O'Brien v. One Thousand Six Hundred and Fourteen Bags of Guano

• Decision Date: 08 June 1882
• Citation: 48 F. 726
• Parties: O'BRIEN v. 1,614 BAGS OF GUANO.
• Court: U.S. Court of Appeals — Fourth Circuit

48 F. 726

O'BRIEN v. 1,614 BAGS OF GUANO.

United States District Court, D. Virginia.

June 8, 1882

Sharp & Hughes, for libelant.

Walke &amp Old, for claimant.

HUGHES J.

This is a libel on 1,614 bags, part of a cargo of 1,000 tons, of guano and 287 tons of cotton ties, brought by the ship John Bryce from Liverpool to Norfolk. It was taken out on this residue of cargo while still on the ship, for the sum of $1,561.83, claimed to be due to the ship for freight on the said cargo. The libel is founded on a charter-party entered into in the city of Norfolk on the 22d of November, 1881 between Lamb & Co., agents of the ship John Bryce, and the Seaboard Cotton Compress Company, of Norfolk, which stipulated for 'a voyage from the port of Liverpool England, to Norfolk, Va., and then direct to Liverpool England,' and which recites that the ship was then lying in the harbor of Liverpool. On the part of the vessel, it provides, among other things, that the ship shall bring 1,000 tons of salt or (and) guano free from Liverpool to Norfolk, to be unloaded at charterers' expense, which charterers' option of 300 tons additional, at 5 shillings per ton. And in adopting, by reference to, the stipulations of a previous charter for another ship of the same owner, (the O'Brien,) it stipulates, in effect, that if the vessel should not arrive at Norfolk by the 16th of February, 1882, and 'prepare for entering on this charter,' the charterers should have option of canceling the same. No other consequence in the nature of a penalty or forfeiture is provided in the charter for the event of the ship's default in arriving at Norfolk by the 16th of February. There is also a provision that 'this charter shall commence when the vessel is ready to receive her cargo at the place of loading, and notice thereof is given' to the charterers or their agent. On the part of the charterers, it is stipulated, among other things, that they will 'furnish the said vessel a full and entire cargo of cotton or (and) other lawful merchandise from Norfolk, and that they will pay thirty shillings per registered ton for freight on the shipment to Liverpool.'

It was shown in the evidence that the ship John Bryce had but recently arrived in Liverpool with a cargo when this charter-party was entered into; that, after unloading, she had to be put upon a dry-dock, to repair the copper upon her bottom, which produced delay; that the ship did not set sail from Liverpool until the 18th of January, 1882; that the weather was bad during the voyage, from which cause she was at sea 76 days; and that she did not arrive at Norfolk until the 4th of April, or 57 days after the time fixed in the charter-party for her being in readiness to take on cargo. It was proved that the ordinary time of passage varied from 25 to 50 days, and that in leaving Liverpool, on the 18th of January, she had but 29 days within which to make the voyage to Norfolk. It was not proved on contended that the delay of the ship in reaching Norfolk was owing to fault on her part. It was proved that the ordinary rate of freight from Liverpool to Norfolk was 10 shillings per ton. The ship took on at Liverpool 1,000 tons of guano and 287 tons of cotton ties. The bill of lading for the guano recites that the cargo was to be delivered to the order of the shippers in Liverpool, or their assignees, 'they paying freight for the said goods at the rate of freight free, and all other conditions as per charter-party;' and is dated at Liverpool on the 7th of January, 1882.

It appears from the evidence that 30 shillings was the maximum freight paid for cotton from Norfolk to Liverpool, and that to vessels chartered while in Liverpool less rates (29 or 28 shillings) had been obtained last fall and winter; that to vessels chartered in Norfolk freights were always less than when chartered in Liverpool; that during last winter as low as 26 shillings had been paid to such vessels; and that after the 16th of February last, the charterers, respondents in this case, had in no case paid to such vessels as much as 30 shillings for freights from Norfolk to Liverpool.

The ship not having arrived at Norfolk by the 16th of February 1882, the charterers exercised the privilege which they had reserved, and canceled the charter. They made tender of four shillings a ton as freight on the ties, and since the filing of this libel have deposited in the registry of the court the sum of $279.26 as the net amount admitted to be due on that account, together with the costs of this proceeding which had accrued up to the time of the deposit. The libelant claims at the rate of five shillings per ton for the whole cargo. The respondent claims that, notwithstanding the cancellation of the charter, the libelant is still bound to deliver the...