260 F. 846 | S.D.N.Y. | 1917
This allegation is certainly bad as it stands. I do not mean to pass upon the question whether the British Orders in Council excused the respondent from the voyage; but I do mean to say that in pleading foreign ordinances having the force of law the pleader is bound to allege more than his conclusion of the effects of the ordinance. Lomb v. Pioneer, etc., 96 Ala. 430, 11 South. 154; Valz v. First National Bank, 96 Ky. 543, 29 S. W. 329, 49 Am. St. Rep. 306; Gibson v. Railroad, 225 Mo. 473, 125 S. W. 453. He is bound to set out its substance, so that the court may judge whether it has the effect which he ascribes. Without passing, therefore, upon the question as to whether shipments to Sweden and Holland were excused by the Orders in Council, or any other ordinances promulgated by any of the powers, the exception is sustained.
It is, of course, not an implied condition upon a charter party that it should be profitable to the owner, or of any contract of carriage that the ship should be filled. That is the owner’s lookout. It would be intolerable to impose such a condition upon the shipper. The further allegation is not relevant, that the charter party was made in pursuant of a regular course of business for many years past, and that the phosphate freights were fixed upon the assumption that the ship would fill. This is far from an allegation that the charterer agreed to excuse
The defense is bad in law. If it had alleged that the charter party was only for the carriage of phosphate to fulfill a given contract, and that the contract was terminated, it might have been good; but the charter parties contained no such provision. There is no excuse for saying that they should be limited to deliveries under existing contracts only, and indeed nothing of the sort is pleaded. Furthermore, if the defense only touches damages, it is not good. It would by no means follow that the libelant could not recover damages merely because it was not sued for failure to deliver under the existing contracts. Phosphate might still be more valuable at the place of destination than at the place of shipment, and the carriage therefore of value, even if the contracts had been repudiated. Second, there is no propriety, even in admiralty, in pleading evidence in mitigation of damages in the answer to the libel, as appears below. The exception is sustained.
This matter would be material on damages; but even though admiralty will dismiss a libel where the libelant proves only nominal damages, it has never been suggested that matter in mitigation of damages must be pleaded, nor is there any reason why it should be pleaded. The whole matter of damages is reserved for a reference usually, and to introduce matters of damages into the pleadings is merely to confuse the issues, as though it raised an issue which could properly arise upon the trial. The exception is sustained.
“Penalty for nonperformance of this agreement, proved damages not exceeding estimated amount of freight.”
As matter of law this has been held not to be good in limitation of damages. Wall v. Rederiaktiebolaget, [1915] K. B. 66; Aktieselskabet Korn-Og v. Rederiaktiebolaget Atlanten (D. C.) 232 Fed. 403; Mit-
The sixth defense is set forth in the fifty-third article of the answer. Like the last three, it goes only to mitigation, and it is therefore improper in the pleading. It is likewise improper because the letter in question was in no sense an accord and satisfaction between the parties, nor was it an estoppel so as to bind the respondent in any way. The exception is sustained.
The first, second, and third interrogatories are directed to the method of computation of the libelant’s damages. There can be no propriety in these inquiries: First, because they are directly contrary to the rule; and, second, because, since they only touch damages, they can in any case properly come up only after interlocutory decree. Even then they are unnecessary, as the libelant must put in its case .first before a commissioner.
The fourth and fifth interrogatories make inquiries as to the contracts for the sale of phosphate in Europe, and whether they were canceled without the payment of any money by the libelant. They can be material only in the event that libelant should attempt to charge the respondent for the damages for the loss of profits under those contracts. As the libelants have alleged nothing of the sort, they may not recover special damages, and the whole inquiry is irrelevant to any issue in the case, even under damages. The exceptions are sustained.
The only relevancy of the sixth, seventh, and eighth interrogatories by any possibility is to show that the charter parties were limited to a
The ninth interrogatory is too vague to be of any value. If the respondent shall allege any specific ordinances or regulations which are material to the controversy, possibly an interrogatory may lie directed to the respondent to require its admission that the ordinances alleged had in fact been promulgated. The pleadings are in no condition at the present time to justify such interrogatories. The exception is sustained.
The J:enth interrogatory may well become material at some future stage of the proceeding. If the respondent tenders issue upon ordinances or regulations exposing a ship to search or capture which carries goods to Sweden or Holland, inquiry as to the shipments proposed and permits obtained may be relevant, because the interrogatories would then be pertinent to the respondent’s case as pleaded. The exception, therefore, is sustained.
There remain the seventeenth and eighteenth exceptions to the traverses of the answer. I think the denial of the allegation of the third article of the first cause of action and the first article of the other causes of action is bad. .These articles allege that the charter party was executed and that a copy is annexed to the libel and made a part of the allegation. ■ The answer denies in general that the terms of the charter party are correctly set forth, or that the charter party annexed to the libel is a full and correct copy. The allegation is that the charters were made by the respondent’s agents, and the respondent must specifically deny those provisions of the charter which are incorrectly pleaded, unless they are willing to plead ignorance. O’Keefe v. Staples Coal Co. (D. C.) 201 Fed. 135.
The eighteenth exception is good in part and bad in part. The libel-ant is entitled to a categorical admission or denial of the allegation that the respondent has failed, refused, or neglected to name or furnish a steamship to the libelant, and it is not a categorical answer to say that it has not carried the precise cargo mentioned. As to the allegation of demand, that is sufficient, and payment must be pleaded affirmatively, if the respondent is to rely on it, no matter what the pleading of the libelant may be. The exception is sustained as indicated, but no further.
The decreé, therefore, will be that all the exceptions are sustained in toto, with the exception of the eighteenth, which is sustained to the extent noticed. The respondent will have leave to plead over within 10 days after the order is entered.,