55 F. 677 | 6th Cir. | 1893
This is a libel in personam against J. C. Gilchrist, B. E. Schuck, William H. Gileker, Louis Woodruff, Myra Lavoo, and L. H. Weeks, owners of the schooner B. F. Bruce, for breach of the following contract:
“Vessel Charter.
Agreement betwen .T. C. Gilchrist, of Vermillion, Ohio, as managing owner of the vessel called the B. F. Bruce, and ,1. H. Outhwaite & Co'., of Cleveland, Ohio, as agents for Lumberman’s Mining Company, made at Cleveland, Ohio, this 4th day of February, 1886. Witnesseth, that the said J. C. Gilchrist, for the considerations hereinafter named, hereby agrees that said vessel shall carry eight (8) cargoes of iron ore for the said J. H. Outhwaite & Co., agents, during the season of 1886, from Escanaba, Michigan, to Lake Erie ports, (not east of Erie,) at a rate of freight of one dollar ($1.00) per ton of 2,240 pounds. It is understood that tlio above number of trips shall bo distributed through the season of navigation of 1886 as equally as possible in regard to time. It is also understood that the said vessel shall be constantly towed by the propeller N. K. Fairbanks, during the life of this contract. There shall he allowed an average of four days’ time for loading said vessel, and for furnishing a. dock at which to discharge; the time to he reckoned from the hour when paid vessel reported and was ready to load, until loaded, and from the time when reported at port of destination, and was ready to unload, until a dock ■>vas furnished. The time of such reporting in both cases not to date from an hour earlier than 8 o’clock A. M. or later than 5 o’clock P. M.; Sundays, public holidays, and time lost in consequence of heavy seas, or any other causes beyond the control of Lumberman’s Mining Company, excepted. When each cargo contracted by this vessel is delivered, if it shall be found that the time of detention exceeds four days for each trip, as above stipulated for, the said vessel shall be allowed a compensation for further detention, except for causes above stated, at the rate of five cents per gross ton of one average cargo for each day (of twenty-four hours) of such excess. The time of reporting, ready to load, and when loaded, with causes of detention, if any, shall be noted on the bill of lading in every instance. A special order for each cargo shall be obtained from the agents of said Lumberman’s Mining Company, at Cleveland. Said J. H. Outhwaite & Co., agents, in consideration of the above, hereby agree to employ said vessel, and to pay the freight as above mentioned.
, “J. C. Gilchrist, Managing Owner.
“Lumberman’s Mining Co.
"By J. I-L Outhwaite & Co., Agents.”
The libel averred that hut six cargoes of iron ore were carried during the season of navigation of 1886 by the respondents, and that the libelant was obliged to and did charter other vessels to bring the two other cargoes of iron ore from Escanaba to Cleveland at the rate of $1.72 per ton of 2,240 pounds. The respondents admitted the charter, and that the Bruce did not carry eight cargoes, but averred in defense that it was known to both the parties to the charter that the steamer Fairbanks was chartered during that season to make trips from Lake Erie to Lake Superior, thence to Chicago, and thence to Escanaba, and from there to Lake Erie ports; and the number of trips the Bruce could make was known and understood to depend on the number of trips the propeller Fairbanks made. That the respondents well and truly performed the contract, be
There is .no evidence whatever to support the averment of the answer that the libelant company had delayed respondents’ vessel in loading beyond the time allowed for this purpose in the contract. We think equally untenable (he contention of counsel for the appellant that, under the contract, and the circumstances surrounding it, the appellant should not be held responsible for (he delays of the steamer Fairbanks on the ground that she had been named in the charter with the consent of the Mining Company, as the vessel to tow ihe Bruce thereunder.
The evidence disclosed that the parties had made a contract on the 4th of February, 1886, as follows:
“Outhwaite & Oo., Agents of the Lumberman's Mining Oo.: We will transport for you 30,000 tons of iron ore from the port of Escariaba, Michigan, to Lake Erie ports, not east of Erie, in equal monthly quantity, during the season of navigation. 1886, at the rate of one dollar per gross ton, steam tonnage.
[Signed]
“Moore, Bartow & Gilchrist”
This was accepted by the mining company per Outhwaite & Oo., February 9, 1886, and thereafter the parties met for the purpose of Darning the vessels under which this contract was to be performed, and signed the charter herein. This notation was made on the contract by libelant: “We accept charter of schooner B. F. Bruce to apply on this contract.” In making the charter the Fairbanks was named by Gilchrist as the s(eam vessel to tow the Bruce, and the name of that propeller was accordingly inserted therein.
Tailing the original contract and the charter together, it is perfectly clear that the respondents are responsible for the Fairbanks’ delays, because they stipulated to carry the iron ore by steam tonnage. It is wholly immaterial whether the Fairbanks was under the control of the respondents or not. The contract was that the Bruce should make eight; trips in tow of the Fairbanks. It was, therefore, the contract of the respondents that the Fairbanks should wake eight trips. There is no reason why one may not contract
Coming now to the third defense, based on G-ilchrist’s tender of extra tonnage, we are of opinion that libelant was not obliged to accept the offer when made. The trips made by the Bruce were as follows: She reported at Escanaba on the 6th of May, and she .delivered her first cargo so as to be paid for it on the 14th of May. She reported again at Escanaba on the 7th of June, and finished loading on the 8th. The time when she arrived at Cleveland does not appear. She reported ready to load again at Escanaba on the 13th of July, and finished loading on the same day,' and collected her freight at Cleveland on the 21st of July. She reported again at Escanaba on the 18th of August,'finished loading on the 19th, and collected her freight the 24th of August at Cleveland. She was ready to load again at Escanaba on the 28th of September, was loaded on the 29th, and it does not appear when she reached Cleveland. She was ready to load at Escanaba on the 31st of October, finished loading on the 1st of November, and collected her freight on the 10th of November. The 30,000 ton contract provided that the ore should be delivered in equal monthly installments. The charters subsequently made provided for the distribution of eight cargoes as equally as possible through the season of navigation. It is quite probable that the parties hoped that the season of navigation would begin on the 1st of April, and that the eight cargoes might be distributed through eight months. As a matter of fact, the season of navigation did not begin until the 1st of May, so that it was seven months instead of eight. In this result we think that the construction of the contract should be that the eight cargoes were to be distributed over the actual season of navigation, equally; and that it was a compliance with the contract for the respondents to furnish their first vessel in May. If we are right in this, then, dividing the time between the 1st of May and the 30th of November, 214 days, by 8, we find that the trips, if distributed with exact equality, would be 26f days each. The third trip was completed on the 21st of July, 82 days after the opening of the season of navigation, or but 2 days after the third trip should have
Finally, as to damages, the same question is raised that has already been considered in the case of The Oregon v. Iron Co., 55 Fed. Rep. 666, (decided at this term.) Under the circumstances here the proper measure of damages was the difference between the freight as fixed in the contract and the freight actually paid on the cargoes which were shipped to take the place of the two cargoes which the Bruce failed to carry. The district court adopted this measure of damages, and its decree was affirmed by the circuit court. The decree of the circuit court is therefore affirmed, with interest, at the cost of the appellant.