263 F. 661 | 5th Cir. | 1920
The individuals composing a partnership doing business under the name of ‘ Seaboard Transportation & Shipping Company (herein referred to as the Seaboard Company), owners of the steam tug Leopold Adler, filed a libel against the dredge-boat Pensacola, claiming an amount alleged to be due under a time charter party between the Seaboard Company and the Atlantic, Gulf & Pacific Company (herein called the Atlantic Company), for the hire of the tug for a round trip to Mobile, Ala., and return, the libel alleging that 11 days and fractions of days elapsed between the time the tug was delivered on March 20, 1918, to the Atlantic Company and the time it was redelivered to the Seaboard Company. A copy of the charter party, the date of which-was March 11, 1918, was made an exhibit to the libel. Among the provisions were the following:
“Tug to be placed at the disposal of the charterers at Galveston, Texas, in such dock or at such wharf or place (where she may always safely lie afloat, at all times of tide), as the charterers may direct, and being, on her delivery, ready for service and tight, staunch, strong and in every way fitted for the service (and with full complement of officers, seamen, engineers, and firemen for a vessel of her tonnage), and to be so maintained during the continuation of this charter party, to be employed in towing dredge Pensacola from a point of sufficient depth of water on the Houston Ship Channel for the tug to safely float, to Mobile, Alabama. * * * That the charterers shall pay for use and hire of the said vessel six hundred dollars ($600.00) per day or fraction thereof, commencing on and from the day of her delivery, as aforesaid, and at and after the same rate for any part of a day; hire to continue until her delivery, with clean holds to the owners, at Galveston, Texas. Payment of said hire to be ma(le in cash, at the office of the Seaboard Transportation & Shipping Company, Galveston, Texas, upon due delivery of the' tug at her berth at the Galveston docks. * * * That the captain shall prosecute his voyage with the utmost dispatch. * * * That time is to commence immediately after midnight March 16, 1918.”
The charter party, as drawn hy the Seaboard Company, was sent with a letter of the same date which expressed an agreement that $492'
“Tug Leopold Adler — Your Dredge Pensacola.
“The writer confirms conversation with your Mr. Walsh to-day. The above tug is now under charter to the Texas Company, and we anticipate the trip to last all the way from 5 to 10 days, depending whether or not the tug is required to await the unloading of the barge towed down or to return here light. If she returns light, she will be here by Monday at least.”
The following is the body of a telegram sent by the Seaboard Company on March 9th:
“This confirms your acceptance tug Leopold Adler at rate six hundred dollars per day effective Friday March fifteenth when tug subject your Instructions this date must be definitely agreed upon otherwise could not hold tug for your information tug now Tampico expects leave soon presumably returning here midweek next must have confirmation to-day.”
A letter of the Seaboard Company of the same date confirmed the telegram, and contained the following:
“We anticipate that the tug should reasonably return to Galveston by the middle of the coming week, about the 13th instant. You estimate that your dredge will be ready by Friday, the 15th instant. While we are figuring on other tows and reserve the right to close with them, if we do not receive an answer finally closing the deal from you this afternoon, we aro ready to fore-go any day’s intervening between the arrival of our tug here and the date of departure of your dredge by Friday. It is necessary, of course, for us to insist upon a definite date when the tug’s time is to begin in view of the reasons above staled. On the other hand, it will pay your principals to stand to lose a day or two of the tug’s time in view of the assurance of having the towboat firm in hand.”
“We accept your offer for charter of the, Leopold Adler at $600 per day, and lay days, if any before starting, at $490, tug to be alongside dredge at Harrisburg Saturday morning the 16th, subject to our orders.”
The following is the body of a letter of the Seaboard Company, dated March 14th:,
“This acknowledges receipt of your letter of the 12th instant with duplicate signed charter party, all of which is now in order. There appears to be no hitch in regard to the tug reporting in time at Harrisburg, as she is due to arrive here Friday night, at which time immediate steps will be taken to turn her over to you.”
A letter of the Seaboard Company, dated March 18th, and written after it learned of the delay by bad weather of the tug’s return to Galveston, and had telephoned the Atlantic Company-on the subject,, contained the following:
“It is with sincere disappointment that the weather has interfered with our plans so seriously. We are, of course, even more so disappointed in view of the fact that we had hoped to move your dredge on schedule time. Certainly the government cannot hold you responsible for circumstances as they have presented themselves, as neither you nor we have control of the weather situation.”
As above indicated, for the Seaboard Company it is contended that the provision of the charter party that “time is to commence immediately after midnight March 16, 1918,” had reference only to the time from which payment was to be made for the tug upon its reporting or being ready for service, and had no reference to a time at which the tug was to be at the service of the charterer. This contention is not reconcilable with the construction given by one of the parties to the charter party at the time it was made and acquiesced in by the other party. The Atlantic Company’s telegram of March 11th shows that its acceptance of the charter party was with the understanding that the tug was to he alongside the dredge at the time stated in the quoted provision “subject to our orders.” The Seaboard Company’s letter of March 14th, acknowledging the receipt of the duplicate signed charter party, shows that it understood that the time for the tug to report was fixed. Its letter of March 9th shows that, when it meant “the tug’s time,” it used those words; whereas, the word “time,” as used in the last-quoted provision of the charter party, is accompanied by no qualifying language having the effect of showing that only “the tug’s time,” and not the time it was to be subject to the charterer’s orders, was meant.
The conclusion is that the award to the Seaboard Company should be for 9 days and a fraction of a day at the charter rate of $600 per day or fraction thereof, less $2,628.12, allowed as a set-off to the Atlantic Company, with interest at 6 per cent, per annum on the balance