165 F. 381 | S.D.N.Y. | 1908
This suit was brought to recover the sum of $5,000, as liquidated damages for the breach of a charter party. The libelant chartered the ship Lawhill to the respondents. The charter contained a clause providing that the charterers should have the option of canceling the charter party if the vessel was not “ready for loading by November 20, 1903, at Yokohama.” On the morning of November 20th the charterers gave notice that they canceled the charter on the ground that she was not ready for loading by November 20th. Thereafter, on November 28, 1903, a supplementary agreement was entered into, by which the respondents agreed to load the vessel under the terms of the original charter at a reduction of $5,000 in the
The Lawhill was not ready for loading on November 20th at the beginning of the working day. The cargo was not entirely out until shortly before noon. The respondents claim that it was necessary that she should be ready for loading at the beginning of November 20th, and that the clause of the charter party allowing the charterers to have the option of canceling the charter “if vessel is not ready for loading by November 20” required that the vessel should be ready for loading before November 20th. I think that the expression “by November 20” means on or before that date. That is a common meaning of the word “by” as shown in the definitions in the dictionaries, and has been so construed in many cases. Oxley v. Bridge, Doug. 67; Coonley v. Anderson, 1 Hill (N. Y.) 519; Ferguson v. Coleman, 3 Rich. Law (S. C.) 99, 45 Am. Dec. 761.
The principal ground, however, upon which the respondent claims that it had a right to cancel the charter is that the vessel was not “ready for loading by November 20 at Yokohama,” because at that time she had taken on board a lot of mud ballast, which occupied a portion of the hold. The evidence shows that a sailing vessel like the Lawhill requires some ballast in her when all the cargo is taken out, otherwise she is in danger of capsizing, and is not seaworthy. Usually, on voyages from japan, sufficient mineral ore or other heavy freight is shipped to serve the purpose of ballast, and it is customary, before the outgoing cargo is entirely discharged, to put in the hold sufficient of the new cargo to keep the ship properly stiffened. Several days before November 20th the captain of the Lawhill applied to the charterers at Yokohama to know what kind of a cargo was to be furnished, but i'eceived no infoi-mation. Thereupon the captain took on board what is called “mud ballast,” about 300 tons of cla3L which was placed in the hold, near No. 2 hatch, ixi a pile aboixt 30 by 20 feet square and rising up about 17 or 18 feet, and thereupon the cargo was all taken out and the vessel ready for reloading by about noon on the 20th. The respondents insist that while this mud ballast was in the ship the vessel was not completely “ready to load” in all her holds. There is no doubt that the right of cancellation is stricti juris, and that, as a general rule, a vessel is not ready to load, within the meaning of such a clause, unless her cargo is completely discharged and she is ready for loading in all her holds, so that the charterer has complete control of every portion of the ship available for cargo. But to this general rule there is an exception,, that the presence of stiffening ballast sufficient to keep the vessel upright does not prevent her from being ready. Carver on Carriage by Sea (5th Ed.) § 221; Vaughan v. Campbell, 2 T. L. R. 33. The respondents claim that, instead of mud ballast, shingle, or stone ballast should have been taken in, axid refer to a clause of the charter which provides:
“Cargo not to exceed wliat the vessel can reasonably stow and carry over and above her tackles, provisions and furniture, and the necessary dry shingle ballast, dunnage and matting which are to be provided by the master.”
My conclusion is that the libelant should recover $5,000, interest and costs, as demanded in the libel.