12 F. Cas. 440 | S.D.N.Y. | 1868
The principal question contested in this case is, whether the respondent is liable for dead freight, or damages in lieu of freight, on the barilla called for in the charter party. It is contended, on the part of the libel-lants, that the health regulations of the islands did not suspend, impair, or dissolve the contract; that the vessel was in no fault; that the charterer was in fault in not supplying the barilla; and that the prohibition of the authorities fell on the charterer and not on the vessel. On the part of the respondent it is contended, that it was, by the contract, a condition precedent to the charterer’s duty to furnish the barilla, that the vessel should be ready and able to take it on board; that the barilla was ready, and the charterer did every thing which was in his power to do without the concurrence of the vessel; that it was the vessel that was prevented from taking the cargo on board, and' not the charterer who was prevented from putting it on board; that the vessel was never in a condition to receive the barilla, and did not perform her part of the charter party, and, therefore, the condition precedent to the liability of the charterer for any omission to put the ba-rilla on board never arose; and that there was no fault on the part of the charterer.
The question involved is one depending entirely on the construction of the contract between the parties. By the contract, the vessel agrees to receive on board the barilla, and the respondent agrees to provide and furnish the barilla to the vessel, in the Canary Islands, the cargo to be received alongside within reach of the vessel’s tackles. The only exception or reservation made by the contract in respect to these absolute engagements, is contained in the following clause: “The dangers of the seas and navigation, of every nature and kind, always mutually excepted.” There is no exception in regard to the restraints of rules and princes, an exception often inserted in charter parties, and applying solely to the vessel, unless expressly stipulated to be mutual. Blight v. Page, 3 Bos. & P. 295, note; Touteng v. Hubbard, Id. 298; Sjoerds v. Luscombe. 16 East, 201, 206; Bruce v. Nicolopulo, 24 Law J. Exch. pt. 2, p. 321; Duff v. Lawrence, 3 Johns. Cas. 167. Therefore, in the present case, there was an absolute engagement on the part of the vessel to receive on board the barilla, even though the authorities of the Canary Islands should prohibit its being put on board. Such prohibition did not dissolve the contract, nor can it absolutely excuse a nonperformance of it-. Where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Blight v. Page, above cited; Hadley v. Clarke, 8 Term R. 259, 267; Spence v. Chodwick, 10 Q. B. 530; Medeiros v. Hill, 8 Bing. 231. The libel-lants might have inserted in the charter party a provision exempting them from being obliged to perform its covenants if restrained by rulers or princes. But there is no such provision. There was, however, a restraint by the authorities of the Canary Islands against shipping the barilla, and the question is, whether such restraint shall fall on the vessel or on the charterer. The charter party not having provided that the restraint should not, in any event, fall on the vessel, the only proper question for determination in this suit is, whether there was any such default on the part of the charterer as makes him responsible for the failure to load the barilla. The restraint was not one against the exportation of ba-rilla generally, as in Blight v. Page, above cited, where the charterer was held liable. In that case, the charter party contained an exception in regard to the restraints of rulers and princes, and the exportation of barley generally, which was to be the homeward cargo, was prohibited by the authorities of the place of exportation. So, also, in Sjoerds v. Luscombe, above cited, where the charterer was held liable, the charter party contained an exception in regard to the restraints of rulers and princes, which the court held operated as an excuse only for the shipowner, and the loading of the homeward cargo contracted for was prevented by an embargo on all shipping. In Barker v. Hodgson, 3 Maule & S. 267, where the charterer was held liable, a pestilence broke out at Gibraltar, where the homeward cargo was to be laden on board, and, for that reason, the lading of the cargo was prohibited by law, and the decision of the court was placed on the ground that thereby the charterer was prevented from furnishing the cargo. In the present case, there was no general prohibition of the exportation of barilla, no embargo on all shipping, no pestilence at the place of loading, and nothing which prevented the charterer from furnishing barilla to a proper vessel. It is agreed that the cargo of ba-rilla was at the island of Fuerteventura, ready to be laden, but the authorities refused to permit this particular vessel to receive it, because she had not properly quarantined at Vigo. In the absence of any clause exempting the vessel from liability because of the restraints of rulers and princes, I think the fault was hers in not being in a condition to receive the barilla, and that her owners and not the charterer must bear the loss. Ogden v. Graham, 31 Law J., Q. B., pt. 2, p. 29; Spence v. Chodwick, 10 Q. B. 528; Brooks v. Minturn, 1 Cal. 484. The case is unlike that of Morgan v. Ins. Co. of North America, 4 Dall. [4 U. S.] 455. There it was held that the vessel had been in no fault. She took goods at Philadelphia on freight for Surinam, when there was an open commerce between the two ports.
It is claimed by the libellants, that, even though the vessel was under an obligation to go to Vigo, the conduct of the charterer’s agents at the islands amounted to a waiver of the performance of that obligation. It is alleged that it was the duty of the agent of the charterer, when the vessel arrived at Palmas, to have refused to accept the cargo she carried, or to attempt to supply her with any return cargo, until she had gone to Vigo and quarantined, if the plea now set up in defence was to be made. But I cannot concur in this view. The vessel was bound by the contract to go to both Palmas and Ca-bras, and her return from the latter port to the former was the result of a mutual arrangement between the master and Hogg, made in good faith on both sides, aside from the charter party. The master was under no obligation to return to Palmas. He might properly have refused to do so, and have gone directly from Cabras to Vigo. The agreed facts show that the charterer's agent always insisted, up to the very last, that the vessel should go to Vigo, and never waived the performance, by the vessel, of her obligation to go there. Nor can the ac-eeptance of the lumber, or the loading of the wine, excuse the failure of the vessel to put herself in a condition to receive the ba-rilla.
It follows, therefore, that the libellants are not entitled to dead freight, or damages in lieu of freight, on the barilla. Nor are they entitled to damages for loss of time, or expenses incurred by the deviation to St. Thomas on the homeward voyage, as the deviation was not caused by any act or omission of the respondent.
I do not see how the respondent can refuse to pay the freight on the wine, after having accepted it. His agreement is to pay so much per one thousand feet freight on the lumber, on its delivery at the islands, and so much per ton freight on the barilla, and per pipe freight on the wine, on proper delivery. When the lumber was delivered, the freight on it was paid. This is a practical construction of the contract by the respondent. Freight is to be paid, at the agreed rate, on whatever cargo is delivered. Freight is due on the wine, although no barilla was brought. Indeed, the answer does not set up that freight was not earned on the wine. The effect of the answer, in this respect, is merely to claim damages to an extent sufficient to absorb any claim of the libellants. The respondent is entitled to set off or recoup against the freight due to the libellants on the wine, any damage set up in the answer, which he can prove to have arisen out of any breach of the charter party by the libellants, to the extent of the freight, but, for any claim beyond that, the respondent must resort to his own proper action. Zerega v. Poppe [Case No. 18,213]; Thatcher v. McCulloh [Id. 13,862]; Bradstreet v. Heran [Id. 1,792]. The freight to which the libellants are entitled, is the sum of $100, with interest from the time the wine was delivered, without reference to the provision of the charter party in regard to gold. A decree will be entered accordingly.