| S.D.N.Y. | Nov 16, 1900
The above libels have been filed in consequence of a dispute between the owner and the charterer of this British steamship Jacob Bright of 2,718 tons gross, as to their respective rights and obligations in regard to the despatch of the vessel on a new voyage a short time before the close of a time charter.
The charter was dated March 14, 1898, chartering the steamer to Mr. Munson—
“For the term of six calendar months from the day of delivery * * * to be employed as the charterers or their agents shall direct in lawful trades between safe port and/or ports in British North America, between May 1st and September 1st, ana/or United States of America, ana/or West Indies, and/or Central America, and/or Caribbean Sea, and/or Gulf 0f Mexico, and/or South America (not south of Itiver Platte), and/or Europe, * * * at the rate of 1925 per month, with an option of continuing the charter for a further period of three months, and/or three months more upon giving 15 days notice previous to expiration of first named term, with liberty of subletting- if required.”
The charterer used both options on due notice, and the vessel having been delivered under the charter on June 7, 1898, the full term
The provision of the charter as respects the hire was as follows:
“(3) That the charterers shall pay for the use and hire of the said vessel at the rate of £925 Br. Stlg. per calendar month commencing on and from the day of her delivery and at and after the same rates for any part of a month; hire to continue from the time specified for terminating the charter until her delivery to owner (unless lost) at a port in the United States north of Hatteras.”
On May 25, 1899, the vessel was in Few York, having on that day completed her discharge on a prior voyage, and the charterer thereupon ordered her to Philadelphia to load a cargo for Tampico, Mexico. The time ordinarily occupied for such a voyage and return was about 60 days, which would overrun the termination of the charter by 47 days. The master, considering that the charterer had no right to the use of the steamer beyond the termination of the charter period, offered to proceed to Philadelphia as ordered, but refused to load a cargo for Tampico; the charterer insisted upon obedience to orders, and the vessel thereupon proceeded to Philadelphia, and arrived there on May 26th, when the master repeated his refusal to load for Tampico. After considerable negotiation, occupying form days, the master agreed under protest to load for Cuba, proceeded thither, and returned with cargo after- many delays, and the ship was redelivered to the owner on July 26th, as above stated. The charterer in the meantime prócured another vessel to carry the cargo to Tampico, which he had designed for the Jacob Bright, but was obliged to pay for the hire of the substituted vessel the sum of $2,141.11 in excess of the charter rates of the Jacob Bright for the same period. In the cross libel, the charterer claims to recover this amount of the owner of the Jacob Bright, as well as a deduction of four days’ hire for time lost during the dispute in Philadelphia, and also for further alleged unjustifiable delays of the vessel in Cuba.
1. The charter is obviously purely a time charter. The charterer would, have no legal right to make use of the vessel a day beyond the expiration of the charter term, and he would be bound to pay for any such actual use the market rates after the lapse of the charter term, were it not for the following clause in paragraph 3: “Hire to continue from the time specified for terminating the charter until her delivery to owner.” The rights of the parties must depend I think upon the construction and effect to be given to that clause.
Although this form of time charter with the same additional clause has been in use to a considerable extent for at least 20 or 30 years (see Scrutton, Charter Parties), no direct adjudication as to the charterer’s right to despatch the vessel near the close of the term has been found, save the implication in Gray v. Christie, 5 Times L. R. 577. Other forms of charter party avoid the difficulty here encountered,
The uncertainties of navigation, however, are so great that in all time charters contemplating several voyages, it is almost certain that the voyages cannot be so arranged as to precisely fill up the charier period without running over the time limit. An additional uncertainty, which may upset the charterer’s best calculations, arises from the liability of the vessel to bp laid up more or less for repairs during the charter period, as actually happened in this case. The charterer on the other hand is bound to pay in full to the last day of the charter period whether he uses the vessel or not, provided she is in condition to sail. In vessels of considerable value, therefore, like the present, where the charter rate is some $150 per day, the charge for unused days, where a considerable number remain, would become very burdensome. If, for instance, the voyages contemplated occupied from 30 to 60 days each, and at the close of the last voyage only 20 days remained of the charter period, there would be a loss to the charterer oí $3,000 for the unemployed days in case he could not send the vessel out on another voyage; and with a larger number of days remaining, the loss would be proportionately greater. It is evident that commercial business by means of chartered vessels could not be carried on under such liabilities to certain loss; and considering that charters like this have been to a large extent long in use, there must of necessity have existed some ways of settlement by which such losses are avoided.
The charterer in the present libels contends that the clause “hire to continue,” etc., was designed to provide against this liability and has been so customarily interpreted and applied; that by the charter he has the undisputed right to the beneficial use of the vessel until the expiration of the charter period, and that the intention of this additional clause was to authorize the charterer, up to the expiration of that period, to despatch the vessel upon a voyage in order that he might have the full beneficial use of the vessel during the whole charter term, and pay for any excess of time occupied in finishing that voyage at the rate provided in this clause.
From the above view of the practical situation of the two parties, and the fact that neither construction of this clause is inconsistent with its language, I think that evidence of the practice, custom or usage as to the employment' of vessels under clauses like this is competent, and may be resorted to in order to ascertain the pre
The evidence of the experts examined, though lacking in precision as to the number of remaining days necessary to authorize an additional voyage, or the precise voyage which might be entered upon, is entirely uniform in stating that the charterer may despatch the vessel upon some of the voyages mentioned in the charter where any considerable period remains of the charter term, although the voyage cannot be completed within the term. These experts were all introduced by the charterer; none were called in behalf of the owner, not even the local agents of the vessel, who are presumably well acquainted with the ordinary practice under charters of this form.
Without commenting upon the details of the different witnesses as respects the custom and practice alleged, but giving full effect to the rule that every custom must be reasonable, I find that where there is an unexpired term of about 12 or 13 days which would involve the charterer in a loss of some ?2,000, if the vessel could not be employed by him during that time, that the practice of despatch-ing the vessel upon some of the voyages authorized by the charter is reasonable and is in accord with the established usage of this port and should be allowed. On the other hand, considering that the only justifiable object of any such extension of the time limits of the charter is to enable the charterer to secure the beneficial use of the vessel for the whole charter period, I find that the only additional voyage that can be required of the vessel without the owner’s consent:, is the shortest of the voyages that are commercially practicable under the charter, or of those in which the vessel has in fact been employed, and for which she was presumptively engaged; and that any custom to despatch the vessel on a longer voyage is unreasonable and invalid, because unnecessary for the objects of the clause in question as respects the charterer, and an unnecessary extension of the time limits of the charter to the owner’s prejudice.
In the present case, the steamer being a foreign vessel, could make no voyages between American ports. Rhe had previously made six voyages, two to Cuba and four to Mexico. A voyage to Cuba and return with cargo, would occupy from three to six weeks; to Mexico from eight to nine weeks. To require the vessel to proceed upon the longer of these trips, overrunning the charter period from six to seven weeks, was an unreasonable demand and unjustifiable and ought not to be sustained. The voyage to Cuba, which was finally made, was the shortest of the voyages previously made and the shortest of those contemplated by the charter. Upon the evidence it was, therefore, one which could be reasonably and justifiably required.
I sustain, therefore, the captain’s refusal to ioad for Tampico, and disallow the charterer’s claim for extra hire in the employment of another vessel for that port. The loss of four days at Philadelphia
The cross libel is therefore dismissed, and a decree may be entered for the libelant in the original libel for the balance of the charter hire only up to the day of delivery, with' costs.