Page:Federal Reporter, 1st Series, Volume 7.djvu/256

 244 FEDERAL REPORTER. �neys upon the examination of claimanf's witnesses in Georgia, it appearing that a persistent attempt had been made to defraud the court, and obtain the discharge of the cargo from custody upon worth- less security. �In Admiralty. �Hill, Wing e Shoudy, for libellant. �H. F. Averill, for claimants. �Bbnediot, D. J. It is useless in this case to determine whether the ship-owner i8 entitled, under the charter- party, to any greater sum than the $4,750 named in the bill of lad- ing as the amount of freight and demarrage, for the reason that the amount named in the bill of lading is greater than the prooeeds of the property in the registry. �The only point requking determination is'whether the action must be dismissed as prematurely brought. The libei was filed on the t^enty-fourth: day of May, 1880, and, as appcars by the marshai's retum, the lumberi was. seized by him on that day by virtue of process issuedau this action. When the cargo "was so seized the vessel was lying at a wharf designated by the charterers, and a portion of the cargo had been discharged upon that wharf. The point made by the claimant is that in order to maintain the action the caei-go must be shown to hatebfeefidtBchat'ged frouitherVeeael and a tender of it thereaf ter 'mkde upon payment of the amount due. But, if such be conceded to be the general rule, it is not without exceptions. Here an exception is created by the facts proved, which, taken together, show that the charterers had no money to pay either freight or demurrage, and their action was such as to warrant the ship-owner in concluding that a tender of the cargo would have been a yain formality. There was in fact no readiness on the part of the charterers to pay either freight or demurrage, and the ship- owner had reason to suppose that there was no intention to pay either freight or demurrage, Under the cireumstances, therefore, the acts of the charterers must be deemed awaiver of any tender of the cargo, and the suit, which, it must be re- membered, was in fact for demurrage to the amount of ��� �