258 F. 180 | 5th Cir. | 1919
This was a libel in admiralty by the owners of the American schooner Addison E. Bullard against the cargo of timber and lumber loaded thereon at the port of Pensacola, and Allen & Friedrichs, the charterers “of the whole of said vessel (with the exception of the cabin, and the necessary room for crew and storage of provisions, 'sails, and. cables), or necessary room for the cargo hereafter mentioned”; the thereinafter mentioned cargo being “lawful merchandise, understood no explosives to be shipped.” The claim was for the amount of the charter rate of freight on 2,250 tons of cargo, and was based on the terms of a charter party by which the charterers agreed to pay the libelant—
"For the use of said vessel (luring* the voyage aforesaid at the rato of thirty ami 00/100 dollars ($130.00) per ¡jross Ion of 2,2 >¡0 pounds delivered to vessel, bnl charterers In pan freight op not less than 2,BHO gross tons, vessel’s dead weight capacity. Weight prepaid on signing hills of lading, payable in United States currency. Prepaid freight earned, relamed and irrevocable. * * * ll is understood and agreed that the vessel has a lien upon the cargo for al! freight, dead freight and demurrage.”
The libel averred that the schooner was by the charterers loaded with a full and complete cargo of timber and lumber, that such cargo was less Ilian 2,250 tons in weight, and that the charterers and their agents refused to pay freight at the charter rate on 2,250 tons of freight, but insisted on the master signing clean bills of lading for the cargo upon the charterers’ paying a much less sum, and that the master offered*and remained willing to sign bills of lading for the cargo upon the payment of freight at the charter rate on 2,250 tons. After the libel was filed, under an agreement made, the vessel accepted without prejudice an amount, less than that claimed, signed bills of lading for the cargo, proceeded on the voyage, and delivered the cargo at Genoa, Italy, the destination stated in the bills of lading. It was provided in that agreement that the question of the libelant’s right to the amount of the difference between what was so paid and what libelant claimed should be adjudicated in this case. The appeal is from a decree sustaining the libelant’s claim.
“It is understood and agreed that the vessel has a lien upon the cargo for all,freight, dead freight and demurrage.”
When a contract is in part printed and in part written or typewritten, the printed part is to be given the effect called for by its language, except in so far as it is inconsistent or incompatible with the written or typewritten part. There is no inconsistency or incompatibility between the last-quoted provision and the typewritten part of' the charter party. The stipulations to the effect that freight was to be prepaid on signing bills of lading, and that prepaid freight was to be considered as earned, and was to' be retained and irrevocable, are entirely consistent with the stipulation to the effect that the vessel has a lien for all freight, dead freight and demurrage. A lien may be created by contract between the parties, not only for freight, but for dead freight, demurrage and as many more of the usual claims of the shipowner as they may choose to name. The Peer of the Realm (C. C) 19 Fed. 216. Where, as in the instant case, it is stipulated that all the freight to accrue is to be prepaid, that prepaid freight is to be considered as earned and to be irrevocable, and that the vessel has a lien for all freight, it is made clear that a lien is given and made enforceable for the freight from the time it is du^ to be prepaid. The language used in the charter party does not léave it in doubt that what was required to be “prepaid on signing bills of lading” was freight in the sense in which that word is understood in maritime law. The Bird of Paradise, 5 Wall. 545, 18 L. Ed. 662. Under such a contract the accrual of the lien is not postponed until the vessel breaks ground. International Paper Co. v. Schooner Gracie D. Chambers (Jan. 13, 1919) 248 U. S. 387, 39 Sup. Ct. 149, 63 L. Ed. 318; Allanwilde Transport Co. v. Vacuum Oil Co. (Jan. 13, 1919) 248 U. S. 377, 39 Sup. Ct. 147, 63 L. Ed. 312; Standard Varnish Works v. Steamship Bris (Jan. 13, 1919) 248 U. S. 392, 39 Sup. Ct. 150, 63 L. Ed. 321. As said in the opinion rendered in the last-cited case;
“The words ‘prepaid freight to be considered as earned’ declared a completed right and carried the power of retention without the expression of the latter.”
An incident of the completed right is the power to enforce the lien given to secure it. When the vessel was loaded with a full and complete cargo, as stipulated in the charter party, the lien for the stipulated charter hire attached upon the tender of bills of lading for such cargo and the refusal of such tender by the charterers, and it was not in the power of the latter to postpone the attaching of the lien contracted for and its becoming enforceable by making it a condition of the acceptance of the tendered clean bills of lading for the cargo loaded that they be issued upon the payment of less than the stipulated charter hire. The averments of the libel showed that at the time it was filed the libelants had a lien on the cargo which was enforceable in a court of admiralty. Rulings as to the effect of
Waiving the question raised by the objection of the appellees to the allowance of the proposed amendment in this (the appellate) court, the matter we think properly may be disposed of on the ground that, if the new issues sought to be raised had been duly raised by the pleadings in the trial court, on the evidence adduced they could not. properly have been decided in favor of the appellants. What is called the flush deck is really the roof or top of a structure which incloses the space above the upper or main deck; the principal object of that structure being to protect from the weather cargo loaded on the deck next below the top of such structure. While it is customary to load some cargo on the so-called flush or shelter deck, we think the evidence was such as to require the conclusions that the flush or shelter deck was- not the space contemplated by the stipulation as to taking on “full complete deck load consistent, with the vessel’s seaworthiness,” and that the alleged lightness of the beams supporting such topmost -deck was not a breach of the stipulation as to the vessel being “tight, staunch, strong and in every way fitted for such a voyage.” Nothing in the charter party shows that the vessel was bound to receive and store on the so-called flush deck a full and complete deck load.
The evidence was such as to support the conclusion that the timber and lumber carried there and on the deck next thereunder constituted a full and complete deck load within the meaning of the charter party’s stipulation on the subject. Neither the stipulation as to the vessel being “tight, staunch, strong and in every way fitted for such a voyage” nor any other provision of the charter party dealt with
For reasons above indicated, the proposed amendment is disallowed, aud the decree appealed from is affirmed.