Orvig's Dampskibselskab Aktieselskab v. Munson S. S. Line

HOUGH, Circuit Judge (after stating the facts as above). This suit is based upon the breach of an undoubted maritime contract, and the form in which it is presented strongly indicates an attempt-at a “ease stated” for the opinion of the court. We have before us a libel that states as facts some matters which can never be more than legal conclusions, also the written charter party; but we know nothing of the circumstances surrounding its fulfillment or occasioning its breach, and are substantially asked from the form of the contract to lay down a rule or rules which would affect charter parties or breaches thereof under any or aE of the peculiarly changing circumstances [958] of maritime affairs. We .shall endeavor to avoid such a performance and stick closely to the skeleton of facts presented. Before now we have said that, “while maritime contracts or their interpretation are probably more subject to the influence of usage or general custom than most other agreements, yet they are and a charter is a contract like another, subject to the same general rules and leading to the same liabilities.” Schoonmaker v. Lambert (C. C. A.) 269 F. 583, at 585. This libel asserts that the latest date upon which respondent could lawfully redeliver the Munch was June 24th, viz. five months and three weeks after the date of delivery. This is not a fact, but a legal conclusion, said to be inevitable under Prebensens v. Munson S. S. Line Co. (C. C. A.) 258 F. 227. We shall assume it to he true, but for argument’s sake only. It is next said that the vessel’s retention until July 1 was a breach of charter party, which is the same legal conclusion. We shall assume this to he true, though we are not informed of the circumstances of retention, nor of any maritime difficulties that may have rendered retention inevitable, and perhaps excusable. By these assumptions we conclude that respondent was guilty of a breach of contract, for which the usual compensation by way of damages has been the current rate of hire during the period of continuing breach. Atlantic Co. v. A Cargo of Sugar (C. C. A.) 249 F. 871. Whether, if current hire had been less than charter rate, the latter rate would have prevailed, is not a question before us; it being admitted that during the week of breach the charter and current rates were the same. Therefore our question is whether libel-ant could, by fixing his steamer for delivery to a new charterer at a remote port on June ,30th, and doing this with the knowledge that he had no right to redelivery from the respondent until June 24th, hold respondent in damages for the loss of that business, and do so without any notice in the premises to respondent. But the question goes even further, and we are not informed whether the shipping' market at Newport News and vicinity had gone off between May 10th and July 2d. Presumably the Munch was chartered in December at current rates, and we know that •current rates and charter rates were (semble universally) the same during the week of detention, so that we are asked to hold that, if •on May 10th there was a brief boom in shipping, libelant had good right to fix his vessel for a date shortly after charter expiration at the rate of such temporary rise, and without notice to the charterer. But even this is not all; the libel asserts that, when the fixture for June 30th failed, and failed at a remote New Brunswick port, the owner’s duty was fulfilled by rechartering in that unfrequented neighborhood and on the best terms there “obtainable under the circumstances.” Result is that, while we are informed that the current rate was the charter rate on July 1st and at Newport News, we do not know whether the original Miramiehi charter was better or worse than the charter in suit, and we are asked to hold as a general proposition that it was libelant’s absolute right to start for Miramiehi after the canceling date and put on respondent the risk of rejection and ensuing apparent sacrifice of the vessel. Under these circumstances we hold, and this is the full extent of our holding, that without pleading or proof of custom or usage, with nothing before us but a charter which is fundamentally a contract like another, it is without precedent in law and against justice that libelant should recover the special damage caused by the loss of the charter party of May 10th without any notice thereof to respondent. Whether, if notice had been given, respondent would or could have been responsible under the other circumstances shown, is not a question before us. Decree affirmed, with costs.