Page:Federal Reporter, 1st Series, Volume 10.djvu/794

 782 FEDSBAIi BEFOBTEB. �The respondents must, therefore, be held answerable for the dam- ages to the libellant, so long as he acted upon and was legally justi- aed in acting upon this arrangement. This continued until the ship's agent was notified by the respondents to put the iron upon the wharf, and if it would not be received at the Atlantic dock to put it upon any other wharf where the ship could find a berth therefor. This was a revocation and abandonment by the respondents of the previous arrangement, leaving them answerable for the damages incurred by the Eoma up to that time. Thenceforward the Eoma was remitted to her original obligation to find her own berth for the delivery of the iron, in the absence of sufficient proof of any usage to exempt her from that duty. �Most of the subsequent detention arose from the claim of the ship's agent that the consignees were bound to provide a berth, doing noth- ing himself to that end during the pendency of the dispute on that subject. The fact that on December Ist a berth for the delivery of the rest of the iron upon a wharf was procured by the respondents, cannot be suffered to prejudice their legal rights, nor be taken as any evidence whatever as against them of any legal obligation on their part to provide a berth, as this obligation was all the while clearly and unequivocally denied by them. It would be not only unjust, but in the highest degree impolitic, in cases of disputed obli- gations, to suffer the voluntary efforts of either party, in terminating a dispute and stopping the increase of damages, to be turned against them in any subsequent litigation. Such efforts ought, on the con- trary, to be commended by the court as making for peace, and as evidences of an unlitigious animus. �The precise date when the respondents gave notice to the ship's agent to put the iron wherever he could find a wharf to receive it, does not, very clearly appear. It was before the lighter was sent, and after complaints of the delay had been made, and, as near as I can make out from the evidence, was about November 24th. As the ves- sel was ready to deliver by the 19th, and as ample notice had been previously given the respondents to be in readiness by that date, the respondents must answer for those five days' delay; and, as there is no reason to doubt that a berth for the delivery of the iron at the wharf could have been obtained at first, as well as on December Ist, or that the vessel would have gone there but for the arrangement made for delivering on lighters, the respondents should pay for the delay and costs of removal to the second berth. No evidence of the charges so incurred was given, nor any reasons ��� �