The Mispah

17 F. Cas. 477, 5 Reporter, 519, 1878 U.S. App. LEXIS 1942

• Court: U.S. Circuit Court for the District of Delaware
• Decided: April 1, 1878
• Status: Published

Opinion

MeKENNAN, Circuit Judge.

I think the court below was right in holding that charterers were in culpable default in refusing to pay the demurrage confessedly due the master, or to make such an indorsement on the bills of lading as would evince his right to enforce his lien upon the cargo for it at the port of-discharge. I am also of opinion that the master mistook his remedy for this wrong; that when he sailed from the port of Philadelphia without first signing proper bills of lading, he violated the charter party, and that the vessel is liable for the damages directly resulting from this unwarranted departure. But the method adopted in the assessment of damages was clearly erroneous. The master was in no sense a trespasser. He was lawfully in possession of the cargo in pursuance of the charter party, and his liability occurred solely from his breach of one of its stipulations, which required him to sign bills of lading before sailing. It was therefore simply a cause of contract, and is properly exclusively so treated in the libel. Even then, if the master’s conduct had been attended by circumstances of aggravation,which would in an action of trespass justify the imposition of exemplary damages under the form of libel, the libellants are entitled to compensatory damages merely, and these are to be measured by the expenses incurred in pursuing the vessel and asserting their right to the fulfilment of the charter party. The expenses thus incurred are shown to amount to $225, and for this sum there must be a decree-with the costs of the suit in the district court --, the costs of this court to be paid by libellants.