No. 42 | 2d Cir. | Nov 17, 1920
(after stating the facts as above).
is urged that the facts presented bring this cause within what are generally known as the “underlap and overlap” decisions relating to charter parties (Prebensons v. Munson, 258 F. 227" court="2d Cir." date_filed="1919-04-16" href="https://app.midpage.ai/document/prebensens-dampskibsselskabet-as-v-munson-s-s-line-8812225?utm_source=webapp" opinion_id="8812225">258 Fed. 227, 169 C. C. A. 295, and cases cited: The Herm, 170 F. 60" court="2d Cir." date_filed="1909-04-13" href="https://app.midpage.ai/document/walsh-v-tweedie-trading-co-8771207?utm_source=webapp" opinion_id="8771207">170 Fed. 60, 95 C. C. A. 336), and that respondent should therefore be charged with nothing more than the charter hire for the period of detention. But these cases all rest on the finding of fact that the extended or reduced period of service was within the contemplation of the parties, that the contract was meant
“The general purpose of the charter must be understood in accordance with common usage;” but (added the learned court) “had the charter been an absolute agreement to return the vessel at a fixed day, the result would have been quite different.”
While maritime contracts or their interpretation are probably more subject to the influence of usage or general custom than, most other agreements, yet they are and a charter is a contract like another, subject to the same general rules and leading to the same liabilities. We must take these contract writing as they were made; and since neither by pleading nor evidence is any usage or custom, maritime or otherwise, invoked to control construction, we find the words plain and requiring for their comprehension nothing beyond themselves.
To a charter for harbor use only the whole doctrine of voyages is inapplicable; to speak of the trips from pier to pier made by harbor craft as voyages is an absurdity, recognized by the decisions marshaling maritime liens. The Gratitude (D. C.) 42 F. 299" court="S.D.N.Y." date_filed="1890-04-25" href="https://app.midpage.ai/document/bourdon-v-the-proceeds-of-the-gratitude-8839872?utm_source=webapp" opinion_id="8839872">42 Fed. 299. Voyages in any proper sense were not within the contemplation of the parties; they did not think in terms of voyages; and for this fundamental reason the overlap cases have no application. Nor do the written contracts contain any words modifying the obligation to return at the expiration of a month. That the boats were to be returned light covers merely the condition on return; the word cannot be construed as an extension of the time of return.
As to the lighter which was at a Brooklyn pier when the charter period ended, no reason is shown for not redelivering her, except the inconvenience and expense of taking off the subcharterer’s cargo. In respect of the three lighters frozen up in the Passaic river, they were doubtless kept there by the act of God; but the charter party contains no reservation, and winters rendering navigation of the still and shallow waters of Newark Bay and Passaic river difficult, if not impossible, are by no means unknown. Such a contingency might, of course, have been anticipated and guarded against. It is held by controlling authority that—
“A party may by an absolute contract bind himself to perform things which subsequently become impossible, or pay damages for the nonperformance; and such construction is to be put upon an unqualified undertaking, where the event which causes the impossibility might have been anticipated and guarded against in the contract.”
It is only “where the event is of such a character that it cannot be reasonably supposed to have been in the contemplation of the contracting parties when the contract was made that they will not be held bound by general words, which, though large enough to include, were not used with reference to the possibility of the particular contingency” which afterwards happened. Chicago, etc., Ry. v. Hoyt, 149 U. S. 14, 13 Sup. Ct. 779, 37 L. Ed. 625" court="SCOTUS" date_filed="1893-04-17" href="https://app.midpage.ai/document/chicago-milwaukee--st-paul-railway-co-v-hoyt-93595?utm_source=webapp" opinion_id="93595">37 L. Ed. 625. Cf. Rowe v. Peabody, 207 Miass. 232, 93 N.E. 604" court="Mass." date_filed="1911-01-03" href="https://app.midpage.ai/document/rowe-v-inhabitants-of-peabody-6431210?utm_source=webapp" opinion_id="6431210">93 N. E. 604.
It may be, as we held in Atlantic, etc., Co. v. A Cargo of Sugar, 249 Fed. 871, 162 C. C. A. 105, that the measure of damages will turn out to be the current rate of hire; but this depends on the inquiry whether, considering the then condition of New York Harbor and the difficulties of traffic, there was any actual employment available for these lighters during the period of greatest cold, or some portion of it. As to this we offer no opinion, further than to point out that the existence of real damage depends upon the existence of a real chance for ¡profitable employment.
... Decree reversed, with costs, and cause remanded for further proceedings not inconsistent with this opinion.