Case No. 4,345.

The ELI WHITNEY.

[1 Blatchf. 360.]¹

Circuit Court, S. D. New York.

Oct. Term, 1848.²

CHARTER-PARTY—MISREPRESENTATION AS TO TONNAGE—LIBEL IN REM.

1. Parol evidence is inadmissible to enlarge or vary the terms of a charter-party.

[Distinguished in The Baracoa, 44 Fed. 103.]

2. In the case of a charter-party, a suit in rem against the vessel is not maintainable for the misrepresentation or concealment of facts by her master or owner in respect to her tonnage or capacity.

[Cited in Baker v. Ward, Case No. 785; Williams v. Providence Washington Ins. Co., 56 Fed. 160. Distinguished in The Electron, 48 Fed. 690.]

[Appeal from the district court of the United States for the southern district of New York.]

Balchen & Schmidt, of New-York, filed a libel in rem in the district court against the ship Eli Whitney, for an alleged breach of a charter-party for a voyage from New-York to Bremen, in that the master had refused to receive on board the full amount of cargo that was stipulated for according to the terms of the charter-party. The decree of the district court was against the libellants [Case No. 792a], and they appealed to this court.

THE COURT held that parol evidence was inadmissible to enlarge or vary the terms of the charter-party, there being no stipulation in it as to the precise amount of cargo to be carried, and that, in the case of a charter-party, a suit in rem was not maintainable for the misrepresentation or concealment of facts by the master or owner of a vessel in respect to her tonnage or capacity.

Decree affirmed.

¹ [Reported by Samuel Blatchford, Esq., and here reprinted by permission.]

² [Affirming Case No. 792a.]

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