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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.
DALLAS, Circuit Judge, (dissenting.) As I am unable to concur in the opinion of the court, it is proper that I should indicate the grounds of my dissent, but I will endeavor to do so briefly, and without unnecessary amplification. The sole question, as I view this case, is as to the correct construction of that portion of a contract of charter-party which is in these words:
"The freight to be paid on unloading and right delivery of the cargo at and after the rate of nine shillings sterling per ton of twenty hundred weight on intake weight.”
This clause constituted the agreement with respect to “the freight to be paid." It embraces two incidents of an undertaking for pay. ment of freight. It provides—First, when the freight shall be paid, and on what cargo; and, second, the rate per ton at which it shall be paid, and upon what weight. These two subjects are distinct. They may be separately contemplated. The language quoted does not confound them. As to each of them the legal effect of that language is plain and beyond question. It is that-First, freight was to be demandable at the time of delivery, and only on cargo deliv. ered at the port of delivery; and, second, the amount to be paid (upon cargo so delivered). was to be determined at the designated rate per ton, with reference to weight at the port of shipment, and not elsewhere.
It is suggested, however, that this clause stands in need of construction, although the words employed do not require interpretation, because a certain word which presented itself to the attention
of the draughtsman was not used, but was obviously rejected. In the preparation of the charter party a prin. J form was used, which contained this language:
“The freight to be paid on unloading'and right © livery of the cargo at and after the rate of nine shillings sterling per ton of twenty hundredweight delivered."
This was altered by erasing with a pen the concluding word, "delivered,” and by inserting above that erasure the words "on intake weight.” That, as a result of this, the port of departure was made the place for ascertainment of weight, is agreed; but that this alteration, made as it was made, also effected an in 'ersion of the rule of law (with which the clause, as it stands, accords) that freight, no matter upon what weight to be calculated, is to be paid only upon cargo delivered, I cannot discern. It is not claimed that the latter consequence would accrue from the mere insertion of the words “on intake weight;" but it is supposed to arise from, and wholly from, the erasure of the word "delivered.” Surely the correctness of this supposition is dependent upon the intent with which the erasure was made. We have no evidence or knowledge of that, and, in my opinion, we are not at liberty to indulge in speculation about it. Where construction of a contract is requisite, the circumsi ances of the case are to be regarded; but to attribute to parties, from a circumstance such as we have here, a purpose in direct conflict with that actually expressed, is, in my judgment, not to construe an ambiguous contract, but to substitute conjecture for a perfectly plain one. I cannot, however, perceive any good reason for assuming (were assumption permissible) that cargo, as well as weight, was intended to be affected by the alteration. The erasure and the interlineation were evidently made at one and the same time. They constituted a single continuous act. It is admitted that the interlineation relates solely to weight; and I think it much more likely that, in making the com plete change,--as a totality,-one subject only was in mind, than that two distinct matters were simultaneously in contemplation. It may be that the word “delivered,” if retained, would not have been, even seemingly, discrepant with the interlineation; but this is not unquestionable, and it is, at least, quite possible– I think, even probable; -that the draughtsman supposed that to make the interlineation nicely accurate, the underlying word should be omitted. On the othei' hand, it is to be presumed that these parties were familiar with the subjects about which they were contracting; and, being so, it is scarcely conceivable that they believed that by striking out this single word, which, if it related to cargo, was manifestly superfluous, they were also imparting to those which remained the noninherent and important effect of eluding the operation of a rule of law so long established and acquiesced in that, probably in fact as well as in legal presumption, they had full knowledge of it. The general rule referred to is that in case of a sale of cargo, as in this instance, in the
* When an alteration, though made after execution, leaves the legal effect of the contract unchanged, that effect is not annulled. Tayl Ev. (Bl. Pub. Co. 1887,) 1822; Robertson v. Hay, 91 Pa. St. 242, (247.)
course of a voyage, no freight, with respect to the cargo sold, is recov. erable. Vlierboom v. Chapman, 13 Mees. & W. 230; Hurtin v. Insurance Co., 1 Wash. C. C. 530; Armroyd v. Insurance Co., 3 Bin. 437; Callender v. Insurance Co., 5 Bin. .525; Richardson v. Young, 38 Pa. St. 169. I think that, if the intention alleged had existed, it would now be discoverable without recourse to a dubious inference from an equivocal act. It would, I believe, have been manifested, as it might readily have been, by some appropriate and sufficient alteration of the form which was used. For instance, that form might, by a slight additional alteration, have been made to read thus:
“The freight to be paid on unloading and right delivery of the cargo, and on all cargo shipped, whether delivered or not, at and after the rate of nine shillings per ton of twenty hundredweight on intake weight."
No such simple change as is here suggested was made. On the contrary, there being solely in view, as I am convinced, the single and separate question of the weight upon which freight was to be estimated, no design was indicated to make any peculiar provision with respect to the cargo upon which it was to be paid. True, the word "delivered" was struck out; but, as I have said, the draughtsman may have supposed that word to relate to weight, and I am by no means satisfied that, if he did, he was not right. As has been pointed out, the first part of the clause, as printed, sufficiently stipulated, under the law, for payment only on cargo delivered, viz. “the freight to be paid on unloading and right delivery of the cargo." In what follows the rate and weight to be employed in calculating the amount to be paid are exclusively dealt with, viz. "at and after the rate of nine shillings sterling per ton of twenty hundredweight delivered.” What delivered? Not cargo, for its delivery as a condition precedent to a claim for freight had already been provided for; but the weight, for which otherwise no place of ascertainment would be contractually designated, although the indeterminate rule of the law that, as between the ports of lading and delivery, the lower weight governs, is, I apprehend, not usually acceptable to those for whose general acceptance this form was prepared. Moreover, the word "delivered,” by reason of the place of its insertion, is properly refer. able only to weight, and correctly and naturally qualifies it, and not cargo. The amount of freight (especially in the case of sugar) may largely depend upon the place at which a cargo is weighed, and these parties certainly regarded that circumstance seriously, and, it may be assumed, considered it cautiously. Why, then, is it not reasonable to conclude that the carrier, observing in the printed form provision for payment of freight upon the weight (not cargo) delivered, required such change to be made as would entitle him to payment upon weight (not cargo) shipped; and what more probable than that, simply and solely because of this requirement, the word "delivered" was expunged, and “intake weight” substituted?
In my opinion, the clause in question does not call for construction, but, if it did, I still could not agree that the construction now put upon it would be warranted. Therefore I am constrained to dissent from this judgment.
(District Court, E. D. New York. January 13, 1893.) ADMIRALTY-BOUNDARIES-PORT OF NEW YORK-NORTH BROTHER ISLAND.
The North Brother island is within the port of New York, within the meaning of that term as used in the state statute creating liens on domestic vessels. Laws N. Y. 1862, c. 482, as amended.
In Admiralty. Libel in rem by David Trundy and others against the lighter Tawtemio to enforce a lien for repairs under the New York statute giving liens on domestic vessels. Laws N. Y. 1862, c. 482, and the various amendments thereof. Libel dismissed.
Peter S. Carter, for libelants.
BENEDICT, District Judge. This is an action in rem, brought to enforce a lien for repairs upon a domestic vessel. The statute of the state declares that the debt shall cease to be a lien at the expiration of 12 months after the debt was contracted, unless at the time when such 12 months shall expire such vessel shall be absent from the port at which said debt was contracted. This debt was contracted on November 26, 1891. It ceased to be a lien on November 26, 1892, unless on that day the vessel was absent from the port at which the debt was contracted. When the debt was contracted, the vessel lay at Brooklyn, in the county of Kings. From the 22d day of November, 1892, to the 1st day of December, 1892, she was ashore off the North Brother, having grounded there by accident; and the question is whether the vessel on November 26th was absent from the port at which the debt was contracted, within the meaning of the statute. The word "port” as used in the statute is not synony. mous with the word “place.” It has a more extensive signification. In my opinion, the locality where this vessel lay aground from November 22d to December 1st was within the port of New York. See consolidation act of 1883. This being so, the debt sued for ceased to be a lien upon the vessel before the libel herein was filed.
The libel must be dismissed, with costs.
MURRAY et al. v. NATIONAL CORDAGE CO.
(District Court, S. D. New York. January 21, 1893.) CARRIERS BY WATER-BILL OF LADING TO CHARTERER--RECITALS AS TO CARGO
RECEIVED NOT CONCLUSIVE-MISTAKE IN TALLY.
A ship does not guaranty that the amount of cargo recited in her bills of lading as received on board, and based on her tally, has been actually so shipped and received; nor can the vendor and vendee of such goods,
* Reported by E. G. Benedict, Esq., of the New York bar.
by any private arrangement, make the ship an insurer of the correctness of her tally, as against fraud or mistake, for their benefit, and as a fultillment of the vendor's contract, when not fulfilled in fact; and where there is proof of fraud or mistake the ship and owners cannot be held accountable to the consignee beyond the number actually received on board.
In Admiralty. Libel by John B. Murray and Thomas M. McCrindall to recover freight. Decree for libelants.
Convers & Kirlin, for libelants.
BROWN, District Judge. The libelants are the owners of the steamship Asphodel, which on the 28th of December, 1891, delivered to the respondents at New York a cargo of hemp from Manilla, con. sisting of 17,014 bales. The above libel was filed to recover the sum of $863.04, the balance of the freight due thereon, which the respondents withhold, by reason of their claim of an offset to that amount for the nondelivery of 48 additional bales included in the bills of lading signed by the master. I am satisfied from the evidence that beyond any doubt the steamer delivered to the respondents all the bales that were shipped; and the only question for decision is whether the libelants are bound to make good the value of the missing 48 bales. There is no exception in the bills of lading that expressly covers any mistake in the number receipted for.
The respondents claim to be in the situation of indorsees for value of the bills of lading, and as such entitled to have the ship account for the whole number of bales receipted for, whether shipped on board or not, in accordance with the rule prevailing in the courts of this state and of some other states. Armour v. Railway Co., 65 N. Y. 111; Bank of Batavia v. New York, L. E. & W. R. Co., 106 N. Y. 195, 12 N. E. Rep. 433. In the federal courts, however, the rule as to the liability of vessels and their owners upon the masters' bills of lading is more limited, as was finally determined by the supreme court in the case of Pollard v. Vinton, 105 U. S. 7, reaffirming the case of Freeman v. Buckingham, 18 How. 182. These decisions have been repeatedly held in this district and in others, to be applicable as against bona fide indorsees of the bills of lading. The Loon, 7 Blatchf. 244; Crenshawe v. Pearce, 37 Fed. Rep. 432; Robinson v. Railroad Co., 9 Fed. Rep. 129; O'Brien v. 1,614 Bags of Guano, 48 Fed. Rep. 726, 729. Upon these authorities the offset could not be sustained, even if the respondents were in the situation of bona fide indorsees.
Upon the facts proved, or admitted in the stipulation, however, I do not think the respondents are in that situation. They were the charterers of the Asphodel under a charter of affreightment, which required the steamship to proceed to Manilla, and “there load from the agent of the said charterers a full and complete cargo of hemp, in the usual bales; and thence to proceed to New York and to deliver the same on payment of freight, at the rate of 65 shillings sterling per ton of 8 bales.” The master was to sign bills of lading as presented, without prejudice to the charter. The context, however, shows that this printed clause in the charter had reference to the