The Sebastian Bach

12 F. 172, 1882 U.S. Dist. LEXIS 97

Opinion

Butler, D. J.

The claim is not sustained by the evidence. At the outset it was rested on an express contract to be ready to 'Start next morning at 3 o’clock. Failing in this it is now put upon an implied contract to be ready within a reasonable timo, and an allegation that the respondent was not so ready. It certainly was his duty to suffer no unnecessary delay in getting ready. But the evidence fails to show that he did suffer any unnecessary delay. To discuss it would be useless. It is true that the Whiting, which entered the Breakwater near the same time with the “Bach,” got ready much earlier — working until about 12 o’clock at night. She was a smaller vessel, however, and had all her preparations made for the work when she entered, while the “Bach” had to seek and procure materials. But that it is not usual to make such haste, and do such work at night, as the Whiting did, would seem to be shown by the libellant’s witness Minford, master of the Whiting’s tug. He says: “The Whiting sheathed that night, because I told the captain the way the weather was I thought if he would sheathe his vessel that night he would get up without trouble, and make an early start in the morning, which he did.” If the habit or custom was to do this work at night, Mr. Minford would have expected it to be done, and said nothing on the subject. He clearly recognized the option of the Whiting to do it or not. That the libellant did not expect the work on the Bach to be done earlier than it was, would seem quite clear from his failure to hurry it up, or complain, at the time.

Although the compensation for towing is included in the suit, the only subject of controversy is the one discussed. The respondent has at all times been willing to pay this compensation, and the libellant has so understood. It is not very important whether a technical tender was made or not. It was the demand for alleged detention, alone, that caused the litigation. While therefore the libellant must have a decree for the towage, the respondent should have costs. He has succeeded as respects the only subject in controversy.