24 F. 379 | U.S. Circuit Court for the District of Eastern Louisiana | 1885
The libelants are ship-brokers in New Orleans’, who for some years have corresponded with a firm of ship-brokers in Bridgetown, Barbadoes, by the name of Da Costa & Co. On the fifth of November, 1883, the Austrian bark Alberto was in Barbadoes, and her master, being desirous of a cargo direct for Trieste, negotiated with said firm of Da Costa & Co., who thereupon, on said fifth day of November, sent the following cablegram to libelant, to-wit: “Can you use one vessel of 500 to 550 tons — Austrian bark Alberto, Trieste, direct ?” This cablegram was received in New Orleans at 3: 40 i>. m. of the same day. At what time it came to the libelants does not appear, but on the same day the libelants, answering, sent the following cablegram: “7/3d., 7/lGd. and 5% cotton. Must be of the highest class.” Meaning thereby, 7s. 3d. for oil, 7s. 16d. and 5% primage for cotton. At what time this offer reached Da Costa & Co. does not appear, but they sent in reply this cable: “Offer accepted; the vessel leaves to-morrow to load cotton-seed oil, for Europe, at 7/3d.”
This dispatch was received in New Orleans at 2:19 s, m. of the sixth November. Exactly what time- the libelants received it, Hoes not appear; they made no answer by cablegram or otherwise. In the meantime Da Costa & Co., on the part of libelants, entered into a charter-party with the bark Alberto, under which the libelants were to furnish said vessel a full and complete cargo of cotton-seed oil for
Taking the libelants’ version as the true one, the libelants then notified the master of the Alberto that Da Costa & Co. had exceeded their instructions; that their cable to Da Costa & Co. quoted them freight on oil and cotton, and their intention was, and the cable so expressed it, that they, libelants, were to be at liberty to load the ship with oil or cotton, or both, at their option, and that, consequently, they could not recognize the charter signed by Da Costa as binding. They also told the master that they were perfectly prepared to carry out the offer they had made, and load a ship with a cargo of oil and cotton to Trieste; but they would not guaranty, and they could not guaranty, a full cargo of oil for the ship. The master said the vessel was unsuited for loading cotton, and he would not'take cotton; that he wanted a full cargo of oil. The libelants told the master that if he wished they would try and get him a full cargo of oil, if he would allow them to go into the market and offer the ship. After some discussion, the libelants’ chartering clerk, on the captain’s say so, offered the ship for a full cargo of oil; then the libelants entered the ship in the custom-house, paid the tonnage dues, and made other disbursements for the ship, as sued for in the libel.
The master of the Alberto, however, did not understand the libel-ants’ position with regard to the charter-party, for he proceeded to unload his vessel of ballast, and on the third day of December, 1883, he served on the libelants the following letter and notice:
“Messrs. Forstall, Clayton & Co.— GENTLEMEN: Please take notice that my vessel, the Austrian bark Alberto, chartered, by you as per charter-party dated Bridgetown, the sixth of November, 1883, is ready to receive cargo at post 35, Third district, and that her lay days will commence to count to-morrow morning, the fourth instant.
“Yours, truly,
“ANDREA Graguez, Captain of the Aust. bark Alberto.”
This notice seems to have cleared up the cloudy contracting atmosphere, for from this time on there seems to have been no more misunderstandings between the parties. The libelants discovered that the master of the Alberto insisted upon the charter-party as valid and binding; the captain discovered that the libelants repudiated the charter, and did not intend, to be bound by it.
Immediately the libelants brought their libel, seizing the ship for advances made. The owners of the Alberto responded with a cross-
1.-The exception to the jurisdiction is on two grounds: tnat tne cause of action is not tire same, and that the alleged charter-party was only a preliminary contract (if a contract at all) of which the admiralty has no jurisdiction. A charter-party is a maritime contract, and within the admiralty jurisdiction. The cross-libelant alleges a charter-party, and claims damages for failure to comply with its stipulations. If there was no charter-party there was no contract, and cross-libelant “has no case. The position of libelants is that there were preliminary negotiations looking to a contract, but no contract, because Da Costa & Co. had exceeded their instructions. ' If the charter-party as made bound the libelants, it was no preliminary contract. But, as I understand the question of jurisdiction, it is well settled, since Insurance Co. v. Dunham, 11 Wall. 1, that all contracts having reference to maritime service, maritime transactions, or maritime casualties, are maritime contracts, and within the admiralty jurisdiction of the courts of the United States. And see Maury v. Culliford, 10 Fed. Rep. 388. Whether the jurisdiction is in rem or in personam depends upon whether the contract imports a lien on the ship; and from this fact there has been some little confusion among practitioners in the admiralty courts on the question of jurisdiction. Most of the authorities cited in support of the exception in this case were cases where jurisdiction in rem was in dispute.
2. On the merits of the case the finding should be for the cross-libelant. The meaning of the three dispatches that passed between' Da Costa & Co. and the libelants is to be found, if possible, from the dispatches themselves. No unexpressed intentions nor understand-: ings of the parties sending these dispatches should be allowed to defeat the plain meaning .of the dispatches themselves. Locke v. S. C. & P. R. Co. 46 Iowa, 109; Merriam v. Pine City Lumber Co. 23 Minn. 314; Civil Code La. arts. 1946 et seq. The second dispatch, being the reply sent by libelants to Da Costa & Co., is clear and unambiguous in offering to freight the Alberto with oil or cotton, and justified the immediate acceptance of the offer for a cargo of oil. I cannot agree with libelants that they retained an option to furnish a cargo of either oil or cotton, or both. On the contrary, 1 am inclined to the opinion that the option was on the other side, and that on the acceptance of the Alberto’s master the obligation of the libelants to furnish a cargo of oil was fixed and certain. But it is not necessary to go so far in this case. Let it be conceded that the offer was as libel-
But the fact is, as appears from the evidence, a cablegram could be sent and an answer received between New Orleans and Barbadoes inside of 24 hours. From the fact that the acceptance was in answer to a dispatch of theirs sent on the evening of the 5th, the libel-' ants should have known (as was the fact) that the acceptance was sent on the 6th, the day they received it, and that there was ample time to answer and have their answer received before the Alberto sailed from Barbadoes. This view of the case is well supported by authority:
“Equitable estoppel is tlie effect of the voluntary conduct of a party, whereby he is absolutely precluded, both at law and in equity, from asserting rights which might have otherwise existed, either of property, of contract, or' of remedy, as against another person who lias in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who, on his part, acquires somo corresponding right, either of property, of contract, or of remedy.” Pom. Eq. Jur. § 804 and note.
See, also, Id. § 805, where silence is recognized as conduct to work an estoppel, as well as language and acts. See, further, 2 Pars. Cont. 499; Story, Ag. § 74; title 4, c. 2, § 2, Civil Code La.; Commercial Bank v. New Orleans, 17 La. Ann. 190; Kerr, Fraud & Mis. 409; Bigelow, Estop. 502, in relation to Hope v. Lawrence, 50 Barb. 258; Gregg v.Wells, 10 Adol. & E. 90; Cornish v. Abington, 4 Hurl. & N. 549; Benj. Sales, 39; Pollock, Cont. 420; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140.