271 F. 340 | E.D. Va. | 1921
This libel is brought to recover certain prepaid freight money and damages, for the failure of the re
The libelant charges that the respondent was responsible for this entire loss of time, and particularly that the failure to carry the cargo safely was caused by the unseaworlhiness of the vessel existing at the time of entering into the charter party, and during the entire period of the life thereof, above mentioned, and, moreover, that the damage to the cargo arose from the failure of the respondent to properly protect the same from spontaneous combustion, during the period that the same was on board, as aforesaid.
The respondent admits the receipt of the cargo, and payment of advance freight money, and the issuance of the bill of lading, as claimed by the libelant, but says that the Pehr Ugland was a Danish vessel,
The more important facts in this case are not seriously disputed, namely, that the delay occurred after the cargo was taken on board, ,and between the ship’s readiness for departure on the 27th of September, 1917, and the 9th of February, 1918; .that the cargo was not unloaded and surveyed until the 20th of March, and the ship repaired until about a month later;, that the cargo proved well-nigh a total loss, the samé salving for some $18,000; that the freight money was paid in full, and the vessel proved to be unseaworthy.
Upon this statement of the case, certain legal questions arise as to upon whom the loss of the cargo should fall, and whether the prepaid freight money can be recovered, which involves likewise the determination of whether the charter party should be construed under, English or American law; if under English law, whether prepaid
In 12 Corpus Juris, p. 450, § 51, the doctrine exception is aptly stated as follows:
‘‘Where the contract is to be performed at a place other than at which it is made, the parties, according to the general trend of American authorities, are presumed to adopt the law of the place of performance as the law of idle contract”—citing in note 73 a long list of cases supporting the text, and including in the number Hall v. Cordell, 142 U. S. 116, 12 Sup. Ct. 154, 85 L. Ed. 956; Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104; Andrews v. Pond, 13 Pet. 65, 10 L. Ed. 61.
In the last-named case, Mr. Chief Justice Taney, speaking for the Supreme Court, at page 78 of 13 Pet. (10 L. Ed. 61), said:
“The general principle in relation to contracts made in one place, to be executed in another, is well settled. They are to be governed by the law of the place of performance.”
And in the more recent case of London Assurance v. Companhia de Moagens do Barreiro, 167 U. S. 149, 160, 17 Sup. Ct. 785, 789 (42 L. Ed. 113), Mr. Justice Peckham, citing Andrews v. Pond, 13 Pet. 65, 10 L. Ed. 61, supra, said :
“Generally speaking, the law of the place where the contract is to be performed is the law which governs as to its validity and interpretation. Story in his work on Conflict of Laws, § 280, says: ‘But where the contract is, either expressly or tacitly, to be performed in any other place where the general rule is, in conformity to the presumed intention of the parties, that the contract, as to its validity, nature, obligation and interpretation, is to be governed by the law of the place of performance. This would seem to be a result of natural justice.’ ”
This same subject was considered by the Supreme Court in Liverpool & G. W. S. Co. v. Phenix Insurance Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788, where Mr. Justice Gray, speaking for the court,
2. It seems a concessuum in this case that, under the laws of Great Britain, prepaid freight cannot generally be recovered, certainly in cases where the damages arise as the result of a peril excepted in the charter party, though a different rule doubtless would prevail where it arises from the breach of the contract or charter party. This element becomes immaterial here, assuming the court is right, and that the English law does not control.
“The English cases on the subject of prepaid freight do not express the law of this country. Here prepaid freight, in the absence of an agreement to the contrary, must be returned to the shipper, if the goods do not arrive, and in such ease the shipowner cannot recover it of the shipper, if not actually prepaid. For this we have the high authority of Chancellor Kent in Watson v. Duykinck, 3 Johns. (N. Y.) 335 (1808) ; Griggs v. Austin, 3 Pick. (Mass.) 20, 15 Am. Dec. 175 (1825) ; Pitman v. Hooper, Fed. Cas. No. 11,185 (1837) ; Phelps v. Williamson, 5 Sandf. (N. Y.) 578 (1852) ; Benner v. Insurance Co., 6 Allen (Mass.) 222 (1803) ; of the Supreme Court in The Kim-ball, 3 Wall. 37, 18 L. Ed. 50 (1865) ; and finally of our own decision in Burn Dine, Ltd., v. Steamship Co., 162 Fed. 298, 89 C. C. A. 278. To the same effect is the law of the continent.”
From a careful review of the authorities it will be found that under American law, in the absence of stipulation to the contrary, a shipper may recover prepaid freight money, from the mere failure to transport and deliver the cargo, regardless of the reasons therefor; whereas, under the English law, he cannot so recover, save in cases arising from breada of contract on the part of the shipowner.
The contract between the parties, and under which their rights arise, was a charter party, a contract of affreightment, whereby the owners of the ship, on the one hand* undertook, for a named consideration, to transport a cargo of coal from a port in the United States, to a port in South America; the cargo owner agreeing to pay in advance for safe delivery of the same at its place of destination. The freight money was fully and promptly paid, and the cargo though promptly
Had there been no specific warranty of seaworthiness, the law would have implied a warranty that the ship was seaworthy, and fitted for the service in hand, and for the faithful performance of which it contracted and accepted compensation. The Director (D. C.) 34 Fed. 57, 65; Pacific Coast v. Bancroft-Whitney Co., 94 Fed. 180, 36 C. C. A. 135; The Nellie Floyd (D. C.) 116 Fed. 80, affirmed 122 Fed. 617, 60 C. C. A. 175; The Dana (D. C.) 190 Fed. 650; Benner Line v. Pendleton. 217 Fed. 497, 133 C. C. A. 349.
The ship should have anticipated the necessity for a crew, and the supply license, pending the effort to secure permission from her government to return to the United States, and not have waited until actual authority was granted. The ship’s master knew the permit was liable to arrive at any time, and had been fully advised by his own agent, 10 days before its arrival, of the issuance of the permit to sail, ■ and having been detained for approximately 3 months with her cargo on board, he should at least have provided the necessary crew, without waiting, under the circumstances, to cause still further loss of time, with its possible serious consequences, as the result proved. Had the ship been ready to sail on the 17th of December, as she should have been, ample time would have intervened to enable her to make her destination before the breaking out of the fire from the alleged cause of combustion, assuming, of course, the ship to be seaworthy. Moreover, the court does not think that the testimony warrants the conclusion that the fire resulted from the combustible character of the cargo. Had this condition been true, it is hard to believe that the fire would not have developed earlier, between the 27th of September and the 12th of February, when the vessel was subjected to all sorts of weather conditions, including September’s heat, and the long freeze during the month of January, and when she was, much of the. time, drifting about, with the ice conditions that then prevailed, and herself in collision with another vessel during the same period.
It seems to the court, under all the circumstances, that fire in the cargo would more likely have resulted from lack of proper care
What has been said makes it unnecessary for the court to consider the various causes of delay set forth in the proceedings in detail, and whether the respondent was exempt from liability under the restraint of princes clause of the charter party, for loss of time to December 27, 1917, and under other restrictive provisions, from portions of the time thereafter occurring, before starting upon the voyage.
The court’s conclusion upon the whole case is that the libelant is entitled to recover for the freight money paid by it, together with the amount paid for the coal, less the net amount realized from its sale, when discharged from the vessel and a decree carrying out these findings will be entered on presentation.