Page:Federal Reporter, 1st Series, Volume 9.djvu/444

 IB SENO CO. V, OOBBITT. e29 �the fact that the agent of the libellants for the negotiation of the charter may have known, or did know, the condition of the Garibaldi at the date ^of the charter-party, because he surveyed her a year before, or for any other reason. 1 Pars. Ship & Adm. 285, note 3. They undertook, without qualification or condition, that the vessel was "fit" not only to carry passengers generally, but also out of the port of Hong Kong, according to the laws and regulations thereof. �The Garibaldi appears to have been built at Stockton, California, in 1860, and had been engaged for some years in carrying passengers between Hong Kong and this port. By the survey at Hong Kong in January, 1880, she was found "not fit" to carry passengers, probably on account of weakness resulting from age. Hop Kee ,told the Chi- nese runners, when they came to him to purcbase tick^ta^for the pas- sage out, that the Garibaldi would not take them because Forbes said she was too old. The certificate says she is "tight, and in good order," but omitsto say that she is "staunch and strong," as represented in the charter-party. And it may be that the master jiid not object to the vessel being found unfit to carry passengers to Oregon, if she was thereby free to engage in a more profitable trade on the coast of China, where, according to the testimony of Noyes, the mate, she earned $1,400 in a voyage of a few days. Counsel for the, defendants also object that the certificate of the marine surveyor is not competent evi- dence of the unfitness of the Garibaldi to carry passengers. But it was an officiai act procured by the defendants, upon the strength of which the emigration office, according to the written statement of the master delivered to Hop Kee, refused to permit the vessel to carry passengers out of the port. If the certificate is true, as prima facie it is, then undoubtedly the defendants failed to keep their agreement that "the said vessel shall be tight, staunch, strong, and in every way fitted and provided for said voyage;" and if it is not true, and the order therepn refusing to permit the Garibaldi to carry passengers was wrongfully made, the resuit is the same, because the defendants not only undertook that their vessel was in a condition to carry pas- sengers out of Hong Kong, but that she would do so without any qualification or condition, as that she should be found qualified or per- mitted to do so by the local authorities. �In Paradine v. Jane, Aleyn, 26, the court said : �" When the party, by his owa contract, creates a duty or charge npon him- self, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have guarded against it by his con- tract." ��� �