44 F. 686 | E.D. Pa. | 1890
The libel is for freight under a charter, the material provisions of which are as follows:—
“The ship * * * shall proceed to a wharf at Hamburg and there load in the customary manner from freighters’ agents, a complete cargo of sugar, say 2,500 tons weight, * * * proceed forthwith to Philadelphia, and deliver the same alongside store. * * * The freight to be paid on unloading and right delivery of cargo, at the rate of nine shillings sterling per twenty cwt. on intake weight. * * * The act of God, the perils of the sea * * * excepted. The freight to be paid in cash at port of discharge at current rates of exchange * * * on the right delivery as aforesaid. The captain to sign bills of lading as soon as cargo is shipped, as presented, at any rate of freight required by charterers; any difference between bills of lading and chartered rate to be settled in cash before sailing, if in vessel’s favor.”
The vessel met with disaster from excepted peril, and part of the cargo being seriously damaged thereby, it was sold on the voyage for charterer’s benefit, and the balance delivered at Philadelphia. The ship claims freight on the entire cargo taken in, while the charterer declines to pay on more than was delivered.
The question raised presents serious difficulty. The general rules applicable to the subject are well defined. In the absence of contrary stipulation, freight is earned only on cargo delivered. Where, however,-the vessel contracts fora “lumped sum,” she is, ordinarily, entitled to the full amount, though a part of the cargo bo lost, without her fault. Where freight is payable according to measurement or Aveight, and there is difference in this respect between the ports of lading and delivery, the latter governs. Where parties, to avoid this result, stipulate for payment according to “intake” measurement or weight, the stipulation, ordinarily, operates to this extent, only, leaving the obligation to deliver unaffected. Where the charterer voluntarily accepts cargo on the voyage, the right to freight is not disturbed. The ¡case before me does not fall distinctly within either class referred to. . The contract'is peculiar in certain features, arid the question turns upon its construction. A printed form Avas employed, and but for the erasure of the word “delivered” and interlineation of the words “intake weight,”in the second sentence above quoted, no question AA-ould arise. The payment of freight would be limited, in plain terms, to the cargo delivered: It Avould read; “the freight to be paid on unloading' and right delivery of the cargo,- at the rate of nine shillings sterling per tori .‘of 20 .CAvt,,. delivered;” and if no other change had been made than to add the words “intake weighty” there would still be no
Reported, by Mark Wilks Collet, Esq., of the Philadelphia bar.