.2 THE' MARINE RECORD. <a> MARINE LAW. OIUIlTin PAHTT—CLASSIFICATION A CONDI¬ TION PRfcCEDKNT. JV«w Tori City Covrt, Trial Term. Jneob A. Jacobsou et al against William ■RucetCt nl. i_' ., The charter party described the vessel as A3 Norwegian Veritas, but It appears upon tho trial at tho time the chatter party was entered Into the had no such letter, but had been measured and was doubtless entitled to such a rating. Held. That this Was a-condittoti precedent, and that the ohart'erer was not bound to load her whoa tendered, even II she posse'sied her letter at the time of tender. The cases of Baetjer v. Bora. 7 Benedict, 380) and Anaberg v. Wright 80 Hun, 70 distinguished, and French v. Newgass (L. J. C. L. 361 approved. Hawes, J.—Tlioro Is nor, I think any dis¬ pute as to all the essential facts In this action. The defendants entered into a charter party on the 27th day ol February, 1882. ' The 'Instrument described the vessel as the "Bark Chapman, of AiiBberg, as Norwegian Veritas, A2, of the burljien of 125 tons. The ship was then lying In the l'oitot .Loudon »"d the contract was made In Now York! Upon her arrival in .Now Korbrlr was ascertained that she hud no cliiaslllcntlon whatever, although she htul been examined, but did not either upon her arrival or nhfle here have a certlflcale. Jt also appears that at the lime of the charter she was nor classed as A2 Norwegian Veritas, and defendant claims that owing to this tact lie was not liable under the charier parly. It seems to mo that the defense is valid In case tt should bo held that the classification was to be deemed a condition precedent. The statement as to her class was explicit and absolute, and 1 am unable to seo how It could be l|eld to be deecrlptlve In any general sense. Each vessel has a certain rating In the dlUoicnt Lloyds and she Is that or noth¬ ing. It is not, as |u tlio case of Baetjer v. Bora (7 Benedict, 280,) as If she were deemed to be rated as A2, or of a character to admit of such u rating, which-would, always leave It lu uncertainty, but abe is represented (• le posttvely of sucl) a grade, which Is well de¬ fined, and Is not a subject of estimate or conjecture. In this respect it seems to me that this base falls within the ruling In Ushed that whatever Is let forth In the charter party, at the time of entering Into It, whloh could bo deemed an essential dement, la a condition precedent. In a time charter tlmo Is of the essence of the contract, and* clasallloatlon Is even more vital, for all the charterer's rights depend upon It. The rate of Insurance and the ability'to obtain a load depend upon it; and In view of the praotlce which prevails iiulomz merchants and brokers of selling'these charter party rights, the classlflcatlnn must be deemed of the most Importance and as constituting the chief element of the contract. I have been unable to IInd any case In.tlie, English or American reports, whore tills pre¬ cise question has 'been raised, as they are generally^lnftahces where the charterer has deollned to load owing to the fact that uttlo lime of the tender the ship'was without a loiter. '1 he undoubted tendency ol admiralty decisions looks to the protection of the ship master, and the economy ol the law In that regard Is doubtless wise,- and the uniform rule has boon that the charterer muni take all tlio risks of the voyage. The ship owner can justly claim that he Is not an Insurer us was held In Hurst v. Osborne, supra,) and If a charterer enter* Into a charier at any par- tlciiluMlme-heJs4labJe\ioLtWjJojjdjllo!LoX THE ST. AND LAKE the vessel and the description of her at that time, and at that time only. It happens In the case at bar that the rule which hus almost Invariably been Invoked by the mas¬ ter, works an apparent hardship. His ship was doubtless of a rating that would justify her classification us A2 In the Norwegian Veritas, but this furnishes'no valid reason for overturning the law which has always favored him. It is suggested by the defendant that this description should be deemed a reprcsenta- tlon and not a condition precedent, and if I should so hold 1 think that the plaint ft" should recover under the nrooft-but" Heel quite sure that a warranty exists. There Is no descilpllun of the ship to the effect that she will, upon measurement, be found to be of snob a class. A warranty Is said to be a stipulation Inserted in a writing on the literal truth of wlilch the contract depends, and this may be said to be Us severest dellul- Hon. It his, to my mind, ;ione of the characteristics which pertain to a mere representation, for the classification as set ^m-T-%TT"»f°--r^H~'^'l^'nlrtrr-7^Jotln ln M* """r'pr n"rty establishes, as a where it Is held that "if the descriptive i alemeut was Intended to be a substantive pai t of the contract, It Is to be regarded as a warranty, that Is to say, a condition on the _ failure or non-performance of which the other party may, 11 he Is so minded, repudiate the contract into," and this would seem to be the uniform rule In all the caBes 1 have -examlped. In Slraonnsite v. Foster 2 Fed. Rep., 415 (he .representation in the charter party guaranteed that she should carry 1000 tons dead weight, whereas the survey showed that she could carry but 025 tons. Held,- thai the charteiers were not bound to accept the vessel. Ho lit case of Hurst v. Osborne (18 C. B , 144,) the shlp'was represented as "the good ship -die Elizabeth, Al;" but before her ai rival she lost her letter. Held, that the charterer was bound to loud, us all the re- qul-ites at the lime of making the charier party was fulfilled, and there'was no wairanty that It would be coutlniiei'. _In Finnch v. Nuwguss (47 L. J., N. ,S, O. L~, 301,) the charter party described the ship as AJt, and she wiib so classed at the lime of making the charter, but It was learned that an en or hud been committed mill liei olussllliullou wa» canceled. Held, Hint there had been no breach of warruntij, anil that the charterers were bound to load, bee also .Booth v. McMillan (8 H.&C.,750;) Tully v. iwwllng (2 Q, B. P„18ll). In Abrenburg v. Wright 30 Hun, 70) and Buetzer v. Bors (7 Benedict. 280 the questl in » lined upon the construction to bo given to the language, and in both of these cases the guaranty w»s »8 to the character ol the vos- »el to be subsequently determined, and could be held as descriptive ol what the ves¬ sel would be when properly classified, and li'wua not shown that she fell below the devci Iptiou the charterers were held liable. 'Neither of these cases can with an) pro¬ priety, be deemed analogous to the case at bar. • , * The rule would seem to be finally estub- pn.illve and undeniable fact, tlio homeol the ship, her character and reputation in the coin merolal world. Such a representation goes to the root of the contract, and this must be deemed the fair intention of the purtle-. It IsTiotTTcaae—where— the—maxim ^simplex compjehdatlo non obligat" would prevail, for representation crea e< all of value thai the there Is In the coutiuutso farts the churncter Is concerned and he |md a clear right to rely upon It us a witnanty of The; fact, and when It became known to hlnuhiit She hud no claBslliention he was justified In rejecting the charter and In refining to load. It Is claimed by plaintiff that the defend¬ ant waived his right by reason of his nego¬ tiations. Upon tin- arrival of the veiBel he went on° boiuil anil tumid that ihe had no class and Immediately wiote a letter declin¬ ing to loud, and his Interviews prior to that lime do not, -It seems to me, amount to a waiver of his lights under the contract. I have examined the lecord witli cure and I am tinsnle to discover any act which would cre¬ ate uii estoppel, oi would ln any Way de¬ prive him from declining to load w hen the vessel was tendered. It la perhaps proper that I should add that I concur with the plaintiff In his vlow of the measurement of the cargo upon which freight Is payable within the provision of rite charter party. I assume that the plain- tiff will not-serlously claim the conference before the produce exchange arose to the dignity of an arbitration In law which would In any sense be binding upon the defendants, and I lhave not therefore jllscusscd that phase of the case. Judgment for<lefendaut, with costs. George B. Foster for plaintiff; Heebc, Wil¬ cox £ Ilobb for defendant. Filed April 1,1884. LAWBENOE ONTARIO. In regard to the large.number of wrecks which have ocourred lu the Bt. Lawrence river the past soason permit us through your columns to oxpro-s an opinion on tho above, subject by which It will be seen that tho fault Is not altogethers, with the pilots em Kluyvd on-these vessels, but most of the lame rests on our legislator Who In tbrlaat few years past have boon seized with a mania of economy, by wlflch the public well&reas well as the different branches of the pujbllo service are to-day suffering. In the last thirty yeais pa.t, hardly anyliuprovemeuts have been made In the way of lights and buoys on the river from Cape Vincent to Ogdensbnrg, with the exception of a few buoys set u couple of years ago by the light¬ house tender "Hayes," and which are let out by contract tp be taken up In the fall, and reset in the spring, and they are seldom, found lu their right places, somu lying down flat on the water and others standing up and some of them not set out until the season Is well advanced; only One lighthouse has been built lately, (The Sisters,) otherwise'the river Is about the same us U was thirty years atifl, as tai* us liicllllles of navigation are con¬ cerned. In those days, vessels of llght>druft: of water were the ojily ones that navigated the river day aud.nlglit, and could make fast alongside of any rock that was nearest at hand if necessary, but not so now, since tbe opening of the new "Welland Canal," vessels and steatneis of large tonnage, and Tieavj <lralt-are-coi»liig-tlirougli_Lako_OjltarIo and seek the St. Lawience as the most practical water highwaj, and outlet to the seaboard fioin the gi -at lakes. Now sir, the great question Is this: "Is the livi-r St. Lawrence sufficiently lighted and b'lnyi'il to allow such eraIIs to navigate through salely on dark nights?. To that question we most emphatically ^answer" "No!" It Is not; there Is not a range light in the river to day, that is of any practical use at all, and the buoys can not bajeett at any dlntafice- at all id Ihe dark. Petitions havebeencirculated and signed by vessel owners, masters and pilot*, and presented to Congress for additional improvements, but nl ways lulled, as an example we will mention that apelltlon wns'slgiied and presented last whiter a liy number of citizen* interested In lake and river navigation in have a light erected on the Northwest point of Carlton Island, but no attention paid to It, although 'the mutter hus been ugliated for ihe last four years. With the present limited facilities, it requires skill and good judgment to navi¬ gate a steamer ot twelve to tilteen hundred tons burden, drawing 12 or 13 feet of water, through the Narrnwa of the St. Lawrence In a dark* uiglit. Thejllot or who ever is In charge hus to judge' the distance from the nearest shore the best he can, Which Is not an easy matter to do, and as for running the xiviLby_iiQUriCjLatejited_by compass It Is an islti •"■ " " GENERAL NEWS. The Cayuga Lake steamboats, four in number, whlolL were sold by the estate of tho Into T, D. Wilcox, have been purchased by an-Ithaca company. Artesian wella In New York show that the East river underflows the Island. In the deep wolls lately sunk the witter ebbs and flows with the tide. " "\ The House odmmlttee"on *lvers~and har¬ bor* has agreed to Insert In the river and harbor bill an Item of $800,000 lor the Ren. ncplu canal. , ' . • The steamer City of Portland, plying be.- tween Portland, Me., arid St. John. N. B. Btruok on a ledge offOwl's Head early Thurs¬ day morning, and ta breaking up. The passengers and officers kept cool, and no Uvea were lost, a sloop and steamer taking oil'all on board. CapWln M. Wyman died at Fair Haven; S< Y., a few daya ago, aged 95. years. He was a pilot on Lake Ontilrlo under com¬ mando of Chauncey ln the early part of the war of 1812. -For three years Captain Wy. mnn sailed upon salt water, and for thirty years upon the lakes, a considerable portion o' Ihe time In the employ of Bronson & Mo- ' Nalr, and was muster of a number of ves boIs, among thorn the Clarissa of Qcncaeo jHcLthe Henrietta, of Oswego. Afterward he engaged in sail making at Oswego. »t- It Is prodlcted by 'couipetent'juitliorllles that tbe output of this year from the Lake Superior region will considerably exreed that of 1883, when mined. impossibility to do so, the alwavs sheer the vessel Over to one side or the other, and then add bad steering, us those heavily loaded steamer* generally do In the river, It l« a wonder that more accidents do not occur. _ In fact Lake Ontario and river St. Law¬ rence are notoversi(icKe(iTrtflnlnrnerCTsary-|-for--I1 liicllllles for safe navigation of the large crafts that are at the present tlmo coming through the new, Welland Canal, and It Is clearlv to be seen-where the; fault Is; for In¬ stance a couple of years ago the main light al Charlotte harboi (Luke Ontario) was dis¬ continued and a little red light at the outer end ol the west pier left to mark the eutrajjee, and' being Pier Harbor It Is highly necessary that theie should be range lights In order to facilitate as much as possible, the entering of vessels, especially during heavy northeast gales, which make the entrance to Charlotte hat nor very dangeiouB In dark nights. Tho same time there was n rumor ntloat that the- Oswego main light would also be discontinued but lottiinately such n scheme nag trnstriuVd in time, as Oswego can not very well allord to dispense with any of lujr lights at the present time. On Lake Eric lust fall lu the Nnvembei gales u huge steamer sirundell on the Peninsula at the ami unco to Krlu lluihor. 'Ihe captain Ih his report deolaied that If (lie old light, which also for some reason or other hus been discontinued, hud been lighted the accident would not have oc¬ curred. Fioni the above we should come to the conclusion that our government con¬ siders human lives cheaper than kerosene oil and Unit nil such schemes were Invented by some nverzcalotts government official whose principal hobby Isto save oil. In conclusion permit us to state that the men employed as pilots or musters In our lake'merchant marine at the present day, are generally us capable as can be found anywhere, well used (o battle with the elemoiits In clofte quarters, where there la no searoom lo-depend on, constantly on the lookout for a lee shore and breakers ahead, There may be a few exceptions, but we con¬ sider the owners responsible In a good many eases lor hiring "cheap men," and ihey OPENING AT DULUTH. Statistics of the opening of navigation show that the average date of the opening of navigation at the head of t^ake Superior, for the 10 years endoil 1871, was May 1st; the averngo date at Buffalo for 01 years Is April 32d. In ,1872 the Ice left Oulnth harbor Maich Oth, and there was no further ob- Btruntlon to navigation, ln 1878 the first steamer arrived May 24th, but the ice did not entirely lenve until June 17th. In 1874 lee broke up April 26th; first steamer out May 4th. In 1875 Ice broke lip May 8th; first steamer out Mav lSth. In 1876 the lake did not close till February 2d, and the lor broke up Aprllt27th, but was held hare dm lug May and June by northeast winds. First steamer out Mny 7th, (If at In May 10th, but the fee obstructed navigation-more or less until June lOtli.In 18771ce disappeared April 5th, first steamer out April 20th, first in Mav 4th. In 1878 no ice formed, lake open all winter; tug went to Silver Islet in January and February. First steamer out April 14th r first steamer In from lower lakes, April 12lh. In 1879 the little ice farmed In thVend of the lake broke up March 12th. and the tug Slskiwft started for Prince Arthur's Landing Maroh 16th, and . made two trips before April 1st. The currenr^ill^-TH>rtli«ast-wlnd-bruugliUULlloailjig Ice, but^ the Manistee sailed on April 28th jUie Que¬ bec arrived May Oth, the first boat from tbe lower lakes, lu 1880 thetftst boat from be. low w as alsothe Quebec, date of arrival May 1st. In 1881 the Ice entirely disappeared April 27th; first departure. May 6th, a tug fnr :>»-A^Trfimlliiff|Jlrjt-jirrlvnl, t.h« Mania. tee. May 0th. from Houghton, where sba had wlnteied; flrst arrival from the low.er lakes, the Northerner, May 14th. In 1882 scarcely any lue formed at the head of tbe like; the D.M. Wilson left for Buffalo April IJBtli) flrst arrival from below, the N. K Fnlrbank, April 23d. Lust year, though the winter was very wild, little loe was formed, and It all left here April Oth; the Osceola left lor Butlslo Mav 2d, and the Manistee for Portage May 3d; the Wallula was the first boat to arrive from billow, May 14th, followed In a day or two by quite a fleet.— Duiuth New*. must abide by the consequences, sand we therefore consider It of the utmost Im¬ portance to urge by all means the necessity improvements and thai every possible thing should be done to promote the welfare of our Correspondenos tn 2,200,000 tons were k.dxe Merchant Marine, I <%«ns8ut; JVetoj. SS. STATE OF FLOB1DA. The captain of the Tltanln reports that on May 5th, at 6 p.m.. while proceeding up the Gulf, and oil Bird Books, observed u ship exhibiting two bright llghts.iind think¬ ing he wished to communicate, bore down upon him and took oil tw< uiy-lour pasjen- fters'and the crew rescued from the Stati of F|ui Ida, of Glasgow. The steamship City of Rome passed them while on board the ship Louisa und-answorcd their signal, but did not stop. The following is an official report ol the third officer of the Htate of Florida: Left New Yolk the 12th of April with about 107 passengers and crew and a full general car- no. All went well until the night of the 18th; at 11:30 came In lolllslon with the bark Ponemu. of Chatham, N. B., Captain Hot- burn. Both ships went down.almost in¬ stantly, and out of the steamer'! passengers, and crew only torty-four, Inoludlng the stewardess, managed to escape In the boats, and out of the bark's crew of thirteen, only tho captain and two seamen were saved. The next morning the bark was observeir bottom up. The survlvurj, .after bolng thirty-live hours In the boat without food or water, were rescued by the Norwegian bark Theresa, of Christiana, from that port bound to Quebec. On the 22d twenty four of them were traiiBferrod on board Iheshlu, Louisa, of and from Cardiff for Quebec, where they .remained until tho ,5th ol May, when they were taken on board the Tlfanla for Quebec. It Is believed 136 Uvea were I lost.