41 F. 806 | E.D. Va. | 1890
(after stating the facts as above.) The foregoing statement embraces the controlling facts of the case under consideration, drawn from a great mass of evidence on file. The question of the case is whether the libelants, stricti juris, had on the 24th December, 1888, complied with the requirements of the charter-party, as to readiness to receive cargo, and whether the respondents had a technical right to cancel that instrument. I say stricti juris, because, although courts of admiralty, as courts of
That the margin of profit to the charterers was very small under the first charter-party is shown by some of the facts exhibited in the evidence. The ship was chartered for the lump sum of £4,500, or about $22,000. It was chartered primarily for cotton, in the midst of the cotton exporting season, when that article pays a higher freight to the charterer than any other article of export. The charter-party provides for a full and complete cargo of cotton or other merchandise, at the discretion of the charterers; so that, if a full and complete carge of cotton could be put on the steamer, it was to be presumed that the cargo would in fact be, as nearly as practicable, all cotton. The capacity of this ship for cargo, as shown by the plan of her furnished to the charterers, including the main between-decks cross-bunkers, was 204,200 cubic feet. If every foot of these cargo spaces were of such form and dimensions as to admit of being filled with cotton, the charterers might have put on board 9,281 bales, allowing 22 cubic feet as the dimensions of the compressed bale. From the spaces thus computed must, however, be deducted the displacement necessary to making room for 100 tons of ballast, equivalent in dimensions to 181 bales of cotton. This gives 9,100 bales as the utmost number stowable in all the spaces of this ship
■ And first as to the clause defining the space for cargo which should be at the charterers? disposal: On this head the only question is whether the charterers. were entitled to the main between-decks cross-bunkers marked as for cargo, with capacity of 4,268 cubic feet, upon the plan of the ship. .This plan -or paper is not part of the charter-party', and cannot be taken,to.affect or modify its provisions. It is merely a reprer sentation of the ship and its several parts. Its only value is to enable us to understand more clearly than we could do without it the provision of-the-charter-party, defining the spaces to be used by charterers. This ipstruinfnt, gave the. charterers a.right^o “the entire carrying capacity
As to the provision relating to ballast: The charter-party gave the charterers an option to ship grain or heavy cargo, at their discretion, and provided that if heavy cargo was not shipped, and ballast should be required, the ballast should be provided by the steamer. There is no provision of the contract which requires the charterers to notify the master, in advance of loading, of the particular kinds and quantities of cargo they would put on board. This matter is governed by the custom of the port; and according to this custom, and independently of custom, the option of the charterers as to how the cargo should be made up continues during the whole period of loading, which, if this ship had been loaded, might have lasted 17 days, exclusive of Sundays. The fact that this continuing option existed made it incumbent upon the master to have ballast on hoard at the time he gave notice of readiness to receive cargo, or readily at hand to be taken on board, if the charterer yrould so require, before loading was completed. In point of fact, the Cambodia brought no ballast from New York; and her master admits, in evidence, that he could not procure it in Newport News, or anywhere short of Baltimore. The ship, therefore, if she had been loaded by the charterers without dead-weight cargo, as they had a right to do, would not have been in condition to comply with her, stipulation in the charter-party to proceed direct to Liverpool on being loaded. Capt. Wildgoose sought to excuse his neglect in providing ballast by contending that the telegram of 6th December, received from Myers & Co. while he was in New York, asking whether he required dead-weight cargo to load cotton,
The state of things is similar in regard to the provisions of the charter-party that, “if any grain be shipped, it is to be loaded under inspection of underwriter’s surveyor,” and that,-when notice is given of the steamer’s readiness for cargo, “all of her holds shall have been cleared, and passed for grain.” The proofs show that when notice was given, on the 24th December, there was more or less water in hold No. 3, — the most capacious part of- the ship, — and that within the same week, when grain was to be put aboard under the second chartering, the underwriter’s surveyor required ceiling to be done, and boards and timbers put in, which work required about three days for accomplishment. The certificate of the two ex-mariners, Clayton and Adams, given some time on the 24th December,’that “the ship was fit for the stowage of any kind of cargo,” even if it had been in time, and even if the ex-mariners had been officers competent and authorized to “pass the ship for grain, ” was in point of fact untrue, and therefore worthless. It is not usual or safe to ship grain in a hold wet, from a blind leakage, without ceiling, and without protection by proper timbers. True, if, in the period of 17 lay-days during which the loading of the ship was proceeding, the charterers had found it to their interest to ship grain, then, in such event, these preparations might have been made; but the charter-party required, expressly, that the ship should be in condition to receive grain at the time of the notice. Certainly, this provision of the contract was not fulfilled by the ship.
! , I must-rule in a like manner in respect to coaling. The ship had not been coaled for the voyage on the 24t-h December. If loaded before coaling-,-instead of proceeding direct for Liverpool as required by an express stipulation, she would have had to proceed to Lambert’s Point or New
“ A ship, to be ready to load, must be completely ready in all her holds, — must he discharged in all her holds, — so as to afford the merchant eompiete control of every portion of the ship available for cargo. The merchant can then stow his cargo as he thinks most advantageous. In no other circumstances can a ship, by which I understand must be meant an entire ship, be placed at the disposal of a merchant. If any other construction is placed on the words * ready to load,’ it is obvious that great inconvenience would arise. It might be contended that a ship was ready to load when one hold only was empty, and a merchant might not have the rest of the ship placed at his disposal for an indefinite period. I doubt not but that the defendants were anxious, and schemed to be able, to cancel this charter-party; but still I am bound to give effect to what I believe to be its true meaning. A custom was set up by the plaintiffs to load and unload simultaneously, but it was not proved, — in fact, was disproved. ” Id.
Coal was obtainable by the Cambodia only at Lambert’s Point, three miles, or Newport News, thirteen miles, from Norfolk, where she was to complete her cargo. Non constat but that she might have got aground on her way to Lambert’s Point, as she did after loading under her second chartering, or have grounded at the pier in shifting her hatches. Delay from this cause was not only possible, but both probable and not unusual; and the master had no right to impose the risk of such delay upon the charterers, after having consumed seven or eight days more time in reaching Hampton Roads from Gibraltar than had been expected: most of the delay having occurred at her wharf in New York, from rainy weather. Whether unavoidable or not, the master had not succeeded in getting to Hampton Roads from Gibraltar with that alacrity described as the “life” of commerce by Mr.. Justice Swayne, in Lowber v. Bangs, 2 Wall. 728, where he said:
“Promptitude in the fulfilment of engagements is the life of commercial success. The state of the market at homeand abroad, the solvency of houses, the rates of exchange and of freight, and various other circumstances which go to control the issues of profit or loss, render it more important in the enterprises of the trader than in any other business. The result of a voyage may depend upon tlie day the vessel arrives at lier port of destination, and the time of her arrival may ho controlled by the day of her departure from the port whence she sailed. We.cannot forget these considerations in our search for the meaning of this contract.”
If this was a struggle between the master and the charterers as to which should bear the loss of the delay incident to Christmas week, surely the equities were with the charterers; and these were not required, by considerations of mercantile good faith, to subject themselves to the
As to the times at which the notices of readiness to load were.given by the master, it is hardly necessary for me to say anything. Clearly, the notice of the 22d December, given after 12 o’clock, was invalid. I am inclined to think, however, that the telegraphic notice given on the morning of the 24th, received before 12 m., was in time, and would have been valid if the vessel had in fact been ready for cargo. Clearly, the letter written Sunday, the 23d, and not Received until after 12 m. Monday, was not in time. These questions of time of notice, however, are, in the case at bar, altogether immaterial. The ship was never ready to receive cargo. She had not the requisite 100 tons of ballast either on board or at hand. Even if she had the option to use coal as ballast, she had not that quantity of coal placed aft in the No. 3 deck. Nor was she on the 24th coaled for the voyage to Liverpool, and could not have proceeded thence direct after receiving her cargo. Moreover, she had coal in the main between-decks pross-bunkers, which was, therefore, not cleared for cargo, etc., and to which, according to the terms and spirit of the charter-party, the charterers had a right for cotton. On the whole case, I will sign a decree dismissing the libel, with costs.