Page:Federal Reporter, 1st Series, Volume 4.djvu/190

 176 FEDERAL REPORTER. �the water and state of the tides permitted. Two replies may be made to this suggestion — First, the fact is by no means established that the Castalia "would have grounded if she had been fuUy loaded on the twentieth of February, The evidence is that her master sounded in the dock and reported there was Buffioient water, and he repeatedly demanded his cargo. Sec-- ondly, the record in the district court in the suit for demarrage is conclusive that the ship was not in fault, but that she was entitled to, and did recover, damages for the delay occasioned by the neglect to furnish her with a cargo at the time stipu- lated in the contract. After the notice given to the plaintiffs, it was their duty to have appeared in that suit and then inter- posed this defence, if they would avail themselves of it. Not having done so they must abide the consequences of their neglect, and are not now at liberty in this suit to contest the matters involved in the claims made in that libel, one of which was whether the ship had a valid claim for demurrage. That point having been there adjudicated in her favor, the same is no longer open for controversy. �The remaining cause suggested by the plaintiffs, for which they should be exonerated from liability to indemnify the defendant, is that the Castalia had no legal claim for demur- rage, as she was loaded in her turn, and by the rules of the ooal Company vessels were to be loaded as they reported at the office of the company; but this defence to the set-off, in the opinion of the court, is also closed to the plaintiffs, as the decree of the district court determined that there was a valid claim in the ship's behalf for the damages caused by the delay to provide her with a cargo. If the ship was bound to wait her turn, and was loaded in her turn, then, of course, there was no fault on the part of the plaintiffs, and no good ground for claiming demurrage ; but this question is involved directly in the decree in the district court, and was there adju- dicated, and such decree is binding on the parties to this cause. If this view of the effect of the decree of the district court is, however, erroneous, and the question is now open for consid- eration, the same resuit must foUow, as by the contract be- tween the parties to the present suit the cargo was to be loaded ����