The Portland daily press., 1869-05-24
Terms $500 per amman, d. adrance.

90, and the master having become agent for
all interested, 1 do not think he was abso-
lutely bound to wait for the expiration OF the
lay days before the sale.
In Parsons Maritime Law, Volume
1, PAS, it is said: "If the charterer
has refused to load cargo, the mas
ter should proceed at once to obtain an
other, and not wait till the time expires
during which the charterer had right, by
the charter party, to put on board goods. p
He cites Blight & Page, in note, 3, b. q r.
295, where vessel was allowed 30 lay days
by the charter, but on her arrival, the captain
was informed by defendants agents that the
| government had prohibited the expectation
OF the cargo, and that it would not be in their
| power 10 furnish it. The captain, however,
entered the port and remained 40 days, and
| then returned in ballast. Lord KENYON held,
that notice having been given to the master
that the cargo would not be provided, there
was no pretence to hold the defendant an
| swerable for demurrage. This authority is
cited with appreciation by Cowen ]. in 21
Wen. 800, Hechscher V. McRea, where he
says, "It was completely ascertained that
Dow, Wilson & Co. could not fill the 100 tons,
and the ship was not bound to remain till the
lay days had expired, with any view to per-
formance. Blight v. Page, 8 B & p 295, note.
And if there were nothing more in the case,
| the master might have Immediately weighed
| contract might be considered as, pro tGnt0,
already broken, and the master absolved from
| the duty all further staY.D
The case ofAvery and Bowdon. IS E. G. L..
725,atfirmed by E.C G. L. SS e. c. ,L.052 is not
inconsistent with this view of the law, as
Lord Campbell, in delivering the opinion OF
the courts, states that the evidence did not
show an absolute refusal to provide cargo
for the ship, but he says, "if the defendant
| within the running days and before the dec
| laration Of war, had positively informed the
/ captain that no cargo had been provided, or
would be provided for him at Odessa, and
that there was no use in his remaining there
any longer, the captain might have treated
this as a breach aud renunciation of the con-
tract, and thereupon sailing away from
| Odessa, he might have loaded cargo at a
friendly port from another person, whereupon
| the plaintiff would have had right to main
tain an action on the charter party to re-
cover damages equal to the loss he had sus-
tanned from the breach of contract on the
part of the defendant-the language used by
the defendants agent before the declaration
Of war can hardly be considered as amount
ing to remuneration of the contract, &C."
The same principle is to be found in the
opinion of Curtis ]. in Curtis, 92, Clarke
& Crabtree, viz, at is objected, that the
master waited but twenty four hours at Bon
aire, that ii a master sails away, without
waiting the stipulated number Of lay days, If
the number is stipulated, or reasonable
number, he cannot recover for dead freight.
And that the evidence shows,that three to five
days, is the usual number, and therefore the
reasonable number of days. But the evidence
only proves three to five days the ordinary
time occupied in taking cargo of salt on
board there, not 10 wait to find cargo, and
il the master ascertained, in less than twenty
four hours that by watng three TO five days,
he could not obtain cargo, he was not only
not bound to wait, but he had no right to
wait and impose the charge lying there on
| the charterers."
do not deem it an insuperable objection
to the validity of the sale that it occurred be-
fore the expiration of the stipulated lay days.
Was the sale justifable from the necessity of
the case?
/ In the Schooner Cassius Story R.,
96 story j. says: "But suppose, in the next
place, there was final refusal to receive the
cargo by the consignee, at Velasco did this
authorize the master, to carry it to New Or
leans? agree, that in cases of necessity, the
master becomes by mere intendment and au-
thority of law, the agent of all concerned as
well of the owners OF the cargo as Of the ship.
But this right OF the master, Is to be clearly
: made out by unquestionable proof of such
necessity. In the present case, the cargo
could have been landed at Velasco, which
was the port of destination-then there was
no necessity of carrying it elsewhere. 1t Is
said, it could not have been sold at Velasco
for want OF money in the hands OF
necessity of any sale, the cargo was
not peIishable and therefore the sale would
have been unjustifiable, on the part of the
master, since it would not have been Q sale
from necessity. If the consignee refused
to receive the cargo, after it was landed, and
10 give a bill on New York for the freight
then it became the duty of the master to
place the same in the hands of some trust
worthy person for the security Of his lien for
the freight, and subject thereto, for the bene-
fit and account of the owners. But no right
J even under such circumstances, could exist
: on the part ofthe master to sell the cargo,
, unless It avGs perishdbIe and might otkertoise
haze been lost or haze persisted. 1t might
perhaps, have admitted of very different
: construction, if the cargo could not have
been landed at Veasco, or there deposited in
safety, for the owners; or if the sale had be
come indispensable from the perishable ma
ture and condition thereof"
In that case the cargo was lumber freight
| payable in New York and applying the prin-
cipes there laid down to this cargo of ice, in
warm, latitude, fast wasting away, with no
proper place for storage and with no funds to
pay the expenses of discharging the cargo,
|
| this sale was from necessity and authorized
7 uneer the special circumstances attending it.
1t would perhaps have been more in strict ac-
| eordance with his duties, after the agent had
abandoned the cargo, If the master had HIM
self attempted to communicate with the ship
pers by telegraph. But l think that his fall
ingso to do, should not be held so great vio-
lation of his dnty as to render invalid all his
subsequent proceedings, taken under advice
of counsel, and which were all conducted in
good faith on his part, and which / appre-
| hend have proved as beneficial to the respon-
ents as any course which could have been
adopted, especially as their own agent induc-
ed the master to believe the respondents
were unwilling to send instructions in regard
to their property.
In case Of schooner Treasurer Sprague Ats,
which was in relation to cargo of coal the bill
of lading Of which had been assigned to the
libellant but which he did not receive, Judge
Sprague says "Even if the libellant were the
owner, the master would have been author
lied lin case of an absolute refusal by him to
receive the cargo) as an agent from necessity
to dispose OF the cargo, and would have been
responsible for the net proceeds after deduct
ing freight and his expenses and compensa-
ton as such agent" Ii such necessity
could exist in the case of cargo Of coal in
Boston harbor, where the owner resided and
where probably hundred places for its land
ing could be procured, much stronger must
it exist, in case of cargo of ice at New Or
leans in the early part of October, on board q
single deck vessel, not very carefully slowed
and protected from the sun, as it appears from
the great waste Of 40 per cent, in as many
days on a voyage from Maine.
1t must DO remembered that in the very
outset the respondents failed to comply with
their duty. They should have forwarded
the bill Of lading, with instructions to their
agent and provided him with funds to pay
the freight. All this they entirely failed
todo. Their retention Of the bills OF iading IS
quite inexplcable. By their neglect, and the
abandonment OF their property by their
| agent, the master was thrown into perplex-
| ing and hazardous situation; obliged to deal
| with perishable article, delay was not only
ruinous to the thing itself, but was attended
| with the great expense of demurrage, If al
| lowed to remain ON board the vessel, and IL
| removed and stored on owners account, il il
were practicable, in all probability, the own
| ers would not have been benefited thereby:
under such circumstances, the conduct of the
master, by court of admiralty, should not
be severely scrutinized, so as to establish
liability IN behalf of parties as negligent as
these respondents are shown to have been.
The master, as l think, acted honestly, and
as he believed TO be for the best interests of
all parties under the very critical position
IN which he was placed, and on the whole,
the shippers have no right or occasion TO
0hQft IN hic oordf,of in their bpnalf.