One Thousand Bags of Sugar v. Harrison

WALES, District Judge. This is an appeal from the United States circuit court for the eastern district of Pennsylvania, affirming the decree of the United States district court for the same district, for the full amount of the libelant’s claim, which was for freight on a cargo of sugar shipped at Hamburg, and to be discharged at the port of Philadelphia, to the order of Clans Spreckels, the appellant. The case was heard in each court on libel and answer. The finding of facts by the circuit court is as follows: “(1) This action was brought to recover the freight on 14,515 bags of sugar, part of the cargo of the steamship Wetlierby, shipped at Hamburg for Philadelphia, which was sold by the master at Hamburg. “(2) The whole cargo, consisting of approximately 25,000 hags, belonged to Mr. Claus Spreckels, the claimant, and was shipped under a charter party, executed on his behalf, for a full cargo from Hamburg to Philadelphia, of which only 10,189 bags were landed and delivered at Philadelphia. “(8) Xu making the contract the parties used the ordinary form of a freighting charter party for the full capacity of the vessel, the printed clause for the payment of freight reading thus: ‘ The freight to be paid on the unloading and right delivery of the cargo at and after the rate of nine shillings sterling per ton of twenty hundredweight delivered.’ The printed word ‘ delivered ’ was struck out by running the pen through it, and the words ‘ on intake weight’ were interlined in writing so that the completed danse reads: ‘The freight to be paid on unloading and right delivery of the cargo, at and after the rate of nine shillings per ton of twenty hundredweight on intake weight.’ “(4) The Wetlierby returned to Hamburg in consequence of damage sustained by a collision with the steamer Sultan in the river Elbe, without fault on the part of the Weiherby. The Sultan admitted full liability in proceedings taken in England to limit the liability of the owners of that vessel. “In consequence of injury to the cargo, caused by the collision, the master sold 14,515 bags of sugar at Hamburg, under the recommendation of a survey, regularly made, as unfit for transportation, to protect the interest of the cargo owner. On arrival at Philadelphia the vessel delivered to Mr. Spreckels 10,849 bags of sugar, the remaining part of the cargo unsold, who paid [830] freight thereon at charter party rates, $2,227.25. He declined to pay the freight on the cargo sold and not delivered, amounting to $3,229.” If the interlineation of the. words “intake weight” had been the only alteration made in the printed form of the charter party, no difference of opinion as to the construction of the contract would exist between the parties to it, and the present litigation would have been ’ avoided. But the striking out of the word “delivered” opens up the question of whether freight was to be payable on the whole intake weight of the cargo which was shipped at Hamburg, or only on the intake weight of that portion of the cargo which was discharged at Philadelphia. In Strickland v. Maxwell, 2 Cromp. & M. 549, the printed form of an instrument executed by the parties had been altered in such manner, by an erasure, as to change a lease from year to year to a term of one year only, and it was held by the court that the words struck out might be looked at by the court to ascertain the real intention of the parties in so erasing them; and that other stipulations, inapplicable to a term of one year, should be considered as also struck out, or as surplusage. What, then, was the intention of the parties to the present suit in canceling the word “delivered?” It will not meet the difficulty by saying that the contract bears the same meaning after as it did before the erasure, or to conjecture that the parties meant nothing at all by the cancellation. The general rules governing the payment of freight are that, in the absence of special agreement to the contrary, freight is payable only on such portion of the cargo which is - actually discharged, and that, if the weight or measurements at the loading port and the port of delivery differ, the lowest weight is to be taken in calculating the freight. The contention of the appellant is that, under the operation of these rules, he is not liable for freight, on the sugar not delivered, on the gr'ound that the alteration of the printed form had no other purpose than to stipulate for the payment of freight on the intake weight of such part of the cargo as should arrive at the port of Philadelphia. His counsel misapprehends the opinion of the court below when he says that it decides “that, whenever the shipper undertakes to pay freight on the intake weight, he thereby stipulates to pay freight whether the cargo arrives in safety or not, provided that it is not lost by the default of the shipowner.” On the contrary, the learned judge who delivered that opinion was careful to say that he could “come to no other conclusion than that the printed clause as originally framed was intended to limit the payment of the freight to so much of the cargo as might be delivered. This, indeed, was the plain effect of the word ‘delivered’ in the connection in which it stood. Why, then, was it stricken out, unless the parties intended that the freight should be paid on the intake weight of the whole cargo? The suggestion that the purpose of the alteration was simply to meet any discrepancy (if such there should be) between the shipping and delivery weights, and to secure to the ship-owner freight calculated on the intake weight at Hamburg, seems to rest upon a conjecture which is unsupported by any fact. Clearly that purpose did not require the erasure of the word ‘delivered.’ ” We are not to suppose that the parties acted in [831] advertently, or without design, in making the erasure; and it has been ingeniously suggested by appellant’s counsel that, it the word “delivered” had been allowed to remain after writing “intake weight,” it would have made the passage an obscure one, and raised a doubt whether the word “delivered” did not control the words “'intake weight,” when the meaning was that the freight should be estimated on the intake weight of the parcel delivered, without regard to loss of weight during the voyage. But it has already been made manifest that whatever obscurity of meaning there may be has been caused by the erasure, and that, if there liad been no erasure, there would be no obscurity. The case of Spaight v. Farnworth, 5 Q. B. Div. 115, furnishes an apt illustration on this point. There the charter party contained the stipulation: “Freight payable ou deals and sawn lumber, on the intake measure of the quantity delivered.” The various pieces had been measured by the shipper at the port of shipment, and their dimensions entered in a specification; the measurement figures being before shipment, chalked on each, piece respectively. During the voyage to the port of delivery a number of the pieces were lost, and the figures on some of the remaining pieces had been obliterated. It was admitted that freight was payable only on that portion of the cargo actually discharged, and the contention was over the mode of getting at the measurement of the pieces from which the figures had disappeared. In that ease the retention of the word “delivered” in the stipulation for freight prevented the very dispute which has arisen here. Again, it is insisted on behalf of the appellant that the words, “freight io be paid on unloading and right delivery of the cargo,” limit the payment of freight to the portion of the cargo delivered. It is well settled, however, that where there is an agreement for the payment of a Iran]) sum for freight, and the whole cargo has been delivered, excepting that part- of it which has been lost by an excepted peril of the sea, without default on the part of the master or crew, the condition of “right delivery” is complied with. In Robinson v. Knights, L. R. 8 C. P. 465, a charter party provided that the ship should load a fall and complete cargo of lath wood, and deliver the same on being paid freight as follows, — a lump sum of £315. There was the usual exception of sea, risks, and it was stipulated that the freight should bo paid in cash, half on arrival, and the remainder “on unloading and right delivery of the cargo.” The ship meeting with rough weather, the deck load was washed overboard, and lost, without any default of (he master or crew. The freighter, on delivery of the cargo, claimed to deduct from the lump sum an amount proportionate to the freight on the deck load which liad been lost; but the court held that where there is an agreement for a lump freight, the shipowner is entitled to he paid the whole of it, although a portion of tiie cargo he lost without default on his part. In Shipping Co. v. Armitage, L. R. 9 Q. B. 99, on a similar state of facts, and involving the interpretation of the words “right delivery,” in connection with an agreement for the payment of a lump sum for freight, the court, after an elaborate discussion, readied the same conclusion which had been arrived at in Robinson v. Knights. In each [832] of these cases the objection was made that the whole of the lump sum agreed upon was made payable only on true and final delivery of the cargo at the port of discharge, and it was decided that “right delivery” meant the delivery of the whole of the cargo which was not lost by an excepted peril. We are not unmindful of the distinction attempted to be drawn between a charter party which stipulates for the payment of a lump sum for freight, or a round sum for the use of a vessel on a particular voyage, and a contract for the payment of freight on the intake weight of cargo at the port of shipment. The conditions on which payment is to be made is the same in principle in each case, and both fall within the rule established by the two authorities last cited. In the place of a stipulation for the payment of a lump or round sum for the use or hire of his ship, the master of the Wetherby was to be paid at the rate of so many shillings a ton on the quantity of sugar taken on board, more or less, which was only another mode of ascertaining, in advance of the sailing of the ship, the sum he should receive at the end of the voyage. By striking out the word “delivered,” as it originally stood in the charter party, the contract between the parties was converted into an agreement substantially like an agreement for the payment of a lump sum, and on the right delivery of the undamaged portion of the cargo the libelant and appellee became entitled to freight on the whole of the intake weight of the sugar. The decree of the circuit court is therefore affirmed.