11 F. 429 | D. Maryland | 1882
On Jane 16, 1881, the Norwegian bark Gazelle, 571 tons, being then in the port of Baltimore, was chartered by her master, under the usual grain and petroleum charter used in the Atlantic ports of the United States, to Messrs. Meisner, Ackerman & Co., of New York, for a voyage from the port of Baltimore to “a safe, direct Norwegian or Danish port, as ordered on signing bills of lading, or as near tliereunto as she can safely get, and always lay and discharge afloat.” The charterers agreed to furnish a full cargo of refined petroleum in customary barrels, and to pay freight at the rate of three shillings three pence per barrel. The lay days in Baltimore were to expire July 6th, and for discharging at port of discharge customary dispatch. Demurrage to be at the rate of 11 pounds sterling per day. The cargo to be received and delivered along-side the vessel within reach of her tackles. Lighterage, if any, always to be at the risk and expense of the cargo. The cargo, consisting of 3,131 barrels of refined petroleum, was put on board by the charterers, and on July 6th they tendered to the master of the Gazelle bills of lading, ordering the vessel to the port of Aalborg, on the eastern coast of Denmark. The master refused to sign the bills of lading, except with protest as to the port noted on them, upon the ground that Aalborg was a port into which, on account of shallow water on the bar, no
The charterers contend, firstly, that by the literal meaning of the language of the charter-party, as well as by the meaning which established usage and custom has uniformly given to it, the ship may, under it, be ordered to any safe commercial port within the range described in the charter-party, whether she can get into it or not, provided there is an anchorage near the port customarily used in connection with it, and where it is reasonably safe for the ship to lay and discharge; and they claim that there is such an anchorage used in connection with the port of Aalborg, in the Kattegat, off the bar at the entrance of the Limfiord. In the second place, they claim also that in Baltimore, New York, and other Atlantic ports of the United States, by the established usage and custom of the trade with respect to similarly-worded charters, the contract'is understood to be that if the port to which the ship is ordered is a port within the range described in the charter, and one where foreign commerce is carried on, the master, upon being ordered, is obliged to sign the bills of lading and sail for it; that if the master had intended to refuse to go to that port,' the custom and usage require that he should have excluded and excepted it from the range of ¿orts described in the charter, and, not having excepted it, he is obliged to sign the bills of lading and sail for it; that if, arriving off the port, he cannot enter it by reason of a permanent obstacle, and finds that he cannot safely lay at the customary anchorage and discharge, then he may make protest and go to the nearest port at which he can safely discharge.
As to this latter custom which the charterers have attempted to set up, I do not find that the proof adduced established a general acquiescence in respect to it. It is only quite recently that the ques
Moreover, I do not think that such a usage, if proved, and if admissible under this charter and otherwise unobjectionable, could be sustained as reasonable. If it were the fact that the ship could not, even in ballast, enter the port and remain there always afloat, and that there was no anchorage near the port where she could safely lay and discharge, and these facts were known to the master, and ho was aware that he would from necessity have to go to another port to discharge, a custom which would compel him to sign bills of lading professing that he intended to deliver the cargo at such impossible port, “or as near thereunto as he could safely got, ” etc., and then make a pretence of an effort to go there, might very well suit the merchant who had purchased the cargo and chartered the ship on a foreign order, and was only interested to get the ship cleared and clean bills of lading into his hands, but it would be compelling the master to do a senseless act, calculated to mislead every one dealing with the bills of lading, and likely to give rise to expense, loss, and litigation.
I think there could be no such lawful custom. On the contrary, if the facts in any case be as above stated, and the master knows the facts, then I take it to be his plain duty to refuse to sign the bills of lading unless he chooses to do so with protest as to the port noted on them. It is the peculiar business and duty of the ship-master to know what ports his vessel can enter, and what anchorages are safe, and signing the bills of lading without objection might result in committing him to the acceptance of the port as safe. The Maggie Moore, 8 Fed. Rep. 620; Capper v. Wallace, 5 Q. B. D. 166.
I come, then, to the first ground on which the charterers put their case, viz., that the language of the charter, “to a safe Danish port, or as near thereunto as she can safely get, and always lay and discharge afloat,” and the obligation which, in all the Atlantic ports, it is uniformly understood and conceded arises from the use of that language in such a charter, requires that the vessel shall go to any safe commercial port, within the range described in the charter, provided there
I am aware that in the court of appeal of England, in the case of The Alhambra, L. R. 6 P. D. 68, in a controversy arising under a similar charter, that learned court refused to so interpret this language ; but the custom here proved was not set up in that case, and there was no attempt to show the signification in which the terms of these charters are received and acted upon by those persons who are in the daily practice of signing them. The custom relied upon in that case was a custom of the port to which the ship was ordered, and the 'court held that a local custom of a port to which the ship might chance to be ordered was not admissible to construe the charter-party. I cannot but think that if the custom here set up had been proved in that case it would have been admitted.
But the claimants of the ship contend in this case that even if it be granted that the charter-party has the meaning which under the custom is claimed for it, still the master was justified in refusing to go to Aalborg or to sign bills of lading agreeing to deliver the cargo there.
The port and town of Aalborg is situated in Jutland, on the south bank of the Limfiord, about 17 miles from its mouth at the Kattegat. The waters of the Limfiord are deep, but at its mouth there is a bar some 2,000 feet wide, on which there is ordinarily not over 10 feet of water, and not usually more than 11 feet at the spring tides. Consequently, although from time immemorial there has been a considerable commerce carried on with the port, only vessels of very
There were called as witnesses on behalf of the Gazelle a number of Norwegian ship-masters familiar with the navigation of the Kattegat, and they testify that it is well known to be a stormy, dangerous sea, liable at all seasons of the year to sudden and violent winds from all quarters; that it is difficult for vessels to escape from storms there because of the shoals and intricacies of the channels, the constant danger of being driven ashore, and the lack of harbors of refuge, so that masters, when they can, often prefer to run out into the open ocean to escape a storm rather than risk encountering it in the Kattegat. They state that a vessel lying at anchor off the mouth of the Limfiord would not be sheltered from any winds except from the west or land side, and in case of a wind springing up from any other quarter sufficiently strong to cause the ship to part her cables or drag her anchors, she could not make her escape and would have to go ashore; that no mariner in the Kattegat seeking shelter would ever think of anchoring off the Limfiord as a place of safety; that there are not to be found at the place any of the elements which constitute a safe anchorage, except the one fact that the water deepens very gradually out from the bar, and the proper depth for anchoring can be found with a bottom affording moderately good holding; and,
Without doubt, in the summer months, and about the time when the Gazelle might have been expected to have completed her voyage, storms are less frequent and less violent, and some few vessels of her size are shown to have discharged their cargoes at that season without accident. The masters of' two vessels which have done so were examined. One of them says that he went there, having signed the bill of lading under protest, and only consented to discharge at anchor off the Limfiord upon obtaining an agreement with the consignee for additional compensation. He testifies that with the most favorable weather and during the very best part of the summer, working often at night and on Sundays, he was three weeks discharging a cargo of petroleum. He asserts the anchorage to be unsafe at all seasons of the year, and thinks a vessel would run less risk anchored in the middle of the Kattegat, where she would have more room to maneuver in case she had to seek refuge.
It is shown by these witnesses that the discharging of the cargo is necessarily slow, and liable to interruptions. The so-called lighters are small sea-going sail-vessels which ply between the ship and the port, which is upwards of 17 miles distant up the Limfiord, and if the water is rough they cannot lie along-side the ship. If any accident happens to the ship there is no port nearer than Arhus or Frederickshaven where she could be repaired, and the ballast which she needs before she can proceed to sea after discharging her cargo must also be lightered out to her as the cargo is taken away.
The consideration suggested by this testimony, and the weight of the opinions of master mariners who have had full opportunities of knowing the facts and forming sensible judgment, have convinced me of what I think any one, without the assistance of experts, would be inclined to suppose, viz., that an open anchorage two miles off from a straight coast in a stormy northern sea, with no sheltered port or roadstead near, to which in case of threatened danger a ship could resort for refuge, could not be an anchorage where a. vessel could safely lay and discharge her whole cargo, within the meaning of this charter-party.
In claiming that the master should have excepted and excluded Aalborg before he ’ signed the charter-party, if he did not consider the anchorage a reasonably safe one, the charterers have not the benefit of whatever force there might, in a proper case, be claimed foi
The master of the Gazelle, who, since he has been in command of that vessel, has made seventeen voyages from Baltimore and three from New York to British and continental ports with grain, and who is a Norwegian and familiar with Danish ports, swears that he had never known of Aalborg as a- port to which a vessel of the size of the Gazelle could be ordered under such a charter, and that it never occurred to him that he could be ordered there.
No doubt there are commercial ports and roadsteads to which there are objections as places of safety, but which, having been more or loss improved by artificial protections, and having, from the force of circumstances, become places of large commerce, have come to be well known as ports to which large vessels in great numbers do go. As to such a port or roadstead, it might, in a proper case, be said that long usage, the course of commerce, and the continued acquiescence of ship-owners, had estopped them from now saying that such an objectionable port or roadstead is not safe, and under such circumstances it might well be said that if the shipowner did not intend his vessel to go there, the charterers might require to be-warned of it by a special exception in the charter-party.
It is plain, I think, that Aalborg and the anchorage off the Limfiord does not come within that class.
Before the great increase in the exportation of grain and petroleum, the ports to which vessels were sent from the United States were not great in numbers and were well known; but increasing trade and facilities for internal transportation have opened many new ports in all parts of the world, to which vessels are now sent more or less frequently. Aalborg is one of the ports to which this commerce is new. It was commenced in 1876, and since then, in five years only, some 81 ships are known to have gone there from the United States. Of these some were under charters in which that port was specially named and agreed to, and a special rate of freight paid, and almost all were vessels of such size that a reasonable amount of lightering enabled them to get over the bar and up to the port.
It has been also urged on behalf of the charterers that the master of the Gazelle having, after this controversy had arisen, proposed to
In my judgment the libel filed by the charterers must be dismissed, and there must be a decree in favor of the owners of the ship.