Vacarrezza v. 567,000 Gallons of Molasses

E.D. New York

Vacarrezza v. 567,000 Gallons of Molasses

149 F. 792, 1906 U.S. Dist. LEXIS 46

DecidedDecember 13, 1906

StatusPublished

This text of 149 F. 792 (Vacarrezza v. 567,000 Gallons of Molasses) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vacarrezza v. 567,000 Gallons of Molasses, 149 F. 792, 1906 U.S. Dist. LEXIS 46 (E.D.N.Y. 1906).

Pincite

Opinion

THOMAS, District Judge.

The steamship Margaretha was chartered pursuant to a representation that she had a certain carrying capacity, to wit, “3,150 tons all told; loads 2,900 tons molasses.” Whatever the obligation created by this representation, she had such capacity, and the charterers were by the charter entitled to the “whole reach, burthen, and passenger accommodation of the ship (not being more than, she can reasonably stow and carry) * * * reserving only proper and sufficient space for ship’s officers and crew, tackle, apparel, furniture, provisions stores, and fuel.” The ship was operated during 1903, 1904, to August, 1905, under the charter, or the charter modified and extended. The ship carried the German flag, until in January, 1905, her register was changed, and she carried the Italian, flag. Thereafter the charterer complained that the master would not load her to the capacity to which it was entitled, but stopped the loading when a certain draft was indicated by an English Plimsoll-mark which she bore. This complaint at times was justified; but at the end of each voyage, the account between the parties was scrutinized, an account stated, and the balance found due paid to the owner’s agent. It is considered that such adjustment forecloses any claim on the part of the owner, that as to such voyages the ship did not carry an adequate cargo. The charterer and master knew at the end of each voyage the exact amount carried; the complaint of insufficient carriage-had been made. The hire was “at the .rate of 10 shillings British-sterling per gross register, ton, per calendar month, * * * and [793]*793at and after the same rates for any part of a month.” The original charter was for four calendar months, with options for renewal, which the charterer exercised from time to time' until April 25, 1904, when it was agreed that the charter should be “continued for a further period of 12 months,” and “that the charterers shall have the option of continuing this charter for nine consecutive trips, trip by trip, on giving notice thereof to owners or their agents, 15 days previous to the expiration of the first-named time or any declared option, all other conditions same as present charter, except rate to be on new charter 9 shillings instead of 10 shillings as at present.”

The above option was exercised for four trips, when the charter was discontinued. It is considered that in the absence of fraud or mistake, the statement and payment of the account at the end of each trip settled the existing and recognized differences between the parties. All hire was paid trip by trip, save that the charterer refused to pay for the ship’s service for the last two trips, upon the ground that she had not while under the Italian flag carried a full cargo, and the charterer insisted upon a right to make deductions accordingly. The amount carried on the two last trips is known. It is evident that it was not in either case up to the carrying capacity of the ship, and the difference between such amount and 29,000 gallons should be credited to the charterer at the agreed rate per ton, and for the balance of the hire, subject to credits for coal and advances, the libelant should have a decree.

Free access — add to your briefcase to read the full text and ask questions with AI

THOMAS, District Judge.

The steamship Margaretha was chartered pursuant to a representation that she had a certain carrying capacity, to wit, “3,150 tons all told; loads 2,900 tons molasses.” Whatever the obligation created by this representation, she had such capacity, and the charterers were by the charter entitled to the “whole reach, burthen, and passenger accommodation of the ship (not being more than, she can reasonably stow and carry) * * * reserving only proper and sufficient space for ship’s officers and crew, tackle, apparel, furniture, provisions stores, and fuel.” The ship was operated during 1903, 1904, to August, 1905, under the charter, or the charter modified and extended. The ship carried the German flag, until in January, 1905, her register was changed, and she carried the Italian, flag. Thereafter the charterer complained that the master would not load her to the capacity to which it was entitled, but stopped the loading when a certain draft was indicated by an English Plimsoll-mark which she bore. This complaint at times was justified; but at the end of each voyage, the account between the parties was scrutinized, an account stated, and the balance found due paid to the owner’s agent. It is considered that such adjustment forecloses any claim on the part of the owner, that as to such voyages the ship did not carry an adequate cargo. The charterer and master knew at the end of each voyage the exact amount carried; the complaint of insufficient carriage-had been made. The hire was “at the .rate of 10 shillings British-sterling per gross register, ton, per calendar month, * * * and [793]*793at and after the same rates for any part of a month.” The original charter was for four calendar months, with options for renewal, which the charterer exercised from time to time' until April 25, 1904, when it was agreed that the charter should be “continued for a further period of 12 months,” and “that the charterers shall have the option of continuing this charter for nine consecutive trips, trip by trip, on giving notice thereof to owners or their agents, 15 days previous to the expiration of the first-named time or any declared option, all other conditions same as present charter, except rate to be on new charter 9 shillings instead of 10 shillings as at present.”

The above option was exercised for four trips, when the charter was discontinued. It is considered that in the absence of fraud or mistake, the statement and payment of the account at the end of each trip settled the existing and recognized differences between the parties. All hire was paid trip by trip, save that the charterer refused to pay for the ship’s service for the last two trips, upon the ground that she had not while under the Italian flag carried a full cargo, and the charterer insisted upon a right to make deductions accordingly. The amount carried on the two last trips is known. It is evident that it was not in either case up to the carrying capacity of the ship, and the difference between such amount and 29,000 gallons should be credited to the charterer at the agreed rate per ton, and for the balance of the hire, subject to credits for coal and advances, the libelant should have a decree.

Cite This Page — Counsel Stack

Bluebook (online)

149 F. 792, 1906 U.S. Dist. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vacarrezza-v-567000-gallons-of-molasses-nyed-1906.