Beecher v. Bechtel. York, and left for another port, in ballast, after full notice to the agent of his intention so to do, unless the cargo of the vessel was completed. A good deal of evidence has been taken on both sides upon the point as to whether or not the port-hole could have been enlarged without injuring the strength and affecting the seaworthiness of the vessel. It is exceedingly doubtful, upon the evidence, whether or not the necessary alteration could have been made without permanently disabling her and rendering her unseaworthy; and the estimate of the expense varies from fifteen dollars to three hundred dollars, according to the various witnesses. I shall not undertake to weigh this evidence, as it respects the question either of the practicability of the alteration or of its cost; for, in my judgment, the owners, upon any just and proper construction of the charterparty, were not bound to make or submit to the required. change. The charter was entered into in the city of New York, and the vessel lay in that port at the time. An opportunity was thus afforded to the charterers to make any examination of her they might desire. Her tonnage is specified in the charter-party, and the only covenants entered into by her owners, in respect to her character and condition, are, that she shall be seaworthy; that, during the voyage, she shall be kept tight, staunch, well fitted and tackled, and provided with every requisite, and with men and provisions necessary for the voyage; and that she shall receive on board all such lawful goods and merchandise as the charterers may see proper to ship, the same to be properly stowed by the ship's crew, or by such other suitable persons as the captain may employ, at the vessel's expense; the charterers agreeing to furnish a full and complete cargo of lumber and timber. I agree that, if the owners had undertaken to convey from Charleston to Barcelona a given quantity of lumber and timber generally, for a specified price, they would have been bound to furnish a vessel that could have received and shipped any description of the article mentioned, which, according to Beecher v. Bechtel. the usage and custom of the trade, was ordinarily shipped at the former port. Such would have been the fair and reasonable import of the contract. But here, no such contract has been entered into. The owners have simply chartered their vessel, and have stipulated that the whole of it, with the exceptions stated, shall be at the sole use and disposal of the charterers during the voyage; and that no goods or merchandise whatever shall be laden on board, otherwise than by them or their agents, without their consent. It is an engagement, therefore, on the part of the owners, not that they will convey between the ports mentioned a given amount of lumber and timber for the price mentioned, but that the vessel named shall be employed, for the particular voyage, in the conveyance of those articles. It seems to me clear, therefore, that the undertaking of the charterers is to furnish a cargo, at the port designated, of such lumber as is suitable to the capacity and condition of the vessel; and that it would be carrying the contract beyond the intent and scope of it, to consider the same as an engagement to convey a given quantity of the article generally, without regard to the means of conveyance. Some evidence has been given tending to show that it is not unusual to enlarge the port-holes of vessels employed in the conveyance of lumber, to enable them to receive on board spars of the size of those delivered in this case. But the evidence is slight, and does not approach to the establishment of a usage or custom in the trade, especially in the case of a charter-party like the one in question. It may well be that an owner who enters into an engagement generally, to convey a given quantity of lumber and timber, might find it necessary to alter materially the construction of his vessel, to enable him to comply with the terms and conditions of his obligation, as, under such a charter, he would be bound to carry any description of the article within the usage and custom of the trade. Under such a contract, there would be no reference to any particular vessel or mode of conveyance. But where, as in the present case, a particular vessel has been Dedekam v. Vose. chartered for the conveyance of a cargo of lumber, the obligation is different, and the charterers are, in respect to the cargo to be furnished, bound to regard the capacity and condition of the vessel. I agree, that changes of a temporary character, as it respects the interior of the vessel, such as may be usual and customary in the trade, for the accommodation of the cargo, may be proper and within the duty of the owners. But changes affecting her safety and seaworthiness, and thereby permanently lessening her value, cannot, it seems to me, be regarded as falling within the contract; and this, even assuming that it may be matter of doubt whether the damage to the vessel will or will not be serious and permaThe contract, in my judgment, does not impose upon the owners the hazard of the contingency supposed. nent. Upon the view, therefore, which I am obliged to take of the case, I think that the decree below is erroneous, and should be reversed. There must be a reference to the Clerk to ascertain the loss and damage sustained by the libellants. ANDRES DEDEKAM vs. FRANCIS VOSE AND OTHERS. The words "not accountable for rust," in a bill of lading of iron, do not exempt the owner of the vessel from responsibility for damage by rust to the iron, caused by its having been improperly stowed by such owner. When sued for the freight on such iron, its owner is entitled to an abatement of the freight, to the extent of the damage to the iron. Where, before suit was brought for the freight, the owner of the iron offered to pay the balance of the freight, deducting such damage, to be ascertained by arbitration or by a sale of the damaged iron at auction, but this was refused and the whole amount of the freight was demanded, and, afterwards, the damage was ascertained by such a sale, on notice to the owner of the vessel, but no offer was made to pay the balance so ascertained, till it was made in the answer in the suit: Held, that, in a Court of Admiralty, the circumstances were equivalent to a tender after the sale and before suit brought. (Before NELSON, J., Southern District of New York, September 24th, 1853). Dedekam v. Vose. THIS was a libel in personam, filed in the District Court, by the owner of the brig Brodrene, to recover freight for the conveyance of certain bundles of nail-rod iron, in that vessel, from Newcastle-upon-Tyne to New York. The bill of lading of the iron was dated May 15th, 1850, and contained, at the foot of it, the exception, "not accountable for rust." On the discharge of the cargo, a portion of the iron was found to be injured by rust. The consignees claimed a deduction from the freight of the amount of the damage to the iron, which was refused. This libel was then filed, claiming the whole amount of the freight. The answer set up that the damage to the iron was occasioned by bad stowage; that it was sold at auction, after notice to the agents of the vessel; that the loss occasioned by the rust amounted to $164 14; and that a tender of the amount of the freight over and above that sum was made before the libel was filed. The respondents also brought into Court, with their answer, the amount of the tender. Evidence was taken in the District Court in respect to the stowage of the iron, by which it appeared that the portion damaged by rust was stowed at the bottom of the ship, under a large quantity of coal, and that the rust was occasioned by such stowage. The District Court held the tender sufficient to cover the balance of the freight over and above the damage, and dismissed the libel. From that decree the libellant appealed to this Court. The other facts are sufficiently stated in the opinion of the Court. George F. Betts and Charles Donohue, for the libellant. Erastus C. Benedict, for the respondents. NELSON, J. It is urged, on this appeal, that the exception in the bill of lading exempts the owner from responsibility for the damage, although the rust be attributed to the defective stowage. But I cannot agree to this doctrine. Even in the case of the usual exception of "the dangers of the sea," if it can be shown that the goods might have been saved by the Dedekam v. Vose. due and proper care and diligence of the master and crew, notwithstanding the peril, the vessel is answerable for the loss. These exceptions in bills of lading do not cover negligence or want of care on the part of the carrier. Whether carriers or other employes can stipulate for exemption from liability for negligence or unskilfulness in the fulfilment of their undertakings, within sound principles of public policy, is, perhaps, not exactly judicially settled; but, it may, at least, be safely said, that if any such exemption can be set up, it must be in pursuance of an express and positive agreement to that effect, or, what may be the same thing, necessary and unavoidable implication. Nothing of the kind appears in the bill of lading in this case. It is conceded that the rust was occasioned by negligence or unskilfulness in the stowage. The bundles of iron stowed upon the top of the coal were discharged in good order, while those under it, at the bottom of the vessel, were more or less damaged by the rust. The carrier, therefore, was clearly liable for this damage. There is a little difficulty upon the question of the tender, on account of the confusion and want of precision in the evidence relied on to establish it. There is no doubt that the respondents are entitled to an abatement of the freight claimed, to the extent of the damage to the iron. But, in order to avoid being charged with costs, or, at least, to entitle themselves to costs, they must show that they made a tender, or what, in the Admiralty, will be regarded as an equivalent, before the suit was brought. It is in proof, that an offer was repeatedly made, before suit, to pay the balance of the freight, deducting this loss, to be ascertained by arbitration, or by a sale of the damaged iron at auction, but that this was refused, and that the whole amount of the freight was demanded; also, that, after this, a sale of the damaged iron at auction took place, with notice to the agents of the vessel, and that the amount of the loss was in this way ascertained. But there seems to have been no offer actually made to pay the balance, after thus ascertaining it, till the offer that was made on the filing of the answer. It is quite clear, however, that a tender |