Page:Federal Reporter, 1st Series, Volume 10.djvu/161

WATTS V. CAMOBS. 149 �ralty law, I feel bound to lean to the equitable ruie as against the harsh one claimed. And I am inclined to the opinion that it is the duty of the United States courts, in exercisiug admiralty and mari- time jurisdiction, under the constitution to follow the general princi- ples of the admiralty and maritime law, as they are recognized and jrevail in the commercial world, rather than a narrow local law which may happen to prevail where a charter-party happens to be made, and which law was evidently not in the minds of the contract- ing parties. And there is authority for this position. See U. S. v. Bank, 1 Pet. lOe; The Bark Chusan, 2 Story, 456, �The reasoning in Neves v, Scott, 13 How. 268, would seem to apply to the admiralty and maritime law, as well as to the equity jurisdiction and law controlling the courts of the United States. �On the whole, I am disposed to hold in this case that the penalty stipulated in the charter-party cannot be considered as liquidated damages between the parties, but that the libellants can recover only the actual damages suffered by the default of the charterers. These actual damages are for (1) the expenses incurred in fitting the High- bury to receive a cargo of grain ; (2) the delay, after the expiration of the lay days stipulated in the charter-party, in obtaining and load- ing another cargo, to be allowed at the ratefixed in the contracta (3) the loss, if any, of freight on the cargo obtained, as against that con- tracted to be furnished by the defendants. �The defendants claim that it was the duty of the master and agents of the Ilighbury to have immediately sought another cargo on the first refusai of the defendants to accept the ship, and not have waited until the lay days had expired. Perhaps in some cases this might be Bo, but in this case I doubt if the master of the Highbury had a right to consider the first letter as a final refusai. The evidence of French, agent, is that he applied to Camors, defendant, for leave to load other cargo, and that Camors refused, and there was talk of arrangement and compromise, and even as late as September 29th letters in, relation Ihereto passed between the parties; and each side during the lay days was threatening the other with claims for viola- tion of the contract. So, I think, the master and agent of the High- bury had a right, and it was their duty, to wait such time as was necessary to put the defendants clearly in default. �A reference is necessary to ascertain the damages recoverable by the libellants before a final decree can be entered. ��� �