29 F. Cas. 1284 | S.D.N.Y. | 1876
The charter party in this case is very clear in its provisions. It charters the vessel to the respondent for an entire voyage from Leghorn to a port in the United States to be named by the charterer on signing bills of lading. The whole of the vessel is to be at the sole use of the respondent, and the owner agrees to take on board the cargo furnished. The respondent, in consideration of the agreements of the owner, contracts to furnish the vessel with a full cargo, and to pay for the charter or freight of the vessel $3,000 American gold dollars in full, ‘‘payable in cash on the correct delivery of the cargo.” It is stipulated that the master is “to sign bills of lading as presented, without prejudice to this charter party.” There is no exception as to perils of the seas or other misadventure.
The vessel performed the voyage under the charter, but delivered at the port of destination only a pari of the cargo which the respondent put on board at Leghorn. The libel-lants contend that the vessel is entitled to the full freight of $3,000 because she performed the voyage, without reference to whether she did or did not deliver the whole of the cargo which was put on board of her, provided the cargo not delivered failed of delivery because of perils of the sea; and it is claimed that that has been shown.
The libel sets up that parts of the cargo which the vessel took on board at Leghorn were damaged by perils of the sea, after the vessel left Leghorn originally; that the vessel herself was damaged by such perils and put back to Leghorn for repairs; that there part of the damaged cargo was taken from the vessel, without the consent of the master, by “the authorities there,” and was sold by them without his consent, and she was thus deprived thereof; that the master then applied to the agent of the respondent for additional cargo, but the agent instructed the master to proceed with what he had remaining; and that the vessel did so and delivered it and it was accepted.
The libel sets up no loss of cargo by perils of the sea. It sets up damage to cargo by perils of the sea and then avers substantially that some persons whom it calls “the authorities” took away part of the damaged cargo, and sold it without the consent of the master. It does not aver that the part so taken away and sold was so damaged that it could not have been carried forward, or that the sale was necessary or in accordance with the local law, or that the perils of the sea, or damage to the cargo by perils of the sea, had any thing to do with the sale. But, even on the assumption that perils of the seas caused the non-delivery of the cargo which was not delivered, the libellants are not entitled to recover. The contract was a unit. Being a contract for the conveyance of merchandise for an agreed price, it was entire and indivisible, and, as the vessel did not completely perform it, she is not entitled to any part of the $3,000. The freight was not wholly earned by a strict performance of the contract, and, therefore, no freight became due. There is nothing in the charter party on which the court can make any division or apportionment of the $3,000, because there is nothing in it from which it can be inferred that the parties intended'there should be any such division or apportionment. Nor can the respondent be held to have waived the full performance of that part of the contract which provides that the cargo shall be wholly delivered before the charter money is payable, so as to be liable pro rata for the carriage of the merchandise actually delivered. The respondent did not accept or receive the cargo which was delivered. It was delivered, under the bills of lading, to those who received it, and no stipulation in the bills of lading, as to perils of the sea, could prejudice or affect the rights of the respondent under the charter party.
The allegations in the libel that the master applied to the agent of the respondent for additional cargo, and that the agent instructed the master to proceed with what he had remaining, are not sustained by the evidence. The respondent having once loaded the vessel was under no obligation to furnish her with more cargo.
The libel is dismissed, with costs.