Church Cooperage Co. v. Pinkney

HOUGH, District Judge (after stating the facts as above). Two legal questions are presented by the pleadings: (1) The effect of the release executed at Buenos Ayres; and (2) the meaning of the phrase of the charter, “Vessel agrees to have holds as clean as possible,” taken in conjunction (1) with the recital of the same document, that the Alexandra was at the dale of hiring en route for Port Arthur with a cargo of creosote, (2) with the warranty that she was in every way fitted for the voyage contracted for, and (3) with the warranty of fitness and seaworthiness implied by law. The release does not, in my opinion, cover the claim in suit, which is not for breakage, rust, or stains even of creosote, but for the loss of practically the entire cargo [654] of wine casks, as receptacles for wine, because of an impregnation by creosote odor, undiscovered and unsuspected when the claim was advanced for which the release was executed. As to the second query,- it is clear that the charter party warranty adds nothing to the warranty implied by law, even if the former be not always referable to the date of contract or time of sailing for loading port, as suggested by Mr. Carver in his comments on Stanton v. Richardson. It is enough for this case that: “Where there Is a contract to carry goods in a ship, there is, in the absence of any stipulation to the contrary, an implied engagement on the part of the person so undertaking to carry that the ship is reasonably fit for the purposes of such carriage.” Tattersall v. Nat. S. S. Co., 12 Q. B. D. 300. That no such stipulation is to be inferred from common knowledge of the fact that on a previous voyage the vessel had carried cargo naturally tending to render her unfit for her next engagement is plainly held by The Lizzie W. Virden (C. C.) 11 Fed. 910, and The Carlotta, 9 Ben. 1, Fed. Cas. No. 1,413. The question remains, then, whether the special proviso about cleaning holds is a limitation of warranty. I am inclined to think it is, because it is only by so construing the phrase that any meaning can be given it. If the ship, after fulfilling her engagement of unusual cleanliness, is still held to a complete absence of creosote odor, then the meaning of the charter party would be exactly the same, with or without a sentence obviously inserted solely on account of the known creosote cargo and its known characteristics. In this discussion it is assumed that a warranty of “reasonable fitness” is broken by giving to barrel staves a creosote flavor only discoverable by chemical analysis, or by filling the barrels with a delicate alcoholic fluid, viz., wine, although the wine drinker can only discover the taint by taste, not by smell. I do not assent to this assumption, but it is not necessary to pursue the subject. Whéther, however, the construction of the charter and its warranties to which I incline be right or not, it is to me entirely clear that libel-ants are estopped from asserting the claim in suit. The more important witnesses on this point were examined before me. Both in open court and by deposition libelants have sought to minimize the powers, importance, and authority of one Thompson, who offered the cargo to the Alexandra at Galveston. This insistence has not increased faith in the witnesses who so unanimously hold that Thompson had nothing to do with the loading of the ship; for, if anything can be proven by human evidence, it is that Thompson practically refused to load further cargo unless the ’tween-decks were removed, and, in short, exercised all the authority that inhered in the secretary and treasurer of the chartering company. Decision is not grounded on Thompson’s actions; but this endeavor to explain away ■ or deny Thompson has induced me to believe rather those who are truthful regarding him or know him not. I am therefore of opinion that when this charter was made it was not divulged to respondents that the staves were to be made into wine casks; that as soon as this became known to respondents- they [655] offered to cancel the charter; that libelants’ representatives in New York, after consideration, concluded to rely on the cleaning process and to “take their chances”; that the holds of the Alexandra were made as clean as possible, short of taking the ship apart; and that she finally sailed only when her condition was entirely satisfactory to Thompson, who had ample authority to withhold all cargo, if the holds were not satisfactory. Tor these reasons the libel is dismissed, with costs.