other. It is too plain for argument that no such contract was made. It follows that the libelant should have a decree for the amount tendered at the beginning of the trial, viz., §259. If, however, libelant thinks that under the principles above laid down more than that sum is recoverable, it may take a reference, all costs after tender to be on the libelant unless more than $259 be recovered. If the tender be accepted without reference, costs of the trial must he paid by libelant. On motion to amend libel, made after testimony closed and case submitted and argued. HOUGH, District Judge. The amendment proposes to state that libelant at the times in the libel set forth was trustee for the Dumois Nipe Company, that the bananas in question were intrusted to libelant by said company, and that libelant “is accountable to said Dumois Nipe Company for the same.” “Amendments in matters of substance should not be allowed on the hearing, unless the justice of the case requires it, and then to conform to the proof; and in no case should an amendment be allowed on the hearing which would change the entire cause of action.” The Hábil (D. C.) 100 Fed., at page 123. Even more stringently is the rulé enforced after hearing, both in admiralty and eq [682] uity. The Thomas Melville (D. C.) 31 Fed. 486; Gubbins v. Laughtenschlager (C. C.) 75 Fed. 615. These rules have recently been restated in our own circuit in The Minnetonka, 146 Fed. 509, 77 C. C. A. 217, and The Hamilton, 146 Fed. 724, 77 C. C. A. 150. The amendment here prayed for is most substantial. I incline to think it changes the cause of action, and am sure it does not conform to the proof. If libelant had originally pleaded that the charter party was made by it as trustee for the Dumois Nipe Company, the contract, nevertheless, would have been that of libelant, and not that of its cestui que trust; and, though the fruits of any action for breach thereof would have inured to the benefit of the Dumois Nipe Company, such breach, if usable as a basis for action, must have been an infraction by ship or owner of the contract made with libelant, and not with its cestui que trust. If, therefore, the Cuba Planters’ Company were a trustee, it alone could sue for breach; but that company suffered no damage, as positively sworn to by Mr. Dumois. In truth, the testimony already taken shows that it was not a trustee, but merely a selling agent, as also clearly sworn to; and from these vital statements Mr. Dumois cannot be permitted to depart, or contradict his own testimony by trying to show, in the language of the amendment, that libelant “is accountable to said Dumois Nipe Company for the” bananas in question. The reason for a trustee being entitled to recover damages which do not fall upon his private purse is that he has the legal title to that which is injured; but it is impossible to read Mr. Dumois’s frank statements, made in entire ignorance of the legal effect thereof, without feeling that libelant never had the legal title to said bananas. It is thus clear that what this motion really seeks is, not to make the pleadings conform to existing proof, or merely to change the title or capacity of the libelant and recover on testimony already adduced (The Hamilton, supra; Morgan v. Hal'berstadt, 60 Fed. 592, 9 C. C. A. 147; Van Doren v. Pennsylvania R. R. Co., 93 Fed. 260, 35 C. C. A. 282), but first to change the pleadings by putting the cause of action into the ownership of another legal entity, and then endeavor to vary or explain away material evidence by further testimony. Such a proceeding I think entirely without warrant or precedent and beyond the power of any court. The motion to amend is therefore denied.