The Eros

• Decision Date: 30 October 1916
• Citation: 241 F. 186
• Parties: THE EROS.
• Court: U.S. District Court — Eastern District of New York

241 F. 186

THE EROS.

United States District Court, E.D. New York.

October 30, 1916

Duer Strong & Whitehead, of New York City (Selden Bacon, of New York City, of counsel), for libelant.

Convers & Kirlin, of New York City (J. Parker Kirlin and Charles Stewart Davison, both of New York City, of counsel), for claimant.

VEEDER District Judge.

This is a libel for breach of a time charter of the yacht Eros to the libelant, Eugene Higgins, by the owner, Baron Henri de Rothschild, whose interests are asserted in the name of the master, Evrard, as claimant. The charter was entered into at Paris, May 12, 1914, between Baron de Rothschild, a French citizen, resident in Paris, the owner, and Eugene Higgins, an American, also residing in Paris. The yacht was of French register and flew the French flag. She was chartered to the libelant originally from July 20, 1914, to February 20, 1915 at a monthly rate of . . . 1,428, a total of . . . 9,996. The charter party provided that the yacht was to be delivered at Marseilles on July 20th, 'and proceed at daylight that day for New York, so that the charterer may go on board at New York and get under way not later than noon on the 4th day of August, 1914. ' The charterer undertook 'to pay all running expenses, consumable stores, including all such articles as coal, oil, waste, etc., harbor dues, and pilotage, and to feed the captain, stewards, and cooks. ' The owner undertook to maintain the yacht in full working order and repair during the whole period of hire, and also 'to provide, pay, feed, and clothe a sufficient crew consisting of, say, 39 men in all, including stewards, cooks and wireless operator. ' Among other provisions were these:

'The captain shall have full control of the yacht, and shall be sole judge of the technical questions arising in connection therewith, as well as sole judge of the safety of the port in which he shall be asked to go or of the waters in which he shall be asked to navigate. But charterer, on the other hand, shall be entitled to the same attention as though he were the owner in respect of all matters other than those of a technical nature or than those concerning the safety of the yacht. Should the yacht be lost or damage occur not repairable within fifteen (15) days the charter price shall be abated from the time of such damage and from thenceforth this agreement shall cease.'

The charter party expressly provided:

'This agreement to be construed according to English law.'

And the instrument concluded with the provision:

'Should any dispute arise concerning this agreement same shall be referred to the arbitration of an arbiter mutually chosen or each party may appoint an arbiter and these two arbiters shall have liberty to appoint a referee, whose decision shall be final and binding on both parties.'

By a supplemental agreement, set out in the libel, made May 22, 1914, the owner, in consideration of a payment of . . . 340, undertook to have the yacht sail from Marseilles on the 10th of July, instead of the 20th, 'so that she may arrive at New York and be properly prepared for the charterer to go on board when he arrives there by the steamship Vaterland on the morning of the 29th of July. ' The yacht sailed from Marseilles on the 10th of July, and, after some heavy weather, reached New York on July 27th. There was, after leaving the Azores, some leaking of the boilers, which resulted in an exhaustion of the fresh water supply and some use of salt water. The ship was surveyed and repaired by August 1st. After steam was gotten up, on August 2d, there appeared again some leakage at additional points that had not been repaired; but this was not serious enough to prevent her from going with entire safety on voyages where she could secure additional supplies of fresh water every few days, and she was admittedly in satisfactory condition to go to Newport, R.I., where the charterer wished to spend some time. Arrangements were made for the yacht to leave for Newport with the charterer on board early on August 3d. Meanwhile, on July 28, 1914, Austria had declared war on Servia. On August 1st Germany had declared war on Russia, and German forces invaded Luxemburg. On August 2d German forces invaded Belgium. On August 3d France declared that a state of war with Germany existed. On Friday, July 31st, Capt. Evrard had cabled to Baron de Rothschild:

'Telegraph instructions in case of conflict. Consul says men of the reserve probable obliged to go back. Yacht should then he laid up or return to France. Charterer asks information.'

The foundation for the last statement in this dispatch is given by Evrard in his testimony:

'He (Higgins) spoke to me a few words about the war; he asked me, 'What will happen in case of war?' And I told him I could not say exactly.'

Later on he expressed doubt whether this suggestion was made by Mr. Higgins or by Mr. Whitehead, his business manager, and he finally says it was Mr. Whitehead. On August 2d Evrard received this answer from Baron de Rothschild:

'Place yacht in hands agent Watson. Keep stewards. Take instructions consul for return of men subject to mobilization.'

Watson was the broker through whom the charter had been arranged. The log of the Eros for the following day, August 2d, contains this entry:

'The French consul advises of the order of mobilization. Stopped preparations for departure.'

At this juncture Mr. Higgins, with his attorney, Mr. Stearns, and Mr. Whitehead, went aboard the yacht, and the captain was asked to explain his failure to comply with the charterer's orders. Capt. Evrard immediately produced Baron de Rothschild's cablegram, directing him to place the yacht in the hands of Watson's agent and to take instructions from the French consul concerning the men subject to mobilization, saying, as he handed it to Mr. Stearns:

'How can I? Look at this. I must take my instructions from my owners, not from Mr. Higgins.'

After some discussion, however, and explanation that Mr. Higgins wanted simply to go to Newport and stay there three or four weeks, and that he would allow Evrard to keep constantly in touch by telephone with the French consul at New York, Evrard said he would take the yacht to Newport, but that under no circumstances would he take her outside the three-mile limit. Captain Evrard then went to see the French consul, from whom, according to the log, he received on this day the following communication:

'In pursuance of the order of mobilization which we have just received, I ask you to place in my hands all the men who are by the conditions required to respond to that order. I ask you also to keep yourself in constant communication with the consulate general to be able to answer an immediate call.'

The order of mobilization was not produced, but the captain characterized it in an entry in the log for that day as an order applying to men between 20 and 35 years, of whom there were 22 in the crew. On emerging from the consul's office, Evrard was requested by Stearns to cable Baron de Rothschild at once for authority to do anything that he was in doubt about. He said he did not need to, as he was master of the vessel and knew what he was supposed to do. He added:

'I will need perhaps two or three more men to go to Newport.'

Evrard then raised some question about the extra cost of securing new men, whereupon Mr. Stearns suggested that the charterer would doubtless be willing to advance the difference, and that he (Stearns) would draw up an agreement to that effect. Evrard said, if that was done, he would go to Newport. Stearns that evening drafted and procured execution by Mr. Higgins of such an instrument, and telephoned Evrard that he had it and would bring it over the following (Tuesday) morning. Evrard said he was getting the crew together. Tuesday morning (August 4th) Stearns called on Evrard aboard the yacht and handed him the paper, signed by Higgins, undertaking to advance the extra wages for the crew. Evrard asked to look it over, and assured Stearns he was getting the crew, and that everything was all right. That evening the 22 men included in the first order of mobilization were discharged at the consulate, and sailed for France on the following day. On the latter date, according to the log, the captain received instructions from the consul to hold the men of the second reserve in readiness. But on the following day this order was suspended, pending verification, and was not renewed. On Wednesday morning, August 5th, on receipt of information that Capt. Evrard was again holding back, Mr. Stearns went aboard and inquired whether it was true that he refused to move the yacht as agreed. The captain replied:

'It is true. I cannot move the vessel without more definite instructions from Baron de Rothschild. My instructions now are to turn over the yacht to Watson.'

Mr. Stearns then inquired whether he finally and definitely refused to move the yacht, and the captain replied that he did, adding, 'The whole thing is off.' Upon receiving a report of this interview Higgins cabled Rothschild as follows:

'As per your cable to him Captain Evrard absolutely refuses move Eros even Within neutral waters or to engage crew to replace those returning France. Have offered every inducement as to financial help but he declares charter entirely canceled. Am therefore compelled to charter other yacht. As contract broken by you without any benefit of same to me, kindly return all moneys paid to George Watson & Co., Glasgow, for my account, and cable me your intention as to this at once.'

Baron de Rothschild admitted receiving this cable on August 5th. August 6th Rothschild cabled Watson & Co., of Glasgow, the ship brokers:

'Your telegram and cable received. Higgins...