Falls of Keltie S.S. Co. v. United States & Australasia S.S. Co.

• Decision Date: 13 April 1901
• Citation: 108 F. 416
• Parties: FALLS OF KELTIE S.S. CO. v. UNITED STATES & AUSTRALASIA S.S. CO.
• Court: U.S. District Court — Southern District of New York

108 F. 416

FALLS OF KELTIE S.S. CO. v. UNITED STATES & AUSTRALASIA S.S. CO.

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

April 13, 1901

Convers & Kirlin, for libelant.

Wing Putnam & Burlingham, for respondent.

BROWN District Judge.

The parties having agreed upon the amount of charter hire, the only question presented to the court for decision, is as to the amount to be allowed as a counterclaim, if any, on account of the delay in the passage of the steamship Falls of Keltie from Port Elizabeth, South Africa, to Norfolk, Va., in July and August, 1900. The charter was for 'a period of about six months with charterer's option of about nine or twelve months between New York and Cape Verde Islands, South African ports, Australian ports, etc., etc. and U.S. ports north of Hatteras. * * * Hire to continue until her delivery at the U.K. * * * or U.S. port north of Hatteras.

The charterer did not exercise his option of continuing the hire of the vessel for the further period of three or six months but at the expiration of the six months, namely, on June 6 1900, she was in the hands of a subcharterer at Algoa Bay also called Port Elizabeth, South Africa, with a cargo consigned to the British government. She arrived there on April 19th, where she occupied a period of 10 weeks in discharging, which extended beyond the 6 months period. The charterer and subcharterer retained her only for the purpose of completing the discharge and returning, and the provision of the charter that hire should continue until redelivery, etc., became applicable, together with the other provisions of the charter, until the return could be properly effected.

Clause 22 of the charter, upon which the counterclaim is based, is as follows:

'That as the steamer may be found from time to time employed in tropical waters during the term of this charter, steamer is to be docked, bottom cleaned and painted whenever charterers and master think necessary, at least once in every six months, and payment of the hire to be suspended until she is again in proper state for the service.'

On account of the steamer's foul bottom, the respondent on June 26th, pursuant to this clause, demanded that the steamship should be dry-docked at Cape Town, which was the nearest accessible dry dock, but was distant two days' sail. On July 2d the owners by cable refused to dry-dock at Cape Town, adding, 'Captain reports it is not necessary. ' On July 11th the steamship sailed from Algoa Bay and arrived at Norfolk on August 27th, after a passage of 46 days. The respondent claims that by reason of the foul bottom the time of her homeward passage was increased from 6 to 12 days, and that for that reason the respondent should be allowed a deduction from the charter hire for that period, as well as for the extra coal consumed during that time at the price it cost at Algoa Bay.

For the owners it is urged that dry-docking at Cape Town was practically out of the question and was not obligatory, not only on account of its distance of two days' sail from Algoa Bay, but because the dry dock there was so occupied that it could not be availed of; and further,...