The New England Screw Company v. Bliven. pense at $2500 or $3000. Another witness states that it would have cost $800 or $1000 to put her joiner work in good order. All this is very unsatisfactory, and subject to abuse in making up an account to the extent of the injuries to the vessel. I think $2500 in this case a liberal compensation to the owners, master and hands of the Delaware for the detention and service, including the injury to the vessel, and shall modify the decree so as to reduce it to this amount, without costs on either side in this Court, and apportion the $2500 as follows: $2000 to the owners of the Delaware; $100 to the master, and the same to the mate; and the residue to be divided equally among the representatives of Leland, and the other persons composing the crew of the vessel. THE NEW ENGLAND SCREW COMPANY vs. CHARLES BLIVEN AND EDWARD B. MEAD. CHARLES BLIVEN AND EDWARD B. MEAD vs. THE NEW ENGLAND SCREW COMPANY. A customer, who has dealt with his vendor in conformity with a usage known to the customer, in regard to filling orders for goods, must, if he sues for a breach of contract by the vendor in not filling orders, establish a right superior to that arising out of such usage, or else he cannot recover, provided he has been treated fairly, in conformity with such usage. (Before NELSON, J., Southern District of New York, September 23d, 1857.) THE first of these suits was an action to recover a balance due to the plaintiffs for screws delivered to the defendants. The second was an action to recover damages for an alleged VOL. IV.-7 The New England Screw Company v. Bliven. breach of contract in not filling orders for screws. On the trials, verdicts were taken for the plaintiffs severally, subject to the opinion of the Court, upon cases to be made. Edwin W. Stoughton, for the Company. George William Wright, for Bliven and Mead. NELSON, J. On looking into the facts, I am satisfied that the plaintiffs in the first suit are entitled to a judgment for $1,990.01, with interest from September 27th, 1853. The evidence in the second suit is full to show the usage of the Company in filling the orders of their customers, and that it was known to these parties; and, also, that their dealings with the Company from its commencement had been in conformity with it. The usage was, on receiving orders from their customers, to file them away and fill them up in turn, in proportion to other orders on hand at the same time to be filled up. The Company had from five to six hundred customers, with standing orders, to be filled as fast a practicable, or, as the capacity to manufacture screws would permit. For some time, the gimlet or sharp-pointed screws, as they were called, were manufactured at no other establishment, and the demand for the article seems to have been very great. For aught that appears in the case, the parties here were dealt with upon the same footing as other customers of the Company. Many of the orders were not filled in six months or a year, and some never in full. The course of the usage necessarily left the apportionment of the screws, as manufactured, upon the orders on hand, to the discretion of the Company. But, if otherwise, it would be an endless undertaking to ascertain, with any degree of certainty, whether the apportionment had been pro rata, in the filling up of some five or six hundred orders; and, without such an inquiry, it would be impossible to ascertain whether injustice was done to these parties or not. An effort has been made to take the order given on the 15th of October, 1852, out of the usage, on the ground that Parsons v. Ogden. it was accepted absolutely, to be filled on the 15th of March, and the 15th of April following. But, on looking into the evidence on the subject, and the circumstances under which the order was given and accepted, I am satisfied that it forms no exception to the general usage, and was accepted subject to it. These parties seem to have been fairly dealt with, the same as all other customers, and, unless they can establish some right superior to that arising out of the usage, in filling their orders, they have no well-founded ground of complaint. No such right has, in my judgment, been established, and I am, therefore, satisfied that judgment should be rendered in favor of the Company, in the second suit.* JOTHAM PARSONS AND OTHERS vs. DAVID OGDEN. In this case, which was a suit for freight money on the charter of a vessel, the Court held that the master of the vessel wrongfully refused to permit her to be laden in accordance with the charter-party, and that the damage sustained by the charterer on account of such non-compliance with the charter-party ought to be deducted from the freight. But, to save expense and prevent delay, the Court, instead of sending the case to the Clerk, to take proof as to such damage, made the deduction itself, and modified the decree below to that extent. No costs were allowed to either party, on the appeal. (Before NELSON, J., Southern District of New York, September 23d, 1857.) THIS was a libel in personam, filed in the District Court, by the owners of the ship Hemisphere, to recover the freight money on a charter-party. The whole of the vessel, except the deck, room for crew, &c., was chartered to the respondent, *This decision was affirmed by the Supreme Court, on writ of error. (See Bliven v. The New England Screw Co., 23 How., 420, 433.) Parsons v. Ogden. for a voyage from Liverpool to New York. He was to supply her with a full cargo of general merchandise, and not exceeding five hundred and thirteen passengers, second cabin and steerage, and the ship was not to take exceeding her registered tonnage of iron. This was one thousand and twenty tons. The charterer was to pay, for the hire of the vessel, the round sum of £1,500 sterling. A dispute arose between the captain and the consignee at Liverpool, in respect to the stowing of the goods. The former refused to stow the iron in the hold, to the extent of the quantity mentioned in the charter-party, but stowed part of it between decks; and, in consequence, the vessel was unable to carry the number of passengers mentioned. She was laden with only some 923 tons of dead freight, and 374 tons admeasurement, together with 363 passengers. She had, on a previous voyage from Liverpool to New York, carried a larger freight of the same description, and her full complement of passengers. The District Court decreed for the libellants, and the respondent appealed to this Court. Charles Donohue and John E. Parsons, for the libellants. Francis B. Cutting, for the respondent. NELSON, J. The charter-party is carelessly drawn, and it is perhaps difficult to say that it contains a warranty or covenant to carry the freight and passengers mentioned in it, as was probably intended. But I am satisfied that both parties contemplated, at the time, that freight and passengers to the extent and number mentioned were to be carried, it furnished by the charterer. The measure of compensation was doubtless regulated very much thereby. I am, also, satisfied that the vessel had sufficient capacity to comply, in this respect, with the terms of the charter; and that the captain wrongfully refused to permit her to be thus laden. I had doubts, on the first hearing, whether or not the testimony of J. C. Taylor was admissible, or the case would then have been disposed of according to the view above stated. It is pretty The Washington. certain, upon the further testimony on this point, that a release was executed to him by the respondent, before his testimony was taken. The vessel should have carried some 150 passengers more than were taken on board. I think the proof full that they . could have been furnished, and that a considerable number had been engaged, and were obliged to be sent by other vessels. The case, upon the view I have taken, should be sent to the Clerk, to take proofs as to the damage sustained on account of the non-compliance with the charter-party, and which should be deducted from the freight. But, to save expense, and prevent further delay, I shall make the deduction myself, and shall accordingly direct that the decree below be modified, by deducting therefrom the sum of $1200, and that no costs be recovered by either party on the appeal.* THE WASHINGTON. A libel of information against a vessel, to procure her forfeiture for a violation of the revenue laws, must aver that she has been seized for the offence, and that the seizure still subsists. The seizure is a jurisdictional fact, and the absence from the libel of any averment of such seizure is a defect of which advantage may be taken at any stage of the cause. Libel dismissed, for want of such averment. (Before NELSON, J., Southern District of New York, September 25th, 1857.) THIS was a libel of information, filed in rem, by the United States, in the District Court, against the steamship Washington, to procure her forfeiture for a violation of the revenue laws. The Ocean Steam Navigation Company intervened, as claimants of the vessel, and excepted to the libel, on *This decision was affirmed by the Supreme Court, on appeal. (See Ogden v. Parsons, 23 How., 167.) |