The Francis Wright
APPEAL from the Circuit Court of the United States for the Southern District of New York.
Duncan & Poey, the libellants, entered into the following charter-party with Woodhouse & Rudd, the claimants:--
'This charter-party, made in the city of New York this thirteenth day of September, in the year one thousand eight hundred and seventy-two, between Messrs. Woodhouse & Rudd, owners of the steamer 'Francis Wright,' of New York, of the burthen of 600 tons or thereabouts, now lying in the harbor of New York, of the first part, and Messrs. Duncan & Poey, merchants of Philadelphia, of the second part, witnesseth:
'That the said party of the first part, in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, does covenant and agree on the freighting and chartering of the said vessel to the said party of the second part for the term of six months, to run between Philadelphia or New York and Galveston, or any intermediate safe port in the United States, or any foreign port not prohibited by the insurance.
'It is further understood and agreed, that the said parties of the second part are to have the privilege of cancelling this charter at the expiration of three months, upon giving the parties of the first part fifteen days' notice, and the payment of fifteen hundred dollars bonus on the terms following, viz.: 'First, The said party of the first part agrees the said vessel, in and during the said voyage, shall be kept tight, stanch, well fitted, tackled, and provided with every requisite for such a voyage.
'Second, The said party of the first part further agrees the whole of the said vessel (with the exception of the necessary room for the sails, cables) shall be at the sole use and disposal of the said party of the second part during the voyage aforesaid.
'Third, The said party of the first part further agrees to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise as the said party of the second part, or their agents, may think proper to ship.
'And the said party of the second part, in consideration of the covenants and agreements to be kept and performed by the said party of the first part, do covenant and agree with the said party of the first part to charter and hire the said vessel, as aforesaid, on the terms following, viz.: To man, coal, and victual steamer, and pay all expenses of every nature (including port charges, &c.) connected with running of the steamer, except insurance on vessel and repairs, and to pay to the said party of the first part, or their agent, for the charter or freight of said vessel, during the voyage aforesaid, in manner following, viz.: Eighty-five ($85) dollars per day, United States currency, due daily, but payable at the expiration of each and every month, in New York; vessel to be returned to the owners at the expiration of this charter, in the same order and condition as she is now in, less the ordinary wear and tear. Charterer to take and deliver the steamer at New York; owners to nominate and charterers to appoint chief engineer, to be paid by charterers at rate of one hundred and twenty-five ($125) dollars per month. Charterers to appoint captain subject to the approval of the owners. It is also agreed that this charter shall commence at New York on the 18th of September, 1872.
'If from any derangement of machinery steamer is delayed, the time lost is not to be paid for by charterers, and in case such derangement, if any, owners to have privilege of cancelling charter. In case of any wreckage, towage, or salvage, accruing to the vessel whilst under this charter, one-half of said earning to be paid to the owners of the steamer. To the true and faithful performance of all the foregoing covenants and agreements the said parties do hereby bind themselves, their heirs, executors, administrators, and assigns, and also the said vessel, her freight and appurtenances, and the merchandise to be laden on board each to the other in the penal sum of estimated amount of this charter.
'In witness whereof the said parties have hereunto interchangeably set their hands and seals the day and year first above written.
'WOODHOUSE & RUDD.
'DUNCAN & POEY.
'Sealed and delivered in presence of
'W. H. STARBUCK, witness to both signatures.'
The libel filed in the District Court alleges that, in accordance with the terms of the charter-party, Sherman was appointed chief engineer of the steamer, and Denison her captain; that the libellants took her to Philadelphia, where they fitted her with refrigerators and other appliances for bringing a cargo of fresh beef from Galveston to Philadelphia, and then despatched her to Galveston; that on the outward voyage the vessel gave signs of unseaworthiness in the blowing and leaking of some of her boiler-tubes, by which the time of the voyage was fourteen instead of ten days, the usual time; that at Galveston the chief engineer was notified by the libellants to make repairs, &c., but he refused, whereby she, having taken a cargo of about seventy tons of fresh beef, was, Oct. 31, 1872, being then four hours at sea, out of the port of Galveston, compelled to put back there for repairs by reason of the boilertubes again blowing out and leaking, and was detained at Galveston seven days for repairs, leaving there again Nov. 7, 1872, and was fifteen days making the passage to Philadelphia, owing to the unseaworthy and defective condition of the boiler; and that by reason of these detentions and of the unseaworthy condition of the boiler, and also of the hot water which escaped from the boiler-tubes and was negligently allowed to run into the steamer's bilge and melt the ice in the refrigerators where the fresh beef was stowed, the beef became spoiled and entirely lost, to the damage of libellants $30,000, which they claim to recover.
The steamer was attached, but was subsequently released, upon the claimants entering into the usual stipulations conformably to the rules and practice of that court. The claimants answered, admitting the making of the charter-party, the appointment of the chief engineer and captain, and the libellants' taking possession of the steamer. They deny all the other material allegations of the libel, and aver that she, as far as they were bound to do, was kept as required by the contract.
The District Court dismissed the libel, and the Circuit Court entered a decree of affirmance. The libellants excepted to certain of the findings of fact and to the refusal to find certain facts by them requested and to the conclusions of law. They thereupon appealed here. The bill of exceptions is incorporated in the record.
The remaining facts appear in the opinion of the court.
Mr. Robert D. Benedict and Mr. Benjamin Harris Brewster for the appellants.
Mr. William Allen Butler, contra.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.