Statement of the Case. reaching the conclusion that the steamer would be able to carry 10,000 quarters, and Gomila advised the master to so cable owners. A cable message was then made up by the master and De Wolf from Gomila's code-book, in which the master said, 'the vessel will carry 10,000 quarters of grain, if we coal at Halifax.' After the said message was prepared, Gomila gave, as his reasons for insisting on a guarantee, the aforesaid contract with Forestier & Co., which was produced and read, and Gomila stated that he had no use for any vessel that would not carry 10,000 quarters of grain; that he must have a guarantee, and feared that if the vessel would not carry that amount the consequences would be serious; that the market had declined and was still declining, and the loss would be very heavy, because the buyer would have the right to reject the cargo if the conditions were not strictly fulfilled. "The same day the following cable message was sent by ship's agents: "To W. J. Hammond, Liverpool: "JUNE 18TH. "Deronda. Captain's opinion she can carry 10,000 quarters, coaling Sydney; have closed, subject to owners' approval, 5-9, calling at Elsinore for orders Copenhagen, Aarhuns, charterer's option; Cork or Falmouth for orders, 5-3, to discharge at a safe port in U. K. or Continent Bordeaux to Hamburg. If ordered to U. K. direct, 3d. off. If ordered to Continent from port of call, 10 per cent additional. "To which message, on June 19th, De Wolf & Hammond received the following answer: 666 JUNE 19TH. "Fix Deronda. After hard work got Culliford, owner, accept your offer, but must exclude Rouen; cannot go there. "W. J. HAMMOND.' "Fourth. On June 19th the charter-party was entered into, of which a true copy is attached to the libel, except the en Statement of the Case. dorsement in red ink across the face, and is made part of this finding. "Fifth. The cancelling date of said charter-party was not fixed because Gomila & Co. waived it, as the ship was in port and they had confidence in the ability and willingness of the master to get the ship ready in time. "Sixth. On the 28th of June the ship was ready to receive cargo and the loading then commenced. No formal tender appears to have been made of the ship on that day, but the loading was commenced with the consent of all concerned. The loading was continued, with slight interruptions from rain, and until twenty minutes past three o'clock in the afternoon of the 30th of June, when the loading was stopped, and the ship was declared by the underwriters' inspector to be full all over and ready to proceed on her voyage, and the inspector gave his certificate to that effect. She then had only 9635 quarters on board, equivalent to 82,588 bushels, and could take no more with safety, as she was then loaded and stowed, although libellants had the balance of the cargo of 10,000 quarters in barges alongside, and it could have been put on board before midnight if the ship could have taken it. "Seventh. After the loading had begun and before it was known whether the Deronda could take the guaranteed quantity, all parties supposing that she could, Gomila & Co., as is usual in such cases, handed their copy of the charter-party to Forestier & Co. The latter, without authority from the charterers, took the copy to the ship's agent unindorsed, and obtained a charter in their own name, but otherwise the same in all respects as charter to Gomila & Co., for the purpose, as they explained, of appearing to their correspondents as original parties. Gomila & Co. were advised of this by De Wolf, of De Wolf & Hammond, before the loading was finished, on June 30th, but replied to him that they would not object to such a change if the vessel fulfilled the guarantee in the charter, but that if she failed they would expect the return of the papers. On this point the court finds that Gomila & Co. did not authorize the surrender of their charter and the giving of a new one to Forestier & Co. save upon the condition that the Deronda should first execute her guarantee. Statement of the Case. "Eighth. When, on the 30th of June, the steamer was loaded, as described in the sixth finding, all parties had notice at once that the steamer could not carry the quantity guaranteed; whereupon Gomila, who was about to depart for St. Louis, left the matter in the hands of Bangston, of Forestier & Co., to arrange, instructing him substantially as follows: "I have no doubt this matter can be arranged with the owners, and anything you do to protect me I will be satisfied. with. It seems to me the best way to arrange the matter would be to telegraph to the owners, that if they will take the cargo off our hands at twenty-eight one and one-half pence, as agreed upon, no one will be injured and I will be satisfied; but in case they do not do this, then all that I ask is to be made whole in my contract, and you can make negotiations to that effect." "Forestier & Co. cabled their correspondents as follows: "Deronda. We have shipped 9600 quarters; reply if in order or not. What do you propose? Cable at once;' and received answer, July 2d, to refuse Deronda; and De Wolf & Hammond cabled claimants as follows: "To Culliford & Clark, Sunderland: "JUNE 30TH. "Deronda loaded; carries 9635 quarters; cargo sold not less than 10,000 quarters. Copenhagen, 28-3; present value, 25; buyers refuse acceptance, as cargo falls short. Charterers hold ship responsible. Advise. "DE WOLF & HAMMOND.' "To this last dispatch the following was sent : "JULY 1ST. "Complete swindle. Captain knows ship discharged 10,380 Bordeaux. Compromise; pay value grain. "CULLIFORD & CLARK.' "JULY 3D. "To Culliford & Clark, Sunderland: "Cargo on board, 2065 tons maize, 170 tons coal; surveyors refuse load deeper: ship full all over; no advantage New Statement of the Case. port; cargo sold, June loading; shippers can sell Copenhagen, 258., you paying difference, or owners buy cargo 28.3 cif.; best can do. Which do you advise? Cargo maize, No. 2 mixed, sail grade, very good. May we draw on you for same? "DE WOLF & HAMMOND.' "To which the following answer was made: "JULY 4. "Consult indemnity lawyer, McConnell. If he approves, dispatch Deronda; give bail, if necessary. First telegram simply means paying difference value alleged short shipment; save delay. "CULLIFORD & CLARK.' "It does not appear that charterers at the time had any knowledge of these dispatches. "Ninth. Negotiations were opened and continued between the parties with a view to compromise, but without result until July 5th, on which day Forestier & Co. notified Gomila & Co. that they refused the cargo because it was short and their buyers in Copenhagen had declined to accept it. They claimed damages of Gomila & Co. for violation of the contract of sale, consisting in the loss of their commissions, amounting to $3194.39, which Gomila & Co. paid. "Tenth. From July 3d to July 5th Gomila & Co. telegraphed to some of the best known dealers in England and France for quotations and offers. The best offer was twentythree shillings, ordinary terms or twenty-four shillings, rye terms (shippers guarantee sound condition on arrival). Libellants then decided to sell the cargo on board, at the shipper's risk in the port of New Orleans, with the privilege of the charter, and so notified Messrs. De Wolf & Hammond, at the same time giving the owners the option of taking the cargo at the price at which it had been sold to Forestier & Co. "Eleventh. On the sixth day of July the ship's agents notified Gomila & Co. that they would take out coal and make room for the balance of the cargo, and that the ship would be made ready by the 7th. Gomila & Co. refused this proposal. Statement of the Case. In the meantime Gomila & Co. had given notice, in the daily papers published in New Orleans, that the cargo would be sold at public auction, to the highest bidder, for cash, on July 7th, by one of the licensed auctioneers of the city. Against this proposed sale the agents made public protest on the part of the steamer, both on July 6th and 7th. The sale, however, took place as advertised, and the 9635 quarters then on board were sold for $29,622.84 to A. Carrière & Sons, with privilege of the charter. A. Carrière & Sons afterwards sold the cargo, with privilege of charter, to J. B. Camors & Co., and the latter in turn resold to Forestier & Co. for the sum of $40,422.00. The charter to Gomila & Co. having been destroyed by De Wolf, they made protest for substitute, and then for want of such charter used copy of one issued to Forestier & Co. to make title. "Twelfth. On July 13th, the stowage of the Deronda having been in the meantime rearranged, and a large quantity of coal and water, the latter from the ballast tanks, having been taken out, the Deronda was again tendered to both Gomila & Co. and to Forestier & Co., demanding balance of cargo. This was furnished by J. B. Camors & Co., and enough more grain was taken aboard to make over 10,000 quarters, with which the ship sailed, on the 18th of July, for her original destination, and there safely arrived and delivered cargo under the substitute for charter-party provided as explained in finding 11. * * * * * "Fourteenth. The carrying capacity of the Deronda for grain on voyages from New Orleans to Europe, when properly fitted out, was over 10,000 quarters, and she had, on a previous voyage, with 224 tons of coal in her bunkers, safely carried a cargo of 10,253 quarters of grain, but as she was fitted out and prepared and tendered, in the manner herein before found, to Gomila & Co., on June 28th, 1883, she could not with safety, under maritime and underwriters' rules, carry a cargo of 10,000 quarters, and she failed to receive such cargo, as hereinbefore found. By this failure the libellants lost the advantage of their said sale to Forestier & Co. VOL. CXXVIII-10 |