The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-10-05
United States Circuit Court.
Before Chief Justice Nelson.
rYcIeIoN IN ADMIRALTY ON APPEAL-CHARTBK OF

voyage port of New York 10 Melbourne Austria
Ka upon certain terms and conditions therein specified;
that the hbeant took possession of the vessel with the
know ledge and of the and has since
renq same that by the terms of the contract
he the belant bound to man, victal and navigate
the said ship at his expense and by his own pro-
curemen whereby he became owner Of the vessel during
the time covered by the charter party and had expended
large and much time and had incurred heavy re-
sponsibes in and about the procurement Of passengers
and obtaining outfits for the ship her crew ana passengers
and had entered into for the out
ward and homeward voyage; that the hoeiant = us
turbed hindered and moested in his possession "a A
min md In puttine her crgs board and in the enjoy
nent Of his rights secured TO HIM under the charter
party person placed on board by the owner as mas
k.r and who as such is bound to obey the instructions
q the belant according to the terms OF the contract,
MT refuses 10 obey the and is upheld and
aged the disturbance and moestation of the pos
session, by the The libel then prays decree
for the possession, or damages for withholding it.
The admits the charter party set out in the libel
bat alleges that the delivery conditional and to be-
absolute only in the (the respondent in
sed as to the suciency Of one samuel B. Jones who I'M
dsrtook by An endorsement on the charter party, to
guarantee performance part of libeant the
shartercr and that it understood and at the
time of the execution and delivery that the guaranty
Was not to be considered sufficient till the respondent
should declare his satisfaction with the responsibility of
Jones' and that being unable to obtain any reliable nfor
nation as to his responsibility suhcency, notice
given 10 the belant the day, (the 18th june OF
the insucency Of the guaranty and that he then and
there agreed to other 20 secure
the performance his TO the satisfaction OF the
spondent but wholly neglected and failed to do The
also denies that the possession of the ship
but alleges that the charter became null and void on ac
count OF The non ufmen of the covenants on the part
OF the hbelisnt. Among the covenants in the charter
party the charerer agreed 10 the of the ship
tr tie charter durinr the vovge 81 300 u.r month and
to pay all the wages Of the master officers and crew.
also, all foreign port charges, inclldug Consuis fees
vharfages and ilotage and To furnish sufficient pr,y
sons and water for the OF passengers and and
all incidental expenses Except renairs urng the voyage
one dollars TO be Maid on the Goth of June two
thousand Al the expiration Of sixty DAYS four thouaa
on the arrival OF e sp II Melbourne ~ In New York
Ia faKk N pf lsr
balance on the ARRIVAL ana di.,hs rge ~ o ii tie Tint
tes states Thers 4 Ill = I'M further coyenantAnd il
q also understood ana agreed tbat M charter marry
shaU be guaranteed 10 The entire satisfaction III tile party
pf part" The charter party signsl and le
lrerea on the aav Il bears ds june 10 1855 and under
written the signatures Is the following
hereby rr.rapte. me fulmsat II ths within contract
New York Jrne III iS5S SAMUEL ID. JONES'
Witness, Il. E. ARROwsrIrH.
And also the following endorsements.
- 4, .,
NJ yb ppp 1 rs Iss On w RREWER
~" 800 800 - 49, " " 49, -
This statement OF the pleadngs and parts Of the char
tar party viii be sufficient 70 present the material ques
tons involved in the Tie FIRST and which
the merits OF ii is, whether the agreed
either expressly or by necessary implication from his
silence the execution and delivery of the charter
IT, accept Jones guarantor within the covenant?
This question OF fact and must be decided upon the
weight evidence. Edwin r. Jones the broker who
negotiated the charter for the bellant with 3 L. Arrow
smith a broker on behalf Of Brewer the owner states
that he was present when the guaranty was
signed by Jones: that Brewer present,
and that the witness nronosea a. +bc time
that the parties should 20 Atlantic docks where
the ship lay and put her in possession Of the ibelant;
that Brewer said he would % hat time but
srned no other reason that the witness then proposed
that he should put the charter party stipua-
lions that would answer the same purpose which he
agreed to- and wrote the endorsement signed by him.
which we have already referred to- He further states
that when the writings completed he uired of all
that they were and that no Dissatisfaction was expressed
BY Brewer. Sylyanus Pickering commission merchant
present and concurs substantially with Ives also
McIorid, clerk Of the belsnt and R H. Lockwood WHO
present The latter supercargo the ship
In her voyage to Australia AT the time Of the execution
and delivery draft by the Ibeant accented by Jones
the guarantor for 81 600 payable in sixty days was
Riyen to Brewer cover the second pa vinent aud
recent given for the same b. r. Arrowsmth the
broker on the side Of the owners in the negotiation
states that when they went to the Office Of the beant
where the charter party executed he met the latter
the Of the Office: thai he and Brewer
oonversed together upon subject that Brewer
stated he did not know about Jones. The libeilant
said il should be made satisfactory. u AL
right in regard to Jones The conversation had been that
other security should he given if required lie admits
that when The draft handed Brewer, lie had
signed the receipt the loeant asked il i al salts
factory and the former answered in the Affirmative but
the witness states that Brewer sent him the day =
the ibellant, 10 say 70 him that the matter not sa
factory that communicating the message lie sad
he would eneayor to get other security and
advise him possible. Other were oler
cd but on inquiry were rejected. Tile witness also
states he inquiries about JONES' and coud
get ANYTHING satisfactory concerning him Brewer au-
thorized this witness late 2lst ami I'D 81 June
t. accept sufficient security and carry into effect the
charter rarty but refused to gye 10 of the
the testimony bearing upon the main question involved
except il has been shown by evidence in this Court that
the bellan insoyent the time he entered into the
charter party and find nothing in the proofs either
In the Court below or in this, 70 show that Jones
of any responsibility 1t is quite clear therefore,
fhat whatever may have been the form and -oemni-
ties with which this contract entered into,
and even If in way to bind, IN Judgment Of
hw the parties so Tar as Brewer, the owner Is con
eened there has been, in reality and substance, no
f.lflment Of the most material covenant IN his favor on
the part OF the charerer The qua anto Tor aught that
appears was man OF straw, ana the charerer himself
insoivent Inns inference against Jones ~ not hash
e Tor after the evidence that nqures had been made
end nothng satisfactory could De Obtained concerning
MN tne ourIen Jay upon the ioeliant 70 snow that ne
vas man OF responsibility. auinIt ne may rest ms
- ~ ne upon ue agreement .. DIeNer y 1917
III: . ,s ~ "lesneI ~ ~ any espunsi
o' OF NOV uu, 'nere y 'ny uoue ABOUT th.s aSree-
.sai upon ne .he .sce ~ his "aSt =. ~ IN
sIoy = an eiehen. thas cahnol oe o1eiooAei iie
Squiy and justice ol nc case must nave ~ WesIt ~
eeng aile quesuon. rug Anpor me- ~ tni' eYlenci
no uoso' uiy appreca.-e oy Iue e-theu e9uei
s0t tne hoan,, anu te OMISSION 70 produce " raves
NJ Una ooie inference I 9 y ma no. n =. power