84 F. 685 | S.D.N.Y. | 1898
The above libel was filed to recover from the respondents two items, one of $181.19, a rebate from a stevedore’s bill, and the other an item of $240 for wharfage, both of which were charged by the respondents as charterers of the steamship Monk-seaton, against the libelants, as owners of the steamer, in the settlement of accounts under the charter made with the master at Hampton Roads, prior to the sailing of the vessel in June, 1896. These items appear distinctly upon a statement rendered by the respondents to the libelants subsequently to the settlement. The libel avers that neither item was a payment made, or an expense incurred by the charterers, and that they, therefore, had no right to charge either against the vessel.
These charges against the vessel were based upon the following provisions in the charter:
“Charterers to liave tlie option of appointing the tally clerks, also the stevedore to load and stow & discharge the cargo — under the master’s supervision-steamer paying expense of same at usual rates for first class work, and charterers to be in no way liable for improper stowage. * * *
“Steamer to haul to loading berth or berths as ordered by charterers, but if hauled more than once nnv necessary towage to be paid by charterers. Wharfage under this charter $20 per day, to be paid by the steamer.”
The charter was executed at New York. It’ was a charter of affreightment only. It provided for loading at a usual safe wharf or dock in the port of Newport News a*rd Norfolk in any rotation, as ordered by charterers, a full’ and compílete cargo of lawful merchandise; and that the ship should proceed to Rotterdam and there “deliver the cargo agreeably to bills of lading on being paid freight in full of all port charges, pilotages, freight brokerages, and other charges customarily paid bj7 steamers.”
Under a charter of affreightment, the ship must bear all the ordinary expenses of the voyage, and the expense of loading, except as otherwise provided in the charter. In this case it was provided that extra expense for night work should be borne by the charterers. The master or the owners’ agents would also have the right to employ or designate their own stevedore for loading. Here the option to appoint tally clerks and the stevedore was given to the charterers, with the stipulation, however, that the loading should be under the master’s supervision, the steamer paying expense of same at usual rates for
Aside from this consideration, however, the qualification annexed to the option given to the charterers, viz. — “steamer paying expense of same [i. e. loading] at usual rates for first class work” — forbids the charterers to retain this rebate for their own benefit, because this qualification shows clearly that the ship was to pay only the “expense” of loading, that is, the actual expense; and second, that this expense could not exceed the usual rates for first class work. Here the rebate paid to the charterers by the stevedore shows that the Ml sum charged to the ship was not the real expense of loading, hut was in excess of the actual expense; and the further fact, which was conceded upon the argument, that the rebate made by the stevedore to the charterers was in pursuance of the usual practice between him and the charterers, shows also that the rate charged to the ship was not their usual rate, but only a nominal rate, from which a rebate was customarily made. The defendants should, therefore, respond for this item.
2. Wharfage. The claim as to wharfage stands upon a different basis. The stipulation of the charter in this regard is absolute; viz. “wharfage under this charter $20 per day to be paid by the steamer.* There is nothing in the context, and there are no other stipulations in reference to the same matter, which serve to modify or restrict the stipulation to pay $20 wharfage. The immediate context provides that the charterers shall pay for any necessary towage of the steamer, if hauled more than once in loading; and the agreement that the steamer shall pay $20 per day for wharfage, seems to me a stipulation with the charterers fixing that sum, which binds the ship to pay that amount, and by implication hinds tire charterers to. pay any sum in excess of $20 per day that might be incurred. The charterers in taking this burden, took also the benefit of a less expense. Upon the facts stated in the argument, it appears that the reason why no separate expense was incurred for wharfage in this case was, that the wharf was owned by a railroad company arrd used exclusively in its business; and that as an inducement to deal with the company, and to take merchandise from the railroad company at its wharf, no wharfage was charged. The charterers had the right to take such lawful merchandise as they pleased, and at any usual wharf within the ports named. As it was the charterers, therefore, who exercised this option, both as to the merchandise to he carried, and the place at which it should he loaded, any benefit as respects wharfage offered by the railroad company for taking its goods was practically an inducement offered to the charterers of which they are entitled to the benefit.
The case, having been heard upon exceptions to the libel with a view to avoid unnecessary delay and expense in the taking of testimony, has been determined not alone upon the strict letter of the pleadings and exceptions, but upon the facts as well, which were in substance stated and agreed upon at the argument.
