The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-03
Mari ne Court.
Before Judge Phillips.

| Michal Rapp against William Lo6ack and John
F. Scheet .-This action is brought to recover da-
images forthe detention of the brig Toledo at the
port Of Lguna under the following circumstances:
On the 28h of October last 81. J. Hemingway, the
master Of lhe brig, concluded with the defendants
charter patty for her, by which the brig was to
make voltage from New York to Laguna, and bring
from thenG cargo Of logwood to this city. TWEEN.
| ty runningdays from the time when the captain
should report himself ready to receive cargo were
allowed to bad the brig at Laguna, and for each
and every hy's detention by default of defendants
their aget thirty silver dollars should be paid for
each day to the master. Prior to the execution OF
| the charter party 1t was discussed by the cap
tain and the defendants as to whether Lagnna
was q port Of entry. and whether the brig could
| land there direct without proceeding to any
other port for PERMIT. At the defendants
| request the captain proceeded with them to
ne ellce Of the Mexican Consul, and upon inquiry
no impeachment to the briggs proceeding direct to
| Laguna and loading there. Upon this assurance,
J the charter party was executed. The brig pro-
ceeded to Lsgupa and arrived there on the 10Th Of
November. The following day the captain reported
the brig to the agent of the defendants ready to
receive cargo, when it was ascertaned that by some
regulation OF the revenue laws OF the Mexican go
rernmeLt LaguDa had ceased to be port of entry,
md that the brig could not take her cargo until she
Lad obtained the necessary papers from the custom
| house. The defendants agent recommended the
aptain to go to Vera Cruz for that purpose, which
lie did; whereby the plaintiff claims that the vessel
vas detained twelve days, for which he claims de.
hurrage. The master assigned the charter party
! b the plaintiff. who brings the action.
| Judge PhiIips-The only question in this case
which deem it important to notice fully is, upon
whom does the risk fallthe master or the freight
as? The contract on the part Of the master
| h, briefly, that he will proceed with his
vessel to Laguna, there receive cargo,
md bring it to New York. The defendants
that they win furnish the brig with cargo com.
pete within twenty days after che is reported ready
Il receive it at Laguna, and for every days delay
inso Going caused by their default they are to for
fat thirty dollars per day. The defendants insist
flat the Custom House regulations which prevented
tie brig from loading were no default Of theirs, that
tie captain, from his vocation, was better ac-
9panted with the local regulations at the various
ports, and that he therefore assumed the risk. To
decide this question we must look to the contract in
writing. The defendants agree to furnish the cargo
complete in twenty days, without any reservation.
The question az TO whether any delay would be
caused by Custom House rules was discussed, and If
they did not wish to assume any risk on that head,
they could have protected themselves from it by
provision in the charter party In the of Barker
We. Hodgson, Maule Selwin rep. 267, where the
reighter Of vessel was prevented from furnishing
a cargo by the Quarantine regulations during pes
thence, Lord marlborough said, " Is it not the
freghter the adventurer who chaks out the voyage,
and is to furnish at all events the subject matter
out of which the freight is TO accrue? The question
here is on which side the burden Is to fall Ii indeed
the performance Of this covenant had been rendered
unlawful by the government Of this country, the
contract would have been dissolved on both sides;
ard this defendant, inasmuch as he had been COM
PEELED to abandon his contract, would have been
cused for the nonperformance of it, and not liable
to damages. But, if in consequence of events which
happen 1t foreign port, the freighter is prevented
flom furnishing loading there which he has con-
aoted to furnish the contract IS neither dissolved,
nor isbe EXCUSED for not performing it, but must
answer il damages." So when on an action by reason
of the crowded state of the London docks ship is
detained there before she can be unloaded a longer
time than is allowed for that purpose by the terms
Of the charter party, the same learned Judge said
"The question u.s. whether the detention of the ship,
arising ftom the inability of the London Dock Com.
pany TO discharge her. is in point of law imputable
to the frGehter and am of opinion that the person
who hires vessel detains her, II at the end Of the
stipulated tine be does not restore her to the
owner. He is responsible for all the various
ing so%--(Campbell Nisi Prius, p. 1885,. Ran
dali VIZ LYNCH Another principle applicable
to this case il settled in Mederos vs. Hill,
s Bingham Rep. 23l. Where party by his own
bound TO make it good, II he may, Notwithstanding
any accident by Inevitable necessity because he
might have provided against it by his contract.
From these authorities 1t seems clear that the risk
If to be assumed by the defendants, aud that they
are liable for all delay above the twenty days in
which it was stipulated that the vessel should be
loaded. Upon the minor questions az to whether
the captain should not have gone to Frontera instead
oil Vera Cruz, to enter his vessel seems to be settled
by the evidence Of the captain, who swears that the
defendants agent decided on the briggs going to
Vera Cruz, "because it would cost less to go there
then any where else" The defendants contend that
they are not responsible for the three days that the
brig stayed at Vera Cruz, the time during which
she was detained by adverse tides and 'norther,"
nor for the time she remained at Laguna before
sailing to Vera Cruz. The only view can take OF
this question is that the time in which the brig was
20 be loaded, commenced from the time when she
reported to the defendants agent, as ready to
receive cargc-that when she left for port Of entry
SIZE was on the defendants business, and all delays
caused thereby are chargeable to them, unless u he
shown afInaiively that tue delay WAS intentionally
aid eccsssrily caused BY the captain. IL seems
that eleven days over eud above the twen'v aiinu.
iui,u lof we're CONSUMED, Tor which the defendants
ale liable Judgment for plaintiff for 1880 with
Costs, and fl2 allowance.