Simpson v. One Hundred and Ten Sticks of Hewn Timber
| Decision Date | 25 April 1881 |
| Citation | 7 F. 243 |
| Parties | SIMPSON, JR., v. ONE HUNDRED AND TEN STICKS OF HEWN TIMBER. |
| Court | U.S. District Court — Eastern District of New York |
Hill Wing & Shoudy, for libellant.
H. F Averill, for claimants.
BENEDICT D.J.
It is useless in this case to determine whether the ship-owner is entitled, under the charter-party, to any greater sum than the $4,750 named in the bill of lading as the amount of freight and demurrage, for the reason that the amount named in the bill of lading is greater than the proceeds of the property in the registry.
The only point requiring determination is whether the action must be dismissed as prematurely brought. The libel was filed on the twenty-fourth day of May, 1880, and, as appears by the marshal's return the lumber was seized by him on that day by virtue of process issued in this action. When the cargo was so seized the vessel was lying at a wharf designated by the charterers, and a portion of the cargo had been discharged upon that wharf. The point made by the claimant is that in order to maintain the action the cargo must be shown to have been discharged from the vessel and a tender of it thereafter made upon payment of the amount due. But, if such be conceded to be the general rule, it is not without exceptions. Here an exception is created by the facts proved which, taken together, show that the charterers had no money to pay either freight or demurrage, and their action was such as to warrant the ship-owner in concluding that a tender of the cargo would have been a vain formality. There was in fact no readiness on the part of the charterers to pay either freight or demurrage, and the ship-owner had reason to suppose that there was no intention to pay either freight or demurrage. Upon the circumstances, therefore, the acts of the charterers must be deemed a waiver of any tender of the cargo, and the suit, which, it must be remembered, was in fact for demurrage to the amount of $1,250 that was already due by the terms of the charter, and by the charter made a lien upon the cargo, must be held to be properly brought.
I do not see that the fact that another suit had been instituted by the ship-owner to recover his freight and demurrage, which suit was discontinued on the 24th, prior to the filing of the libel in this case, is of any importance. It appears that the cargo was not seized in the first suit until the vessel was at the berth designated by the charterer, ready to discharge the...
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Standard Steamship Co. v. United States, 1705.
...the case, under the order of the court. Jacobsen v. Lewis Klondike Expedition Co., 9 Cir., 112 F. 73, 50 C.C.A. 121; Simpson v. 110 Sticks of Hewn Timber (D.C.), 7 F. 243; Dennis v. Eddy, 12 Blatchf. 195, Fed.Cas.No. 3,793. As there is no statutory provision for the allowance of mileage as ......
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