Von Lingen v. Davidson

| U.S. Circuit Court for the District of Maryland | Nov 8, 1880

Waite, C. J.

The only question in this case is whether, on the first of August, 1879, the Whickham was “about to sail from Benizaf with cargo for Philadelphia,” within the meaning of that term as used in the charter sued on. The owners in England, having accepted the contract made for them by their agents in Philadelphia and Baltimore, are bound by its terms just as their agents would be were they principals. The language used must therefore be interpreted, if’ possible, as the parties in Baltimore understood it when they were contracting.

It is conceded that if the' Whickham was “about to sail,” giving that phrase the effect it was intended to have, Schu-macher & Co. took the risk of her arrival in time to answer the purposes; but if she was not, that the warranty to that effect was broken, and her owners must make good the loss caused by the breach.

“About” is a relative term. It may indicate one thing when applied to one state of facts, and another under different circumstances. “Contracts, when their meaning is not clear, ¿re to be construed in the light of the circumstances surrounding the parties when they were made, and the practical interpretations which they, by their conduct, have given the provisions in controversy.” Lowber v. Bangs, 2 Wall. 737. The prominent fact in this case is that a vessel was wanted 'to load at Baltimore in August. This was brought directly to the attention of all the contracting parties, and it was well understood that Schumacker & Co. would not take the Whickham unless there was a reasonable probability of her arrival in time. That the charter would not have been made if it had been known that she could not get away from Benizaf until the evening of the 7th is apparent from the fact that, as soon as it was ascertained she did not pass out from Gibraltar until the 9th, steps were taken to get another vessel in her place. In addition to this, the testimony shows that when the parties were making their calculations as to the time she would probably reach Baltimore, it was assumed that she either had sailed, or, at the latest, would sail on the next day, which was the second of August. It was not supposed that her time to Philadelphia would be less than 20 days, and this, with a reasonable allowance for unloading, could not put her in Baltimore earlier than the 28th or 29th, if she sailed as late as the 2d. Her actual time to Philadelphia exceeded the estimate, but this, if her sailing had been prompt, would have been at the risk of the charterers.

Parol evidence is not admissible to vary the terms of a written instrument, but, where ambiguity exists, it may be given in aid of interpretation to show the facts and circumstances in the midst of which the parties wore acting. These assumptions and calculations are facts in the light of which this indefinito word is to be read. Since “about” may mean a longer or shorter period, according to circumstances, these circumstances tend to show what limitation the parties put upon it in this transaction.

Another important fact is found in the practical interpretation which the parties have, by their conduct, put on the language they have used. Gregg & Co., in Philadelphia, seem to have assumed that the vessel would be about to sail from Benizaf with cargo, within the meaning of their telegraphic authority to Erickson, if she were there loading, and they consequently, in their first draft of the charter-party, described her as “sailed or loading at Benizaf.” This, however, did not meet the views of Schumacker & Co., and they declined to enter into the contract on those terms, claiming that they had agreed for a vessel that was “about to sail.” In this way they, in effect, said that, according to their understanding of the language upon which they had been acting, a vessel might not be “about to sail” if she was only loading at such a port as Benizaf, and with such a cargo as she was getting there. To this suggestion Gregg & Go. apparently assented without objection, for they immediately sent forward the new charter-party, with their signature affixed, in which the vessel was described in accordance with the language they had used in thoir telegram to Erickson. Such conduct shows clearly that the word “about” was used advisedly, as indicating some shorter period of time than, loading would necessarily imply.

Under these circumstances it seems to me clear that the parties must have understood their language to mean that the Whickham had either sailed or was about ready to sail with cargo. It is difficult to reconcile any other interpretation with the undisputed facts in reference to which the parties were acting. Taking this as the effect of the contract, I have had no difficulty in reaching the conclusion that the vessel was not in the condition she was represented to be. Her carrying capacity was something over 1,100 tons. Her cargo was iron ore, wbicb could only be put on board in a particular way, and by band, without the use of machinery. Less than 300 tons were then in, and although the utmost diligence was employed the remainder was not got on board until late in the sixth day afterwards. In short, she was not more than three-elevenths loaded, and the time of finishing was subject to all the contingencies of wind, weather, labor, and boats incident to an open roadstead on the northern coast of Africa. Certainly in this condition she could not be considered as ready to sail. At most she was only loading, with the time of her sailing to a great extent uncertain. It is true that the term “about” implies in such a connection the lapse of some time, but not enough, as it seems to me, in this case, to enable the vessel to do what was required of her to put herself in a condition to sail with cargo under her charter from Benizaf to Philadelphia.

It follows that the original libellants are entitled to recover, and that the cross-libel must be dismissed. A decree may be prepared accordingly.

CONCLUSIONS OF LAW.

1. That the Whiekham was not about to sail from Benizaf on the first of August, within the meaning of that term as used in the charter-party.

2. That Schumacher & Co. are entitled lo recover trom the defendants to their libel the sum of $1,988.25, and the interest thereon from September 11, 1879.

3. That the cross-libel of T. H. Davidson and others must be dismissed.