Mencke v. A Cargo of Java Sugar, 108 F. 89

Mencke v. A Cargo of Java Sugar

108 F. 89 | 2d Cir. | 1901

SHIPMAN, Circuit Judge

(after stating the facts as above). On the construction of the two provisions of the charter party which apparently are applicable to this case, the question, not easy of solution, arises. By article 1, the vessel was to disci targe as near the port of discharge as she could safely get, and deliver the cargo, always afloat, in a customary place and maimer, at the dock directed by charterers. New York was one of the1 designated ports, and no question arises as to her safety. In this respect', the facts of the case differ from those in Be Arbitration between Gtoodbody & Co. and Balfour, Williams & Co., 8 Asp. 505, in which Manchester was held not to be a safe port for the vessel in (piesLion, because, by reason of the height of her masts, she could not get under Buncorn Bridge, about 24- miles from Manchester, and about 12 miles from the entrance of the canal, and the ship would have to be dismantled 24 miles from the port. The Benlarig was in tlie port of discharge, and (he Arbuckle dock was a safe one, where she could be always afloat:, and a customary place for tlie discharge of sugar. The exceptional height of her masts and the unusual character of their construction alone interfered with the vessel’s performance of her part of the contract, and, unquestionably, but for article 4, she would have been obliged either to deliver or to pay for the damages occasioned by nondelivery at the Arbuckle dock. Article 4 provides that lighter-age, if any, to deliver the cargo at the port of destination, is to be pit id by the receivers, any custom of the port notwithstanding. The argument of the libelant by which the two claims are sought to be made harmonious, and in which the district judge concurred, is that the cargo is to be delivered at the usual and customary place designated by the charterers or by the single consignee of the entire cargo; but if such delivery is prevented by a permanent cause, such as lack of depth of water or permanent obstructions at the port, and the cargo must be lightered, the expenses of such lightering are to be borne by the charterers. In the application of the construction, the libelant urges that as the Brooklyn Bridge prevented a delivery beyond it, and as a mutilation or destruction of the ship’s masts would be a serious injury, and recourse must be had to lighters, ihe state of facts provided for by article 4 existed.

Article 4 is a well-known provision, and was introduced into charter parties originally to provide for the payment of lighterage *92wben the vessel was unable to deliver the cargo at the dock to which she had been assigned from a cause to which vessels generally might be expected to be subject, such as shoal water or a bar; and if the Brooklyn Bridge was an obstruction to vessels generally, or to such a proportion of vessels as to have become a well-recognized impediment to navigation, the construction of the libelants would be correct. This form of charter is the one commonly used in the sugar, trade for the purpose of meeting a customary condition of affairs in different ports, and in regard to which a custom of the port would naturally exist. The facts in this case were exceptional and eccentric. When vessels having too high masts which can be lowered are ordered to go above the bridge, the masts are housed and thé vessels proceed. Tn the rare instances which appear in the record of immovable masts of excessive height they were- cut. In this case the vessel had steel masts of excessive height, and a recent, exceptional, and immovable method of construction, which makes the repair of the masts a serious affair. The owners knew, or had reason to know, of this peculiarity, but did not insert a provision in the charter that she should not be required to go above the bridge, but preferred to rely upon article 4. The case is that of the claimed application to novel circumstances of a clause intended for a different set of circumstances, and is as if a vessel, unable by reason of its novel construction to reach a dock which 99 per cent, of vessels do reach, should desire to place the expenses of lighterage upon the ■ charterers under article 4. Such an attempt would be, and the facts of this case are, within the letter of the article, but not within its spirit. The decree of the district court is reversed, with costs of this court, and the case is remanded, with directions to dismiss the libel, with costs.