Corrigan v. Iroquois Furnace Co.

JEXKXNTS, Circuit Judge (after stating the facts as above). In the ease of a charter parly there is-undoubtedly an implied term of the contract, in the absence of any specific provision therein, that a vessel shall have reasonable dispatch in loading and unloading. That reasonable time is determined by the circumstances surround-, ing each case (Empire Transp. Co. v. Philadelphia & Reading Coal & Iron Co., 40 U. S. App. 157, 77 Fed. 919, 23 C. C. A. 564, 35 L. R. A. 623); and it may be said a vessel should ordinarily have prompt dispatch, for such is essential to her profitable employment. But in the case at bar we have not to deal with a simple charter,.party. It was a contract for the transportation of ore during the. season, bf 872 navigation. • It was competent for the libelants to, mate such contract as they chose, and the liability of the respondent must be sought in tjiat contract. The respondent was absolutely bound to furnish for transportation 90,000 gross tons of ore during the season of 1893. It was contemplated that this quantity should be furnished as nearly as practicable in equal amounts monthly during the six months of navigation. To the knowledge of the libelants, the respondent had not at the time of the agreement contracted for the purchase of the ore. It subsequently did so contract with Ogle-bay, Norton & Oo. and Corrigan, Ives & Co., two firms located at Cleveland, and operating mines which were connected with Escanaba by the railway of the Chicago & Northwestern Railway Company; of which fact Corrigan was notified as early as June 13th, up to which time no vessel had been sent for ore. The libelants were not obliged to furnish any particular vessels, but had the right to substitute for those they owned any other vessels. They could not insist that the ore should be ready for shipment at any time they might specify, or at a time when it might be convenient for them to send their vessels for it. Their right under the contract was simply that the specified quantity should be furnished during the season, and that they should have approximately 15,000 tons a month for transportation. They were, not .obliged to take the ore immediately- upon its arrival at Escanaba. They could suit their own convenience with reference to sending their vessels for it, subject only to the -condition that they furnish the respondent sufficient ore to keep its furnace in operation. The respondent by no express term of the contract undertook to be responsible for prompt or reasonable dispatch of the vessels at the port of shipment. It did undertake for such dispatch at the port of delivery, and no complaint is made of detention there. The reason for this distinction is palpable. In the one case the respondent must rely for a supply of ore upon the operation of the mines, and its transportation by rail, over neither of which it had or could exercise control. In the other case the matter was under its control. It is reasonable that it should not bind itself to prompt dispatch in the one case, but should so bind itself in the other. That it did so expressly bind itself with respect to the port of delivery, and did not so bind itself with respect to the port of shipment, is strong to show that the parties understood that it was not to be bound in the latter case, except as the detention should arise from the acts and misconduct of the respondent. “Expressio unius est exclusio alterius.” On the 13th day of June, 1893, the respondent, in answer to a letter from Corrigan of the 12th, asking when ore would be ready for shipment, wrote expressing surprise at the inquiry, as he understood that he should deal with Barr, the agent of the Northwestern Railway Company at Escanaba, to ascertain when ore was ready for shipment. It further appeared from the evidence that the respondent had informed Corrigan of the contract with the two Cleveland firms, who had offices either in the same building or adjacent, and requested him to learn from them when ore was shipped from the mines. That he corresponded with Barr is proven, but the corre 873 spondence is not disclosed. The only ground, to our thinking, upon which the respondent could be held for the detention of the vessels, is that it notified Corrigan that ore would be ready, in consequence of which Corrigan sent his vessels for it, and that they were detained because of failure of cargo; or that, being notified by Cor-rigan that he would send his vessels for cargo at a specified time, the respondent, with knowledge that there would be no cargo for the vessels, failed to notify Corrigan, and so by its fault caused a detention of the vessels. We search the record in vain for evidence indicating any such act or failure on the part of the respondent. The libel charges none, but proceeds upon the assumption that under the contract the respondent was bound to have a supply of ore ready for shipment whenever the vessel should call for it. This is an erroneous construction of the contract, and that error lies at the foundation of the libelants’ case. There is no assertion that 15,000 gi-oss tons of ore were not furnished monthly for shipment while the vessels were engaged in carrying. The respondent failed in its contract to deliver for shipment 90,000 gross tons during the season of 1893. The libel does not proceed for such failure, and the parties by agreement extended the time for the performance .of the contract in that respect, carrying it forward to the season of .1894, when performance was completed. Under the contract, the vessels were not chartered to the respondent. The libelants could use such vessels as they pleased. They could employ in this work the three vessels named, or could substitute others. The situation is clear upon the face of the contract. The ore was to be mined and transported by rail to Escanaba for delivery to the vessels. Time was an uncertain element of the situation, but it was believed that both parties could rely upon receiving 15,000 gross tons per month. At what time in the month that quantity would be ready was uncertain. The capacity of the steamer and her two consorts was from 5,700 to 6,200 tons. To economically do this carrying, it was essential that there should be at Escanaba an accumulation of iron ore sufficient to enable the vessels to make at least two or three consecutive trips from Escanaba to South 'Chicago. It was manifestly the purpose of the parties that in some way Corrigan should ascertain or be informed when ore was ready for shipment at Escanaba, and should not send the vessels there without such knowledge. We think it proven here that he was to obtain such information either from T?arr, the agent of the railway company at Escanaba, or from the agents of the mines at Cleveland, who had contracted with the respondent to deliver the iron ore. If, without such information and upon the assumption that'the respondent was bound to have ore for delivery whenever the vessels should be ready to receive it, Corrigan sent vessels for the ore, and they were detained in consequence, the respondent cannot be charged therefor. It would serve no useful purpose to go through the evidence in this case in detail. It has received careful attention, and we perceive no ground upon which liability can justly be laid upon the respondent for the detention asserted. 874 It may further be observed that this claim would seem to be in large measure an afterthought, growing out of failure to contract with the respondent for its carrying trade in the season of 1895. Ho protest with respect to the claimed detention was lodged with any one, nor extended upon the bill of lading signed by the captain ■of the vessel. Hor was any definite claim with respect thereto preferred until the year 1895, although there had been prompt payments and receipts in full for the freight. The decree is affirmed.