274 F. 990 | S.D.N.Y. | 1921
(after stating the facts as above).
I shall assume that the scope of the eleventh article is that the orders of the Interstate Commerce Commission absolutely prevented the respondent from obtaining a cargo for the ship. It is clear that the pleader does not mean to aver that it was so prevented by the strikes and labor troubles alone. The pleading at least on exception must be taken to mean that the labor troubles caused so much delay and dislocation of transportation that the Interstate Commerce- Commission found it necessary to intervene, and that its intervention proved a fatal obstacle to the respondent’s performance. The excuse is therefore necessarily based either upon the frustration of the venture by an event so unexpected as to amount to excuse, or upon a situation which was within the exceptions of the charter party (clauses nos. 3 and 7).
England being the greatest maritime nation, we have always accorded much weight to the decisions of its highest courts in all matters maritime. 1 should be disposed, I think, to yield to the authority of that court, even though I might be in considerable doubt. However, it does not seem to me that there is really any room for doubt in the case at bar, even without the authority in question. What must be the inevitable conclusion from the conduct of an owner who had before him a printed form which limited the charterer’s excuses to matters ejusdem generis with riots, strikes, accidents, and railway obstructions, and who expressly inserted the word “whatsoever,” which was not necessary to the clause as it stood, and which could therefore have no meaning except make the, excuses general? I can imagine that if the word had occurred in the printed form it might be treated merely as scrivener’s tautology, but the deliberate insertion of it in writing necessarily presupposes a purpose to extend the charterer’s rights.
In one of the cases, however, it does not appear, and the case stands with the rule ejusdem generis applicable to clause 3 of the charter party. I have just considered this question at perhaps too great length in The Poznan, 275 Fed. -, filed July 9, 1921, and it will be unnecessary to discuss it again. The only distinction between that case and this is that if I am to find a “genus” or single “category” within which under Lord Justice Farwell’s doctrine all the enumerated excuses must be comprised, it would be more difficult to do so than in the bill of lading of the Poznan, and perhaps it would be impossible. That doctrine, as I there said, does not appear to me to be based upon the authorities. 1 recognize its logical perfection, but that seems to me its very imperfection when applied to everyday affairs. 1 do not believe that men mean anything so definite and conclusive when they draw up documents of this character. The doctrine has been disapproved several times in England since it was announced, and with the greatest deference, 1 cannot believe that it is the law there, or should be the law here. Therefore I hold that clause 3 does not excuse the charterer in the libel of the owners of the steamship Morte.
In England the case seems first to have come up before Lord Kenyon, in 1801, in Blight v. Page, 3 B. & P. 295, note, in a case where the exceptions were directly adjacent to the owner’s covenants, and was ruled against the charterer. Lord Alvanley, in Touteng v. Hubbard, 3 B. & P. 292, made the same ruling obiter, and there were actual decisions to the the same effect in Sjoerds v. Luscombe, 16 East, 201, and Storer v. Gordon, 3 M. & S. 309. In Ford v. Cotesworth, L. R. 5 Q. B. 544, the charterer was excused on the ground that the discharge was prevented by vis major, but Mr. Baron Martin, at page 548, declared that he regarded the exceptions as mutual in any event. In Barrie v. Peruvian Corporation, 2 Com. Cas. 50, Mr. Justice Mathew examined the whole clause in which the exceptions were contained, and because it began and ended with mutual provisions, held that the exceptions were also to be considered as mutual. Mr. Justice Bigham, who had been counsel for the owners in Barrie v. Peruvian Corporation, supra, followed that case, though against his judgment, in Newman, etc., Co. v. British, etc., Co. (1903) 1 K. B. 262, and Mr. Justice Scrutton did the same thing in Embiricos v. Sydney Reid Co., 19 Com. Cas. 263. On the other hand, Mr. Justice Greer, in Aktieselskabet Frank v. Namaqua, etc., Co., 25 Com. Cas. 212, reached a different result in a case where the only exceptions were in the second of three clauses.
The first clause concerned the charterer’s loading, and the third his discharge; but the second contained nothing which could be deemed mutual, unless it were the exceptions. In this respect it differed from Barrie v. Peruvian Corporation, supra. In Cazalet v. Morris (1916) Session Cases, 952, the Scotch Court of Session, after a full discussion, declined to follow Barrie v. Peruvian Corporation, supra; but in that case it did not appear that any part of the clause in which the exceptions occurred was mutual. Mr. Carver, section 150, seems to understand that if the exceptions are only annexed to the shipowner’s covenants, he alone is to have the benefit of them, but if they follow several clauses which relate to the obligations of both parties, they are to be construed mutually.
In the case at bar the probable intention of separating the exceptions in clause 7 into two sentences was to distinguish between such events as might be due to the crew’s negligence and such as could not, though it must be admitted that this division is not altogether accurate. I think it hardly probable that there was a deliberate purpose to make the first exceptions mutual, since it would have been quite easy to include the word “mutual,” had that been so intended. However, the clause as a whole contains a sentence expressly in the charterer’s favor, and the provision for the Harter Act at the end begins with the words, “it is also mutually agreed.” In such documents I think that any attempt by refined analysis to piece together a consistent meaning is apt to prove delusive; the interpretation must be cruder, because the intent is
It is therefore unnecessary to consider whether independently of the exception the charterer would be excused under the doctrine of vis major. Ford v. Cotesworth, supra; M. O. H. of West Indies v. Hannevig, supra.
In Stathatos et al. v. International Freighting Corporation, the exception was mutual and the point does not arise.
I do not find anything iu Judge Rose’s opinion in Hellenic, etc., Co. v. Archibald McNeil & Co., Inc. (D. C.) 273 Fed. 290, which conflicts with what I have said. He did not determine any of the questions raised by the pleadings here, but was passing on the facts. It does not, of course, follow that the respondents can make good their defenses any more than they did before Judge Rose, but if they show an absolute prevention from loading any cargo, owing to the orders of the Interstate Commerce Commission, I think they are excused from performance.
The exceptions are therefore overruled to the eleventh article of the answers in the first five suits and sustained as to the tenth article. The exception to the fourteenth article of the answer in the Stathatos libel is overruled.
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