Page:Federal Reporter, 1st Series, Volume 10.djvu/160

 148 FEDERAI* EEPOBTBR. �aa it wag not fraudaient, and did not entrap or mislead the defend- ants, will not vitiate the eontract, although the actual measurements oxceeded the representation by some 100 tons. See Ashburner v. Balchen, 3 Selden, 262; Barker v. Windle, 6 Ellis & Black, 675; Thomas v. Clarke, 2 Starkie, i50. �The authorities cited by defendants' proctor all cover cases where the misrepresentations affected the time of receivhig or delivering the cargo, or of the sailing or arrivai of the veasel, which may well enter into the object and consideration of the eontract. To my mind it is clear that the defendants were in default for not complying with their eontract, and are iiable for the damages resulting. What is the rule of damages is to me a very serions question. �The libellants claim that, as the eontract was entered into in Lou- isiana, the law of Louisiana forms part of the eontract, and under that law (Civil Code, arts. 2117-2129) the full amount of the stip- ulated penalty, the estimated amount of freight, is claimed. The defendants claim that the charter-party is an admiralty eontract, to be enforced and construed by the settled principles of admiralty law ; wherever the eontract is made, that it is usually made on land, must be made somewhere, but wherever made, does not change or affect the principles of admiralty law which a court of admiralty enforces. And they daim, under the admiralty and commercial law, that the stipulated penalty in this case in the charter-party should not be treated as liquidated damages, but as a mere covenant to pay actual damages. �The learned proctors on each side have made strong arguments, well supported by authorities, — that for the libellant being particu- larly logieal and forcible, and almost compelling conviction, but for the harsh resulta following its application. And it might be here noticed that under the Louisiana law, as claimed, it is only where there is a total breach that the total amount of the penalty can be exacted. SeeEev. Civil Code, art. 2127. �The rule of damages as claimed by the defendants is the more equitable. It is the rule that prevails in the commercial world, and ia the one recognized in all the text-books. See 1 Parsons, Adm. Law. 247, 248; Story, Cont. § 1022; Sedgw. Dam. 436, § 301; Conk- ling, Adm. verho "Affreightments;" Abbott, Ship. 285. �The harsh rule claimed by libellant may be, and I am inclined to think is, the law of Louisiana, (Kev. Civil Code, arts. 2117 et seq.,) and in her courts, or on the law side of this circuit court, I might, in proper cases, enforce it ; but sitting in admiralty, enforcing admi- ��� �