Page:Federal Reporter, 1st Series, Volume 5.djvu/144

 183 rEDEBAL BBPORTIIB. �part. Sufficient rags to be shipped to dunnage cargo ; and to pay to the said party of the first part, or agent, for the use of the said vessel during the voyage aforesaid the sum oi £1,925, say, nineteen hundred and twenty-five pounds ster- ling, in f uU for the round voyage, both out and home, of whicb iel,250, say, twelve hundred and fifty pounds sterling, oi its equivalent, is payable upon correct delivery of the outward cargo at port of diacharge in the Mediterranean, and the bal- ance, of amount of this charter, or its equivalent, to be paid upon correct delivery of the homeward cargo at the port oi discharge. " �Libellants fumished a full outward cargo, but tha vessel was found to have a capacity of only 1,085 tons, and her owners repaid to the libellant a proportionate amount of the j61,250 paid for the outward voyage. On her return voyage libellant furnished only a cargo of 600 tons of marble and about 120 tons of light cargo. Upon the completion of the homeward voyage the master retained out of freight collected from the consignees of the cargo the whole £675 stipulated to be paid for the return voyage. Libellants thereupon filed this libel, claiming a portion of this sum proportionate to the difference between the guarantied capacity and the actual capacity. Eespondents claimed that, as libellants had not furnished a full cargo, the fact that the vessel could not bave carried 1,250 tons was immaterial, and further alleged an agreement on the part of libellants not to make any claim for the deficiency in tonnage. �The district court dismissed the libel on the ground that, by the terms of the charter-party, the £675 was to be paid for a cargo of only 600 tons of marble, with sufficient rags for dunnage, which cargo had been carried. �Libellants appealed, and took depositions in the circuit court of witnesses who testified that vessels laden with mar- ble always brought home light cargo in addition, and that the reason for specifying in the charter-party the quantity of marble to be carried was because the insurance companie» objected to a vessel carrying over three-fourths of her regig- tered tonnage in marble. ����