Balfour v. The Director

(orally.') Three points are made by counsel for the claimants and appellants against the findings and decree of the lower court: (1) That the possession of the wheat and damages for the breach of warranty of seaworthiness cannot be recovered in one suit; (2) that the libel-ants, having sold the cargo of wheat to arrive in Liverpool, cannot maintain a suit to recover possession of the same, notwithstanding the repudiation of the sale and the return to the libelants of the bill of lading by the purchaser; and (3) the vessel was seaworthy at the date of the charter-party, or was made so before the expiration of the lay-days.

The first two of these points involve questions of law. Upon both reason and authority, I think the libelants are entitled to join the cause of suit for possession of the wheat with that for damages in one libel. They are also entitled, as against the claimants, to maintain the suit for the possession of the wheat. The sale in Liverpool has been repudiated by the purchaser, and the bills of lading returned to the libelants. The fact that the libelants may also intend to hold the purchaser liable in damages for such repudiation, if the law will permit, does not affect their right to the possession of the wheat, as against tlie claimants.

*336On the question of seaworthiness, I have read the testimony carefully, and am satisfied that at the date of the charter-party the Director, contrary to the implied, as well as the express, warranty therein, was altogether unseaworthy; and the subsequent repairs did not make her seaworthy for such a voyage and cargo'. The mere fact that she only brought $3,0.00 at the, marshal’s sale, after near $5,000 of repairs had been made upon her, is itself satisfactory evidence of her inherent weakness, and that nothing short of rebuilding her would make her seaworthy.

In conclusion I adopt the findings of the district judge, both of fact and law, and for the reasons given in his opinion, to which I can add nothing.

There must be a decree for the libelants accordingly.