61 F. 849 | 9th Cir. | 1894
Lead Opinion
On the 16th day of September, 1890, the British ship Dunstaffnaage, then on a voyage to a South American port, laden with lumber, was chartered to J. W. Grace & Co., merchants of San Francisco, to bring nitrate of soda “from a
“The said parties of the second part (J. W. Grace & Co.) do engage to provide and furnish the said vessel during the voyage aforesaid with a full cargo, say, nitrate of soda in bags, to be received by the vessel as customary, freight to be paid on the right and full delivery of cargo at the final port of discharge at and after the rate of five dollars U. S. gold coin per ton of 2,240 pounds avoirdupois, English weight, delivered. The said parties of the second part shall be allowed for the loading and discharging of said vessel at the respective ports aforesaid as follows: Thirty working lay days, to commence 24 hours after her inward cargo or her unnecessary ballast is finally discharged. * * * And for each and every day’s detention by default of said parties of the second part, or their agents, they agree to pay to the said party of the first part demurrage at the rate of four i»ence sterling per ton register per day; but, should the vessel be detained by the master beyond the time herein specified, demurrage shall be paid to charterers at the same rate and in the same manner. * * * The cargo shall be received and delivered within reach of the vessel’s tackle. Penalty for nonperformance of this agreement, the estimated amount of freight. The act of God, enemies, political occurrences, fire, and accidents beyond charterers’ control, as well as the dangers of the sea and navigation always excepted.”
TheVessel arrived in due course at Antofagasta, in Cbili, where she discharged her cargo of lumber, and received her instructions from her charterers to proceed to Caleta Buena in Chili, to take a cargo of nitrate of soda. She arrived at Caleta Buena on February 9, 1891. Alter her departure from Antofagasta, and while on her way to Caleta Buena, civil war broke out in Chili between the faction known as the Balmacedists, who supported the president, and those known as the Congressionalists, consisting of the congress of Chili and its adherents; each faction claiming to be the lawful government of the country. The Congressional party were in possession of Caleta Buena when the Dunstaffnaage arrived at that port, and the Balmacedists had no representative there. The president and his party were at that time recognized by the United States and other countries as the government of Chili, and they continued so to be recognized until September 7, 1891, when the Congressional party, having been victorious in the contest, was recognized. By the laws of Chili in force at the time the Dunstaffnaage lay at Caleta Buena, the sellers of cargoes of nitrate of soda were required to pay the government, at the point of shipment, an export duty on sucii cargoes. The charterers of the vessel had purchased in due time a cargo of nitrate of soda for shipment under the charter party, but were unable to obtain a delivery of the same from the sellers after the arrival of the vessel, for the reason, as stated in the stipulation of the parties to this suit, that "no sellers of nitrate would consent to deliver the same for shipment during such time as the Balmaceda party was unrepresented at Caleta Buena, on the ground that a payment to the Congressional party would not be a liquidation of such -duty, and a defense to them as against any claim which might thereafter be made therefor by the Balmaceda party, or a defense against any charge that might thereafter be made against them by said Balmaceda party for the violation of said revenue law.” The vessel
There are two principal questions presented upon the appeal, the decision of both of which must depend upon the construction to he given to certain provisions of the charter party: (1) Was the delay in loading occasioned by the “default” of the charterers? (2) Was the delay excused by virtue of the last clause of ilie charter party, whereby exception is made iu the case of nonperformance of the covenants by reason of “political occurrences,” etc.? The provision for demurrage is one of the stipulations usually found in the contract. In the absence of a clause limiting the liability of the charterers to cases where the deten!ion shall occur from the fault or default of the charterers, or- from some accident or cause specifically named, the obligation to pay demurrage is an absolute one, and its meaning is that, if the ship is detained over the stipulated days, the charterer shall pay the stipulated sum for such time over and above the lay days as the ship is in such condition that she cannot he handed hack for the owner. In Randall v. Lynch, 2 Camp. 352, where the detention was caused by the crowded state of the docks, but the charterer was, nevertheless, held liable, Lord Ellen - borough, in delivering the opinion of the court, said: “I. am of tin-opinion that the person who hires a vessel detains her if, at tin-end of the stipulated time, he does not restore her to the owner.” In Barret v. Dutton, 4 Camp. 833, the detention occurred from a severe frost, which froze the river, and rendered loading impossible. The vessel, moreover, owing to tin- same reason, could not haw-sailed if she had been loaded in the stipulated time. The court, nevertheless, held the charterer liable for demurrage. But, in this <-ase. there is inserted in the demurrage clause a limitation of the liability of the charterers for delay In loading or discharging. It is stipulated that they shall he answerable only for detention which may result from their default. To what extent does this provision modify their obligation? There is in the use of the word “default” no necessary imputation of negligence. As used in such an instrument, it can mean only the nonperformance of contract duty,—a failure upon the part of one of the contracting parties to do'that which he had contracted to do. The most that can he claimed for its effect is that it excludes liability of the charterers for delay in loading or discharging, if the delay result from a sudden or unforeseen interruption or prevention of (lie act itself of loading or discharging. not occurring through the connivance or fault of the charterers. The courts have so construed such limitation in other contracts. In Thacher v. Gaslight Co., 2 Low. 361,
“The proviso intends to exonerate tlie charterers from delay occasioned by superior force acting directly upon the discharge of the cargo, and not from the indirect action of such force, which, by its operation upon other vessels, has caused a crowded state of the docks. If the respondents do not furnish the wharf room, or any other means or appliances which they are to supply, it is not enough for them to prove that they have taken reasonable measures to procure them. In short, the default does not mean negligence, but a failure of contract on their part, unless it is caused by a direct and unavoidable vis major, or something like it.”
In Davis v. Wallace, 8 Cliff. 123,
The appellants rely upon the language of Mr. Chief Justice Waite, in Davis v. Pendergast, 16 Blatchf. 565, Fed. Cas. Fío. 3,647, where, in referring to the limitation of liability to delays resulting from the default of the charterer, it was said:
“Tbe respondent in effect agreed that no more than forty-five running days should be occupied in loading or discharging the cargo, unless it was occasioned by some unusual and extraordinary interruption, that could not have been anticipated when the contract was made.”
There is in the decision no application of the words so used to the facts in that case, and there is no definition of the nature of the unusual and extraordinary interruption not anticipated by the contracting parties, which, in the mind of the court, would have excused the charterers. As a matter of fact, there was no such interruption claimed or proven in that case. The decision actually made was that the charterers were liable for delays which occurred through the intervention of “Sundays and holidays, customhouse and port regulations, and lack of wharfage and lighterage;” that those were risks assumed by the charterers, and that detention by reason thereof placed them in default. But the language of the opinion in that case is inapplicable to the facts disclosed in the
“It was as much the part of tho contract that tho shipper should provide si consignee to receive the goods at the place of destination as that the carrier should transport and deliver them. If, on tho arrival of the vessel, the consignee cannot he found after diligent inquiry by the master, the delay so occasioned ought in justice to be deemed to have been caused by default of the shipper or his agents. * * * By the bill of lading, the Saranac was the consignee to whom the coal was to be delivered. The consequence of her unpunctuality ought ra ther to be borne by the party whose agent she was, and who had particularly stipulated that she would be ready to receive the whole cargo within ten days after the ship arrived, rather than upon the shipowner, who was a stranger 1» the contract.”
But it is contended in tbe second place that, while there may have been no interference with the act of loading, the delay is nevertheless excused by virtue of tbe last clause of the charter party, whereby the performance of all the charterers’ covenants, including the covenant to “furnish and provide a cargo” is excused if prevented by “political occurrences,” etc., and that, if the charterers are excused from furnishing a cargo, they are likewise excused for delay in loading, since tbe cargo must be furnished before it can be loaded. It is sufficient to say in answer to this argument that no political
“It would appear to me to be unreasonable to suppose, unless the words make it perfectly clear, that the shipowner has contracted that his ship may be detained for an unlimited time on account of impediments, whatever their nature may be, to those thinss with which he has nothing whatever to do, which precede altogether the operation of loading, which are no part whatever of it, but belong to that which is exclusively the charterer’s business. * * * If, therefore, you are to carry back the loading to anything necessary to be done1 by the charterer in order to have the cargo ready to be loaded, no human being can tell where you are to stop.”
The case of Hudson v. Ede, L. R. 2 Q. B. 566, cited by the appellant, was a case where, by the terms of the charter party, the vessel was to proceed to the port of Sulinah, and there load a complete cargo of grain, the cargo to be brought alongside the ship at the port of loading, at the charterer’s expense and risk, 30 days to be allowed for loading and unloading, a demurrage over and above laying days, at six pounds a day, “detention by ice and quarantine not to be reckoned as lay days.” It appeared that all grain shipped at Sulinah was kept at points higher up the Danube, and was brought by lighters down the river, and unloaded into ships at Sulinah. The ship being ready to load, notice was given the charterer, but the river immediately above Sulinab became frozen up, and so remained for two months. The charterer was unable to bring his cargo down (he river, and he was held not liable for demurrage. But that was not a case of failure to provide a cargo. It was the decision of the court that since, from the circumstances and the custom of the port, the cargo had to be brought down the river after the arrival of the ship, detention by ice must be construed to extend to detention by ice of the lighters coming down the river to load the ship, and that 1he lighters were as much prevented going to the ship and loading the same by reason of ice in the river as ihev would have been by ice obstructing their movement in the port of Sulinah itself.
It follows front these views (hat the decree must be affirmed, with costs to the appellee.
Fed. Cas. No. 13,850.
Fed. Cas. No. 3,657.
Dissenting Opinion
(dissenting). I am unable to agree to the judgment in this case. The gist of the contract between the parties was that Grace & Go. were to provide and. furnish the ship, within reach of her tackle, at the port of Caleta Buena, a full cargo of nitrate of soda in bags, which the ship should there receive, and transport direct to San Francisco, and there deliver, for a certain stipulated sum per ton of 2,240 pounds; the charterers to be allowed for the loading of the ship 30 working lay days, to commence 24 hours after her inward cargo and unnecessary ballast should he finally discharged, and the receipt by them of written notice to that effect from her captain. The charter party further provided that for each and every day’s detention by default of the charters or their agents they should pay to the ship demurrage at the rate of four pence sterling per ton per day, but should the ship be detained by tbe master beyond the time specified, demurrage should be paid
“The act of God, enemies, political occurrences, fire, and accidents beyond charterers’ control, as well as the dangers of the seas and navigation, always excepted.”
This exceptive clause manifestly applies to each and every covenant of the charter party,—to those on the part of the charterers to procure, furnish, and load the cargo, as well as to that on the pgrt of the ship to transport it. If an act of God or of enemies, or political occurrences, or fire, or an accident beyond the charterers’ control, or of navigation, cause the failure of either party to comply with either or all of the terms of the contract, such failure must be held excused, for the reason that such is the agreement the parties made. The question then is, did such political occurrences intervene between the making of the charter party and the time the ship was ready to enter upon its performance as to exonerate the charterers from liability for the detention to which the ship was subjected? It is conceded that, after the making of the charter party, the charterers purchased, from a certain company at Caleta Buena, the contemplated cargo of nitrate in time for shipment in accordance with the terms of the contract. But, before the time for shipment arrived, what was practically a civil war broke out in Chili between two factions, one of which was called the Balmaceda party and the other the Congressional party, and each of which claimed to represent the legitimate government of the country. That war was in progress when the ship got ready to receive the cargo. The port of Caleta Buena was then in the possession of the Congressional party, and there was no representative of the Balmaceda party there. By a law of Chili then in force, there was payable by the sellers on all cargoes of nitrate sold for shipment from Chilian ports an export duty of $1.50, Chilian money, per 100 Spanish pounds, which duty was payable to the government of Chili at its customhouse at the port of shipment. It is further stipulated by the parties that the only reason why the cargo was not shipped within the time required by the charter party was “that no sellers of nitrate would consent to deliver the same for shipment during such time as the ^Balmaceda party was unrepresented at Caleta Buena, on the ground that a payment of the export duty to the Congressional party would not be a liquidation of such duty and a defense to them as against any claim which might thereafter be made therefor by the Balmaceda party, or a defense against any charge that might thereafter be made against them by said Balmaceda party for the violation of said revenue law.”
It is not important, I think, whether or not the fears of the nitrate sellers were well founded, although it is not unreasonable to suppose, in view of the history of that contest, that payment by a seller of nitrate of the duty imposed by the Chilian law upon its exportation, to the Congressionalists, thereby furnishing them in part with the sinews of the war they were waging against the party headed by the then president of the republic (Balmaceda), might, in the