FEDER.A.'L'REPORTER,
vol. 42.
a leak after sailing, without having met with any peril, this raises the presumptiojr;that she was unseaworthy when she sailed. This presumption may be rebutted by proof of actual seaworthiness at the time of sailing. When 'a vessel is shOwn to have met with a sea peril, if the insurer claims that the to her being unseaworthy,and not to aseft, peril, the burden'ilronhim to show this." 1 Pars. Mar. Law, 267-271. I think, no opportunity to make any repairs at Frenchman's 'Harbor, the voyage out and back, to and from Frenchmust be Ii. ,continuous voyage without having been in pQrt,which is the view the petitioner's counsel thinks should be taken. ,Thus the burden was ripon the insurer or insured, as to seaworthito whether ornotthe Gulnare encountered a sea peril on her voyage out. The protest states that she" encountered heavy seas, and rolled heavily." This is not a peril which is insured against, but is only an ordinary peril which any strong vessel encounters everywhere. Therefore the presumption of unseaworthiness is raised, which is not overcome by any evidence. The exceptions to the master's report are overruled, the report is confirmed, there will be judgment rejecting the claim of petitioner. '
WHEELWRIGHT t1.
W ALSH. l
(DCstrk:t CO'UIi1;B. D. Ner.o York. May 29, 1890.) SJDPPING-ClIAlt'J,'lliR:PARTY-8UBSTITOTIO:N-EvIDBNCB.
Libelant chartered a vessel to bring a cargo of lumber from Fernandina. When the ves"l arrived at Fernandina, it was agreed between the parties by a further arrangem'ilnt., not in writing, Should take a differentoargo to Philadelphia, whicn ahe accordingly did. Respondent contended that the Philadelphia voyage was atllubstltute for the voyag(l'named in the charter; libelant claimed that it W8lI an agreeQlent for an indepelJ,dent voyage, to be made before executing the written charter.. Beld, that the burden Of proof rests on the party that alleges the substitution j and,Where the evideJ1ce on that point is evenly balanced. the written charter !Dust Pnlvail. ,
In A9-mir8lty.
Caryentm-
Owen, Gro,'!i Sturges, {or libelant. for
BnowN,J. 'lbe charter, for the breach of which the above libel is filed, pT()vided that the yarolinl3 Miller should bring a cargo of lumber from Fernandina at a fixeq tate·. The libelants, who are the charterers, had employed the vesselbnher two previous trips. When the ,ressel arrived at Fernandina, it was agreed between the parties by a further arrangemell;t, not iIItpat she should take a cargo of railroad ties to which she acqordingly did. The respondent contends that this .was a for the agreement to take a cargo of lumber. The libelants contend that it was an agreement for all;. independent trip, tReported by Edward G. Benedict, ESQ., of the New York bar·.
THE TRINACRIA.
863
to be made before executing the written charter for carrying the lumber. Their witnesses testify that in the negotiation for the cargo of railroad ties it was explicitly provided that that trip should not affect the charter the cargo of lumber. The witness for.the respondent denies that there any such condition. and asserts that it was understood to be a substitute for the charter. In the details of the testimony there are doubtless to be found some circumstances tending to corroborate each. On the one hand, all the prior charters of the ship between the same parties had been in writing. On the other hand, as the agreement for the transportation of the ties was not made until about the time of the arrival of the vessel at Fernandina, and as she was to enter immediately upon the performance of that contract by loading at Fernandina, and was so ordered, there was not the same need of a written contract as in the other cases providing fora future voyage. The libelants, moreover, were under a definite contract with other parties to transport the lumber by a given date; so that itis scarcely probable that they would intend to abanddn the existing charter of the vessel for carrying the lumber by substituting ties, and leave the transportation of lumber in fulfillment of their contract wholly unprovided for. The particular time when the lumber was to be transported was not stated in the charter; so that the transportation of the ties first, did not require any modification of the written charter as to the lumber. The written charter was an agreement to carry a particular cargo. Confessedly, that specific cargo has not been carried. The burden of proof to show that something different from what was agreed on in writing has been done and accepted as a substitute for it rests on the party that alleges the substitute. Upon evidence so evenly balanced, and looking also at the various circumstances, I do ndt think the respondent has made put the substitution by any preponderance of proof; and the written charter., as it stands, must therefore prevail. The respondent, having refused to send a vessel to take the lumber as required by the libelant under the written charter, must therefore be held bound to pay the difference in freight, for· which amount, with interest, the libelants are entitled' to a decree.
was
THE 1luNACRIA.1 MARX
et 01.
tI. THE TRINACRIA. .
(DImict Oourt, S. D. New York.· May
sa, lsOO.l
8J1Il'PIWe-CABRUGB OJ!' GOODs-BILL OJ!' LADING-NEGLJGENCE-FORBIGN LAW.
Glycerine was stowed on a British ship at Genoa, Italy, and brought to this oountry under a billoflading, which, besides the ordinary exception of perils of the sea, contained an exception against liability for loss occasioned by leakage or stowage, or by negligence of any person in the service of the ship. TIiis latter exception 18
I
Reported by Edward G. Benediot, Esq., of the New York bar.