Page:Federal Reporter, 1st Series, Volume 8.djvu/172

158 FBDEBAIi ftEPOJRtER. �In none of his letters did he report the taking of auy oil. When the letter of February 24th reaehed the respondent he was unable to procure suitable mates to go out and serve in the ship. �Under all the eircumstances, I am of opinion that the respondent was right, as a prudent owner, in concluding, upon the information in his possession, that the "voyage had failed and oould no longer be prosecuted successfully, and that he was justified in ordering the ship home. By the libellant 's own account, she was in no condition for whaling. To put her in sueh a condition it would be neeessary to send out from home a chief mate, at least, and the others as well, unless the respondent was willing to run the risk of the libellant's being able to find them at St. Helena, of which the likelihood was small. This risk he was not bound to incur, and as he was unable to procure suitable officers to send out, no other course seemed open to him than the one which he adopted. The libellant himself seems to have been well convinced at the time that the action of the re- spondent was wise. In a letter written home on the date he received the ordet to return, he wrote : �" I very reluctantly comply with your reqiiest. Your views may be right to a certain extent, as I am situated iiow, for we have seen sperm whales three times since we left MaJie Banks, but taken no oil. I believe if we had been properly manned we should have made a good show, although the chances were not the beat. I should have liked very much to have had a man, and taken the season off the river, then gone north, and anlshed up the time as per agreement. But as you think it best for all concerned that the ship shall return to New Bedford direct, I will bring her there as fast as wind and weather will permit." �This language may be fairly construed as an acknowledgment that the respondent's course was right and proper under the eircum- stances, and as an acquiescence in his decision. The voyage seems to have been unfortunate from the beginning, but through no fault of the libellant. �The case is certainly a hard one for him; and, although I am unable to find any way to award him damages on his contract, I shall not require him to pay costs. �Libel dismissed, without costs. ��� �