114 F. 260 | 3rd Cir. | 1902
These cases were argued together, and may be disposed of in a single opinion. The question presented is whether the-court below erred either in allowing the claims for trimming charges and for dead freight, respectively, or in disallowing those relating to dispatch money.
Respecting the two items first mentioned, we concur in the views expressed and in the conclusions reached by the learned judge of the district court. The respondents were charterers under a charter party which provided that the chartered vessel should proceed to Bilboa, Spain, “and there load when, where, and as directed, in the usual and customary manner, from the charterers’ shippers, a full and complete cargo of ore, same to be delivered to her where she can always lie
The respondents contend that their obligation to furnish a full and complete cargo was fulfilled because they had a full cargo ready for shipment, and this position would be impregnable if certain other provisions of the charter party and the particular facts of the case were not to be regarded. But the contract was, in legal effect, that the vessel should proceed to Bilboa, or as near as she could safely get, and when loaded get away from, in order to proceed to the port of Philadelphia (Shields v. Wilkins, 5 Exch. 304); and the fact is that she was directed to load at a berth where a full cargo, if taken aboard, would have made it impossible for her, at any stage of water or at any time, to pass out over the harbor bar. The suggestion now made that the master should have detained the vessel outside the bar for reception of the balance of the ore is without force. He was not asked to do so, and it is quite evident that the shippers did not contemplate any delivery of cargo elsewhere than at the “tip.” The district court was therefore right in deciding that nothing had been shown to excuse the nonperformance by the charterers of their express undertaking to furnish a full cargo, and in accordingly sustaining the libel-ant’s demand for compensation by way of dead freight upon the difference between what would have been a complete cargo and the partial one which was actually put on board.
We are unable to adopt the construction which was put by the court below on that clause of the charter party which concerns lay days. In our opinion, the phrase, “lay days not to commence to count until twelve o’clock noon after the steamer is entered at custom house and in every respect ready to load,” etc., though negative in form, is positive in effect. It means that they shall commence to count at that time, but not before. It does not mean that they shall not be counted before that time, but may not commence even then. When the steamer had been entered and was ready to load, and the stipulated notice had been given, all had been done which she was required to do. It then became the duty of the shippers to promptly load her, subject only to the provision by which they were allowed till 12 o’clock noon thereafter for the commencement of lay days. The ship’s readiness to receive the cargo “from the charterers’ shippers” was not dependent upon their readiness to assign her a berth. So long as this was not done, she was detained in waiting, not by any lack of readiness on her part, but by the unreadiness of the shippers, and therefore they, and not the master, were responsible for the consequent delay in loading her. It was not for him to obtain a berth, for the charter party expressly required him to load “when, where, and as directed.” Upon reaching the harbor the arrival of the ship was complete, and, while it was the duty of the master to then make the vessel ready to receive cargo, the designation of a place for its reception was, as we read the contract, as clearly incumbent upon the shippers as was
Solely upon the ground that its disallowance of the claims respecting dispatch money was erroneous, the decrees of the district court are reversed, and the causes designated at the head of this opinion will be remanded to that court for further proceedings to be there taken in pursuance of this determination.