108 F. 882 | 4th Cir. | 1901
after stating the case as above, delivered the opinion of the court.
The appellant having agreed in the charter party “to provide and furnish the vessel a full and complete cargo of coal,” and this contract being unqualified, and being expressed in plain language, the testimony offered has been objected to on the ground that there is no uncertainty in the meaning of the language used, and that the terms of the written contract cannot be varied or changed by parol evidence. The grounds upon which testimony as to usage is admissible in a case of this kind is that such evidence is necessary to place the court in the situation in which the parties were when they contracted, and thus enable it to understand the meaning of their language. Whether such usage be called a “custom,” or by any other name, if it is one of the circumstances surrounding the parties to the transaction, and was presumably in their minds when the contract was -written, then, in contemplation of the law, such usage is written into the contract. But to have that effect there must be no room to doubt the existence of such a custom, and it must be reasonable, certain, consistent with the contract, uniformly acquiesced in, and not contrary to law.
The existence of such a custom as would control the charter party —that is to say, that would be tacitly incorporated in it on the ground that the parties must be presumed to have contracted with reference to it, and to have had it in mind when making the contract, and for that reason be required to conform to it — must be so ancient, uniform, notorious, and reasonable that all parties doing business of this kind at the port of Baltimore are conclusively presumed to have been acquainted with it, and impliedly annex it to
The only other point in the case is that made in'the sixth and seventh assignments of error, which rest upon the doctrine of the duty of the party to a contract to mitigate, by reasonable diligence, the loss necessarily respiting from the breach. Assuming that this is a case where such a duty was imposed, we are of opinion that the facts proved do not show any fault in the -libelant. The owners of the vessel were not in Baltimore, and before undertaking to make a new charter they were entitled to know the entire situation, and it appears that shortly after the arrival of the schooner, when the charterer refused to provide a cargo, the agents of the vessel did, without unreasonable delay, make all proper efforts to secure another cargo. There had been a sharp decline in freight rates for coal vessels on account of the strike^ and although it is proved that a few small vessels had secured cargoes prior to the 29th March, at somewhat better rates, yet the testimony shows that, about the time this new cargo was arranged for, other vessels of like capacity were chartered at the same or lower rates. Under the conditions then prevailing, a vessel of this tonnage could not probably upon* the instant secure a cargo suitable to her capacity. The broker’s clerk testified “that this was the best business we could get for the Manning,” and the record does not disclose that any better business was offered, or that the defaulting charterer made any effort to assist or procure a cargo upon any better terms, which it might well have done. The judgment of the court bejow is affirmed.
