181 F. 483 | 2d Cir. | 1910
January 22, 1908, the receivers of the Westinghouse Electric Manufacturing Company filed a libel against the Tweedie Trading Company to recover charges alleged to have been wrongfully exacted for lighterage and demurrage in connection with consignments of electrical machinery by the steamer Glen Mae in September and for lighterage ex steamer Regina Elena in November, DO7, at Rio de Janeiro. June 3, 1908, the Tweedie Trading Company filed a libel against the Westinghouse Company to recover dead freight on the deficiency of machinery agreed to be shipped. The district judge directed a decree in favor of the receivers of the Westinghouse Company, libelants, and dismissed the cross,-libel of the Tweedie Company.
We will take up the libel for consideration first.
The freight contract provided that it was made subject to the Twee-die Company’s bill of lading, article 12 of which is as follows:
“ * * * But unless this bill of lading by express written agreement is to bear the cost of lighterage it is expressly understood and agreed that the lighterage always both loading and discharging is for account and risk of the cargo, custom of the port to the contrary notwithstanding.”
There was also on the freight contract the following indorsement:
“These rates include delivery at the Ferro Carrille Central Railroad, Rio de Janeiro, providing there is water enough for craft to get alongside dock and also include all derrick costs in discharging.”
There was also the following written clause in the bills of lading:
“To be delivered by steamer or lighter at steamer’s option at the Ferro Carrille Central Railroad, Rio de Janeiro, provided there is enough water and length to get alongside dock and also include all derrick costs for discharging as per indorsement.”
The indorsement ón the freight contract made no mention of lighters, but required delivery at the dock provided there was water enough for “craft” to get alongside, which we think means for the steamer to get alongside. Presumably there would always be water enough for lighters. In other words, the lighterage was to be for account of the steamer only if she could get alongside, and did not do so.
It is argued that the Tweedie Trading Company by lightering at its own expense previous shipments ex steamers Meldroskin and Indiana construed the clause otherwise. But those consignments were small, and there is no proof that the steamers could not have gone alongside if they had wished to do so. While there was no special written clause on these bills of lading, they were subject between the parties to the indorsement on the freight contract. The district judge said:
“The ship’s obligation was to make delivery on the Ferro Carrille dock, and until such delivery was made her contract was not complete.”
If this be admitted, the question remains: At whose expense lighterage was to be, if lighterage were necessary? As the steamers could not go alongside, we think the libel of the receivers should have been dismissed.
We come now to the cross-libel. The claim is for demurrage of steamer Regina Elena and for dead freight on the difference between the tonnage shipped and the tonnage called for by the freight contract. The copy of the freight contract annexed to the libel was as follows:
Freight Contract.
New York
........ March 22nd, 1900.
No. 5377 Boston
ENGAGED freight room for account of Westinghouse Elec. & Mfg. Co. per Steamers ' to arrive, expected to sail from November, 1900 to April, 1907, for port of Rio de Janeiro M Tweedie Trading Company Agents for Approximately 1500/2000 tons Elec. Machy. & Elec. Apparatus. Pcs. or Pckgs. up to 3000#-22% cu ft or 45c. per 100# strs option “ “ “ 3000# “ 5000#-25c. “ “ 50c. “ “ “ “ “ 5000# “ 20000#-45c. “ “ 90c. ..... “ “ “20000# “ 27000#-55c. “ “1.10 ........ “ “ “ 41500# 77%c. “ “ 1.55 “ “ “ “ “ “ 49000# 87% “ “ 1.75 “ “ at rates Net Brokerage 2%% and 5 per cent, primage per 2240 lbs. or 40 cu. ft. and subject to the conditions The Tweedie Trading Co. B’s/L
Alfred H. Post & Co.,
Per N. L. Wills,
Freight Prepaid. Brokers.
Application was granted in this court to take additional proofs on the questions: (1) Whether there is a custom in this port whereby the. freight contract must be construed as calling for from 1,500 to 3,000 dead weight tons; (3) whether the Westinghouse Company furnished specifications of the cargo before the freight contract was signed; (3) whether the copy annexed to the libel is a correct copy of the freight contract.
The last question is naturally to be considered first. The original freight contract was executed on a printed form in duplicate, and bo.th originals have been lost. The copy of the contract annexed to the libel was admitted by the Tweedie Company to be correct in its answer and in its cross-libel and by its witnesses at the trial. Proofs have been offered in this court that the word “approximately” and the words “five per cent, primage per 3,340 lbs. or 40 cubic feet” were crossed out of the printed form. The facts that the word “approximately” is not appropriate when the number of tons is fixed at “from 1,500 to 3,000,” and that provision for primage was unnecessary because none had been contracted for, and that reference to tons of 3,340 pounds or 40 cubic feet was unnecessary because rates of freight had been previously provided per 100 pounds, and one cubic foot do pot prove that these words were not left in the printed contract. Without attaching great importance to their presence or absence, we hold that the copy annexed to the libel is correct because sufficient proof has not been furnished to overcome the admissions of the Tweedie Company in its pleadings and by its conduct. • .
We do not think that any custom has been established to the effect that a contract for shipment of a given number of undefined tons at a rate of freight per pound or at steamer’s option per cubic foot requires the delivery of dead weight tons. Such a question has rarely arisen. The witnesses examined differ, and we are left to construe the contract from its terms.
The practice is undisputed that contracts to carry dead weight tons generally give the carrier the option to collect freight by weight or measurement in order to cover large but light packages. It is also undisputed that when the word “ton” is used alone a dead weight ton
During the early negotiations the parties had been considering rates of freight for 800 to 1,000 tons covering about 2,000,000 pounds. Without discussing all the testimony pro and con as to whether specifications, and, if so, what specifications, were furnished by the Westingliouse Company before the contract was signed, we are of opinion that the parties used the word in the same sense in connection with this contract for a larger quantity.
The decrees are reversed in both cases, with instructions to the court below to enter a decree dismissing the libel and an interlocutory decree for the cross-libelants with the usual order of reference; cost? in both cases to the Tweedie Trading Company.