12 F. Cas. 27 | U.S. Circuit Court for the District of Southern New York | 1860
This case does not fall within that class of cases where nothing has been done under the charter of the vessel, that is, where no goods have been placed on board, and the voyage has not been entered upon; in which cases there can be no lien upon -the vessel or cargo under the charter-party. In such cases, whether the breach of the agreement is on the part of the owner or of the charterer, there can be no proceeding in rem against the vessel or the cargo, as no lien has attached for the benefit of either party. Here, the voyage had commenced, upon the very terms of the agreement between the parties. The goods were put on board of the vessel, and, if the lien attached at all, it attached as soon as they were laden on board. So far as the form of the remedy is concerned, it is the same as if the voyage had been broken up by the charterers at any other point in the course of the voyage, after the vessel had been out a week, a month, or longer. The real question, therefore, in the case, is, whether the claim set up by the charterers to put passengers on board, to occupy the cabin, was well founded. If it was, then the refusal of the owner to allow such claim was a breach of the charter, and the charterers had a right to put an end to the contract If not, they were in fault, and the cargo is chargeable for freight and damages.
The charter, which is a very special and well-drawn instrument, clear and readily understood in every part of it. in terms reserves the cabin. It is insisted, however, that this is a mistake, and is inconsistent with other parts of the instrument, and that without the use of the cabin by the charterers, the voyage could not be performed, and that thus the reservation would defeat the contract. But, if there has been any mistake in the charter, or if its terms do not express the intent of the parties, there is another mode of settling the question than calling on the court, in this proceeding, to disregard its clear and undoubted meaning, and that is, to institute a proceeding to reform the contract. As to the objection that the clear words of the charter would necessarily defeat the whole •object of it, and the purpose of the parties in entering into it, I am unable to see this consequence. I do not think the reservation, necessarily excluded the master from the'J cabin, for, although he was to be appointed by the charterers, he was, in a qualified sense, the master of the owner. The owner had duties to perform in respect to the vessel, and some of them appropriately belonged to the master, and in them he, as master, was specially concerned. The possession of the vessel was not to be exclusively in the charterers, neither by the terms of the instrument, nor necessarily, regarding the nature and purpose of the voyage. This construction arises
As respects the lien upon the cargo on hoard, the charter is express. If the breach of the contract had been on the part of the owner, there would, by the contract, have been a lien upon the vessel.
The decree below must be reversed, and a decree entered for the libellant, with a reference to the clerk to ascertain the freight and damage.
