Benson v. Atwood

Tuck, J., delivered the opinion of this court. This is an action by the owners, against the charterers, of a bark, to recover damages for the non-performance of a charter-party, entered into on the ] 9th of June 1852, while the vessel was on her way from Frankfort to San Francisco. It stipulates that the “bark shall sail immediately, as soon as she has discharged her present outward cargo at San Francisco, to one of the guano islands, on the west coast of South America, between latitude one and fifteen south, as he (the captain) shall be directed by the charterer or his agent, at San Francisco, for orders to be furnished him there, at said island, by charterer or his agent, to take thence, or thence and from an adjacent island, a cargo of guano, as may be directed.” It also provides for twenty-five running days, exclusive of Sundays, to receive the cargo,- and for demurrage, at the rate of ⁵⁰ thirty dollars per day, beyond the lay days. The freight agreed upon was fourteen dollars per ton, of 2240 pounds.

The vessel reached San Francisco on the 7th of September, and was ready to sail again on the 14th of that month, but the captain, not finding orders there from the charterers, as contemplated by (he contract, remained until the 26th of October, when he sailed for the Lobos Islands, according to their instructions, which he had received on the 7th. Expenses were incurred at San Francisco, which, the plaintiffs say, resulted from the failure of the defendants to furnish orders when the vessel was ready to sail, on the 14th of September; these, as well as for the delay, they claim as part of their damages. When the captain arrived at the Lobos Islands, on the 13th of December, he found no orders there, nor any person to represent the charterers, and being notified by an officer of the Peruvian Government, that he could not anchor, nor go on shore, he sailed the same day for Callao and Lima, in search of freight, where, on the 13th of December, he chartered the vessel to Barreda & Bro., for a cargo of guano, at the Chincha islands. The vessel proceeded on the voyage, took in cargo, returned to Callao for clearance, that being the port of the Chinchas, and sailed thence for Hampton Roads.

During the passages from the Lobos Islands to Callao, thence to the Chinchas, and again to Callao, and while remaining at the latter port, other expenditures were made by the captain, in respect to which, also, and for the vessel’s delay, the plaintiffs seek to recover damages as having resulted from the defendants’ failure to supply orders at the Lobos Islands. In the meantime, on the 20th of October, the agents of the owners, at New York, had made a charter of the vessel to Barreda & Bro., for a cargo of guano, from the Chincha Islands, in which, as in that of June, she was said to be on her way to San Francisco. This charter was delivered to the captain on "the day he had completed his loading.at the Chinchas, under the charter of December, and on arrival at Baltimore, he settled the freight with Barreda & Bro., at fifteen dollars per ton, of 2000 lbs., according to the October charter, rHthóüt receiving anything additional, as provided by the Lima ⁵¹ charter of December, by which he was to have received twenty dollars per ton, of 2000 lbs.; and which he then can-celled . The canse was tried upon an agreement as to the pleadings, and the verdict and judgment were for the owners.

The plaintiffs offered eight prayers, all of which were granted except the sixth; and the defendants offered seven, all of which were refused, except the second and third. By their second they were allowed a deduction for the time spent at. San Francisco, while the captain was procuring a crew and waiting to hear from the owners. By granting the defendants’ third prayer, the court held that they were entitled to an allowance for the freight agreed to be paid by the December charier, having denied, by rejecting the plaintiffs’ sixth, that the freighters should be held to the charter of October, in ascertaining the freight earned by the new voyage.

The defendants appealed from the rulings against them, but the plaintiffs’ exceptions were not brought before us by an appeal on their part. Before considering the questions presented by the testimony offered at the trial, wo must dispose of .a point made on the part of the charterers, which, if ruled with them, would determine the controversy. It is contended, that this voyage was commenced after Mr. Webster, as Secretary of State, had written to James W. Jewett, stating that citizens of the United States might visit the Lobos Islands for the purpose of obtaining guano, and that this government would protect them in making such efforts; and that the Department having after-wards taken a different view of the subject, as indicated by its subsequent correspondence, and warned the merchant marine of the country, that all such enterprises would be undertaken at the peril of the parties engaged, this contract became illegal, and no recovery can be had upon it. We are of opinion, that this view ought not to have such influence upon the case, even conceding that the correspondence, which is not in the record, should be judicially noticed by the court.

There is nothing in the charter to show that the voyage was projected in consequence of the information received at the State Department. The Lobos Islands are ⁵² not mentioned, nor is there anything to indicate that it was made with reference to them alone. The guano might have been obtained at any of the islands on the west coast, between one and fifteen degrees south. If, as was said, we must assume that the Lobos Islands are within these degrees, we cannot ignore the existence of other guano islands, in latitudes within the terms of the contract, with reference to which, it might be argued, that the parties had undertaken the venture.

But, aside from this consideration, we are to deal with the question according to the actual condition of the Lobos Islands, without regai’d to what the parties may have supposed it to be. If the defendants were misled bjr the officers of this government, they cannot, on that ground, claim immunity from the obligations they have incurred to the plaintiffs. It was competent for them to have made their liability depend on the political status of the Lobos Islands, or on the captain’s being able to load his vessel there. As the instrument contains no saving clause to meet", the contingency that did happen, the case must be governed by the general rules applicable to such contracts, which are thus stated by Lord Eilenborough, in Barker vs. Hodgson, 3 Maule & Sel., 267, where the charterer pleaded that he could not load the ship at the port, because there prevailed a pestilent disease, in consequence of which all intercourse was interdicted by the authorities of the place: “Perhaps it is too much to say, that the freighter was compelled to load his cargo, but if he was unable to do the thing, is he not answerable for it upon his covenant?

Is not the freighter the adventurer who chalks out the voyage, and is to furnish, at all events, the subject matter of which freight is to accrue? The question here is, on which side the bur-then is to fall. If indeed the performance of this covenant had been rendered unlawful, by the government of this country, the contract would have been dissolved on both sides, and this defendant, inasmuch as he has thus been compelled to abandon his contract, would have been excused for the non-performance of it, and not liable to damages. But if, in consequence of events which happen at a foreign port, the freighter is prevented from furnishing a loading there, which he has ⁵³ contracted to furnish, the contract is neither dissolved, nor is he excused for not performing it, but must answer in damages.” The same principle had been applied in several cases of similar character, and it may now be considered the established doctrine, where the contract does not provide against such a contingency as the prohibition, by a foreign government, to export the stipulated cargo.

Bright vs. Page, 3 B. & P., 295, note. Atkinson vs. Ritchie, 10 East, 201. Abbott, 310, 597, (Edition of 1846.) Smith’s Merc. Law, 315.

Parson’s Merc. Law, 365. Randall vs. Lynch, 2 Camp., 356. 12 East, 197. 3 'Patent., 387. 16 East, 201. Flanders on Mar.

Law, sec. 233. It must be borne in mind, that the suit is, not to recover freight actually earned, according to the charter-party, but damages for violation of the contract, on the part of the freighters, in not supplying a cargo. In such cases the law leaves the amount to be ascertained by a jury, according to the liberal principles of interpretation usually applied to commercial contracts, upon consideration of all the circumstances, and of the real injury sustained by the owners, which cannot be settled properly by positive rules; and as this claim arose from the default of the charterers, in the first instance, at San Francisco, and afterwards at the Lobos Islands, it is but just and reasonable, that they should make good any loss that may be fairly attributed to such failure. Abbott, ch. 8. 3 Kent, 218, 219.

Giles vs. Brig Cynthia, 1 Peter’s Adm. Rep., 207. In passing upon the first prayer of the plaintiffs, the court was certainly right in saying that the captain, in the situation in which he was placed at the Lobos Islands, was at liberty to act upon his best judgment for the interest of all concerned, and obtain a cargo at another place, as he did. It would have been against the interest of owners and charterers, and inconsistent with his duty to both, to have remained there longer than was necessary to have ascertained whether the guano could be procured.

On being ordered off, he had no alternative but to steer for another port. Bright vs. Page, 3 Bos. & Pull., 295. The law does not allow the captain to come home, without endeavors to freight his vessel, immediately ⁵⁴ on ascertaining that the cargo cannot be furnished, according to the charter; nor to remain the whole time appointed, and charge the