Belmont v. Tyson

NELSON, Circuit Justice. I. One of the principal questions arising 5n this case is, whether or not, according to the true interpretation of the charter-party, the charterer was bound to furnish cargo for the vessel outside of the west pass into the harbor of Apalachicola? The judge charged that, if the jury found that the vessel was as deep as it was prudent to load her inside of the pass, and that the master went to a proper place outside in order to complete the lading, the parties must be presumed to have understood: that the vessel was to go outside to finish loading, as, upon the contract, she was to have a full cargo. The two entrances into the harbor are called the east and west passes. The east pass will enable vessels to enter drawing some sixteen feet of water; the west those drawing about thirteen. The ship, in this case, entered the east pass, anchored, and took in timber until she drew the sixteen feet, and then passed out, and anchored at the mouth of the west pass, to complete her cargo. When fully laden, she drew from eighteen to nineteen feet of water. It is insisted, on the part of the charterer, that he -was not bound to furnish, cargo beyond the quantity which the vessel could receive within the passes, and get safely out to sea. The owner claims, however, that he was entitled to have a full cargo, and that the charterer was bound to furnish outside the remainder necessary to complete it; and this upon the principle, that the charterer must be presumed to have known the size and character of the ship, and the state of the harbor at the place of loading, and that a full cargo could not be put on board unless a part of it were to be taken in outside of the passes. There is some evidence in the case that this is the custom in the instance of large ships receiving cargo at that port. The evidence, however, is slight, and the case in the court below was not put upon that ground. The voyage was from Apalachicola to Liverpool, with a cargo of timber particularly specified. The whole ship was chartered, the freight to be eighty shillings sterling per load. The owner was, therefore, deeply interested in having a full cargo; and, if the charterer is chargeable with a knowledge of the tonnage and draft of water of the ship, and of the state of the harbor, as I am inclined to think he is, then, as he stipulated to supply a full cargo, it seems to me that the ruling of the court below vt as right, and according to the fair intent and meaning of the charter-party. The full cargo was, in point of fact, delivered outside of the west pass — that is, the cargo was completed at that place. It is claimed, however, on the part of the shipper, that this was upon condition of waiving any claim for demur-rage, which is denied by the master. II. The next material question in the case is, whether or not an arbitration between the consignees of the ship and those of the cargo at Liverpool, in respect to the measurement of the timber, is binding upon the owner of the vessel. The consignees of the cargo claimed that, according to the custom of that [152] port, the freight was to be paid per load, solid measure — that is, defective pieces, on account of splits, sap and bark, were not to be counted — which made a difference in the freight, in this case, of over three thousand dollars. There was a deduction of one hundred and fifty loads in consequence of these defects. A dispute arose as to the measurement, whether it should be according to the rule at Apalachicola or that at Liverpool; and the consignees of the ship, and those of the cargo, referred the question, as above .stated. The arbitrators decided in favor of the usage at Liverpool, and that the measurement must De as between vendor ana vendee, in the case of a sale. The reasonableness of this usage, if it exists, is not very apparent. Certainly, the master or owner, in this case, had no right to dictate as to the quality of the timber put on board. The cargo was selected and delivered at the ship’s tackle by the agent of the charterer. Even if such a custom exists at Liverpool, as it respects the consignee of the cargo, I doubt if it can be regarded as a defence in a suit against the charterer for the freight. I can understand his contract in no other way than as stipulating to pay the eighty shillings sterling for every load of timber of such quality as he has delivered on board. This is, I think, the clear sense of it. According to the usage, as claimed at Liverpool, if the whole cargo which the shipper saw fit to ship, were there deemed not merchantable, no freight at all would be due or collectable. The question here, however, is as to the effect of the arbitration. The court below held that it could not bind the charterer, and that, as the award must be mutual, it did not bind the owner. I am inclined to think this position sound. As I hold the true construction of the charter-party to be, that the charterer was bound to pay the freight at Liverpool according to the measurement at Apalachicola, that is, without excluding bark, sap, or splits, I do not see that the consignee of the cargo had any power, in the absence of Belmont, to change it. If the award had been adverse to him, he might have repudiated it. If the consignee had paid higher freight than was stipulated for in the charter-party, clearly, he could not recover it of the consign- or-owner; and. if such higher freight had been paid after an arbitration, that would not, I think, help the case. The same principle is also applicable to the consignee of the ship. Neither he nor the master had any power to change the contract of the owner. So far as respects the authority of the consignee of the ship in this case, it may be, upon the facts, that the master, who was part owner, and was present, acting in the matter, though he did not sign the submission, would be bound, and hence that the award would operate upon his interest. This branch of the case must, therefore, rest upon the position laid down by the court below, namely, that the award was void as it respected the rights of the charterer; and that, if so, it could not operate to bind the other party. There is another consideration that should be stated. If, as is asserted, it is the custom at Liverpool to pay the freight according to the measurement at that port, and not at the port of shipment, the usage can prevail only in cases where such measurement is not inconsistent with the contract in the charter-party, or can prevail only as it respects the implied engagement of the consignee to pay the freight, leaving the obligation of the shipper to stand upon his contract of affreightment; for, it would be difficult to admit that any custom or usage, however well settled, could be allowed to change his express agreement. In this view, the arbitration in the case may possibly be regarded as a mode of ascertaining the amount of freight to be paid by the consignee, leaving the contract in the charter-party unaffected, except so far as the payment of the freight at Liverpool may be taken in abatement of the amount due from the shipper. There are some minor points raised in the case, but, if the ruling of the court can be maintained upon the two questions that I have noticed, I think the case free from difficulty. These questions are somewhat embarrassing, but, for the reasons stated, I am, as at present advised, inclined to concur in the disposition of the case by the court below, and to affirm the judgment.