162 F. 490 | S.D.N.Y. | 1908
(after stating the facts as above). Considering the strictness of Cuban law as shown by the evidence, there can be no doubt that all the expense and loss visited upon the ship for her failure to obtain a bill of health proper for Sagua was reasonably io be expected and proximatcly caused by such failure. Responsibility for such omission must depend upon the terms of the contract made Toy the parties. To be sure, a charter .party is a commercial instrument, and to be liberally interpreted, while evidence of custom, if general, reasonable, and lawful, will often control the construction of doubtful clauses. There is no such evidence here. Such testimony as 'is offered is conflicting and tends to support no general custom, while in my
The price of a bill of health is a consular charge; and all consular charges, “except those pertaining to the captain, officers, and crew,” the charterers “shall prov-ide and pay for.” Charter, § 2. This by inference is a clear statement that the owners shall “provide and pay for” consular charges, which do pertain to “the captain, officers, and crew.” The expression “providing for” a charge is not a happy one; but it is surely the simplest interpretation thereof to hold that what one must provide for he must procure.
Further, a consideration of the first and second sections of the charter clearly shows the reason .for the line of demarkation between owners’ and charterers’ payments and duties. The owner is to keep his ship at his own charges manned, equipped, and fitted to perform the service for which she is hired. The charterer is to pay for every expense incident to his own business. A bill of health primarily relates and pertains to the officers and crew- It is their passport to enter their harbors of destination and there to work their vessel. Only by figure of speech is the instrument called the “ship’s” bill; for, if a ship without a crew can be imagined, the reason for a health bill is gone. All this is exactly true of the omitted Cuban bill, an instrument which could not be filled out without information only to be had from the master regarding himself and his men and their sanitary history.
To have the condition of his crew duly certificated by a bill of health was therefore a duty as much owing by the Olga’s master to his owners as it was to have enough men on board to work ship: and the charterers in turn had the same right to expect and presume a proper certificate of health as they had to expect and presume a healthy crew. It follows that, as between owner and charterer, it was the former’s duty to provide and pay for a bill of health at Key West. That the omission was due to insistence or suggestion by charterer’s agent is (1) not established by a fair preponderance of evidence; (2) if Taylor did give the order sworn to by the master, he had no authority, either real or apparent, to do so; and (3) the master had no more excuse for obeying than for following an unlawful suggestion from the same source as to the personnel of his crew.
This question is nearly a case of first impression. In The Shadwan (D. C.) 49 Fed. 379, affirmed 55 Fed. 1002, 5 C. C. A. 381, the vessel was also at Key West, and it was there impossible lawfully to procure a clean bill of health. The charterer first personally ordered the master to do an impossible thing, viz., procure a clean bill, and then ordered him to proceed to Progresso without it;’ that port of destination being beyond the charter limits. It was held that:
“In undertaking to send the ship to ports outside of the charter limi.s, it was the charterer’s- business, not the owner’s business, to get suitable papers; and the persons employed in doing that business were the charterer’s agents, whether the master or other persons.” 49 Fed. 382.
If it had occurred to Judge Brown that it was the charterer’s business to procure a bill of health for a vessel bound within charter limits, it was surely unnecessary to place the decision in The
The Nicaragua (D. C.) 71 Fed. 726, lays down the doctrine here asserted ; but it cannot be said that the finding was necessary to the point involved in that case. In Lake Steam Shipping Co. v. Bacon (D. C.) 129 Fed. 823, The Shadwan is cited as holding that “ordinarily the charterer is bound to furnish a clean bill of health.” The point under discussion was not involved in that case, and, as above indicated, it does not seem to me that The Shadwan asserts any such general rule.
The second question stated must also depend for solution upon the language of the charter alone, if that be possible. The breakdown clause (section 16) plainly declares that, in the event of stranding, “payment of hire shall cease until [the steamer] be again in an efficient state to resume her service”; and the only material inquiry here is when such efficient state again existed. As soon as it did exist, hire’ began to run again, and no further interruption of payment is to be presumed or inferred in enlargement of the contract of the parties. The Santona (D. C.) 152 Fed. 516.
This action is between owner and charterer only, and, no matter what understandings or agreements existed between charterer and sub-charterer or shipper, the charterer must pay the stipulated hire, unless excused therefrom by his own contract, and none other. Accordingly the charterer contends that something else than mere physical efficiency is meant, or that some evidence of actual efficiency is required, other than the assertion of the master. That physical efficiency only is meant by a breakdown clause similar to the one at bar is, I think, clearly inferable from Hogarth v. Miller [1891] A. C. 48.
Nor will the clause in question (section 16) bear, in my judgment, any other construction. It may be difficult to get cargo insurance on a vessel just freed from stranding (of which, however, no proof is offered) ; but, if there be actual efficiency, that difficulty is not of the owner’s making. If the parties to the charter contemplated any other reason for cessation of hire than physical inability to earn it, or intended to give any effect to the opinions or fears of third persons, they should have said so. Nor does this view work injustice or hardship; for, if actual efficiency do not exist, all parties injured by the lack thereof have their remedy against the ship, whose owners, by their fender, warranted fitness to perform. The charterers, therefore, are entitled to no reduction of hire after the date of tender as pleaded in the libel.
The libelants will take a decree, with costs, for the unpaid balance of charter hire only; the off hire period being as stated in the libel.
