CROW V. MYERS.
The ship was loaded under the second chartering, and proceeded duly to Liverpool. After completing her loading at Norfolk, she grounded. on her way to the coal-pier at Lambert's Point. She sailed with 489 tons of coal on board, and had on hand, when ,she arrived, 68 tons, having consumed 421 tons on the voyage. She left Lambert's Point on the 12th, and reached Liverpool on the 29th, January, 1889, making the trip in 17 days. Under the second chartering, Myers & Co. claimed the main between-decks alluded to above, for cargo, but relinquished it on the steamer's agent allowing certain other spaces for cargo, not usually used or allowed for that purpose; and the ship used the main betweendecks for coal. On previous voyages the ship had carried as much as 100 tons of coal on her main, deck, when chartered on rates. In his elaborate examination, Mr. Myers, one of the respondents, stated on the witness stand, in substance, as follows: He had expected the Cambodia in Hampton Roads by the 10th or 12th of December; assuming that she passed Gibraltar on the 15th November, that she would reach New York in 17 days, or by the 3d December, and that she would be occupied 8 days there in discharging her cargo, he accordingly engaged cargo for her to leave Newport News about the 15th, and Norfolk about the 20th, December. Her non-arrival had made it necessary for him to forward the larger portion of the cargo thus engaged by four other stAamers, including 4,939 bales of cotton billed from points in the interior; three of the four steamers taking the cargo being chartered by his competitors in business. He had negotiated for the Cambodia with her agents, Culliford, Clark & Co., in Li,!,erpool. With a view to forcing, as much as might be, an early arrival of the steamer, he had named the 20th J)ecember as the day of cancellation; but, after the agents had informed him, and inserted in the charter-party, that she was expected paPsing Gibraltar on the 15th, the cancellation day ceased to be of importance, and he made it the 25th. He stated that coaling 'before loading was important, for several reasons, viz.: Loading, of course, deepens the draught of the ship 6 to 8 or 10 feet. The depth of water about the coalihg pier at Lambert's Point is 20 to 23 feet, and less at low tide. Vessels sometimes get aground in going there, and sometimes while there. They sometimes have to change at the pier from one hatch to another. If they are aground, they must wait for a tide to shift. Shippers frequently It is engage to sail within a month, or by a certain day in a important for a vessel to coal before loading, in order that these delays incident to coaling may be avoided. In respect to cattle, insurance companies will not take risks unless the ship is coaled before they are put on board. Besides, when the coal is on board and placed, the charterer knows definitely all the spaces available for cargo, and cannot know satisfactorily before; especially as to cotton, which. being exceptionally bulky and valuable, requites all the space that can possibly be obtained. He stated that shippers cannot decide how, or with what, they will load a ship, until they know her build and spaces, and sometimesuritil they have put in the greater part of the oargo. Especially is this so with cotton. Each bale represents a.freight of about $2.50. It has to be
paoked tight, and jammed in with screws. If loaded injudiciously, much space is lost. Suppose one or morefloorinj;s or layers of bales leave a space under the deck above of two feet. The height required for each each layer two feet nine inchesjand thus the room for an entire layer of bales in that hold, and possibly in the whole ship, is lost, to be filled with cotton irregularly stored, or by other kinds of cargo. By judicious, loading this state of things may be avoided. For these reasons, when a ship, never loaded in this port before"comes here to be furnished with cargo, he states that it is the habit of his firm to ask for a plan of her, and, with his stevedore, to carefully calculate where cotton and other cargo may be put in her to best advantage. He carefully preserves the plans of all ships that have been loaded here, in order that negotiations f()r 'chartering them may be intelligently made, when they come again. A plan of the Cambodia is filed in the evidence of Capt. Wildgoose. It shows two classes of spaces,-one class for coal, and the other for cargo. It shows under-decks bunkers for coal having capacity for 192 tons, and between-decks bunkers with capacity for 182tons, making an aggregate capacity for 374 tons of coal. It shows spaces for cargo having an aggregate capacity of 5,105 tons, of 40 cubic Jeet per ton, or of 204,200 cubic feet, made up as follows:, Hold No. I, · · . 88,617 feet. Hold No.2, · 36,727 feet. aold No.3, · 60,592 feet· .After between-decks, · 27,369 fpet. Fore between-decks, · · 24.737 feet. :No.3 hold Iretween-decks, 11,880 feet. Main between-decks, · 4,268 feet· . This plan designates for cargo thE' main between-decks space of 4,268 Allowing 22 cubic feet for each bale, it affords feet, storage for 194 bales of cotton, and represents a freight value, at $2.50 a bale, of $495. When Myers & Co. learned, or Mr. Slaughter saw, 011 the. 24th December, that this main between-decks space was not cleared Qfcoal, and that the master had no intention of allowing it to be used for cargo, they were confirmed in their purpose of canceling the charterparty, which was done on the 2.5th.· It is shown in the evidence in the case that, whatever Btipulationsmay be inserted incharter-parties entered ip.to at this port on the subject of the of coaling, it is not the habit Qf shippers here to require the coaling of the steamer before loading. J. Sydney Biddle, A. R. Hanekel, and Harmansrm & Heath, for libelant.· . Sharp & Hughe8, for respondents. HUGHES, J., (ajter stating the facts as above.) The foregoing statement embraces the controlling facts of the case under consideration, drawn from a great mass of evidence on file. The question of. the case is whether the libelants, stricti juris, had on the 24th December, 1888, complied with the requirements of the Charter-party,.as to readiness to receive cargo, and whether the respondents had a technical right to cancel that instrument. laay stricti juris., because, although 'courts of admiralty, as courts of
equity, are in general reluctant to enforce forfeitures, orto justify recourse to rights merely technical, yet it is proper, and they are ready to do so, where the very right of the case is subserved b)' such action, and where the facts do not fall within the reason of the maxim, ut rea magii valeat quam pereat.' In the case at bar, although the libelant lost by cancellation the benefit of the first charter-party, yet his ship, after a few days, was rechartered by the libelants, and made a prosperous voyage to her home port. The profit from the second charter-party was probably not as great as would have been derived from the first, but the difference was only pecuniary. The ship did not have to go home in ballast, and no serious loss or grievous disaster ·occurred to the libelant. The case was one of greater hardship to the respondents, attended by more or less loss and mortification in business, resulting from disappointment from the unexpectedlytardy movement and late arrival of the ship. The ship passed Gibraltar more than 24 hours later than was expected. Her voyage thence to New York was as much as a day longer than was expected, and she consumed five days more in discharging in New York than either her master or her New York consignees expreSSly indicated that she would consume.. So that, instead of arriving in Hampton Roads by thf;l 12th December, in time to load· before the Christmas holidays, she did not arrive until the 21st, and then was not in condition to give notice of readiness toload until the 24th December, the eve of Christmas. The proof is that rates of freight do, and did then, take a serious faUat Christmas; and even a small decline in rates makes all the difference between profit And loss on charter-party contracts in which, as in the ports of Hampton Roads, the margins of profit are very small. If, therefore, the very· right of the case in this controversy seems to justify a strict and technical construction of the charter-party, there is nothing in the policy of admiralty or equity courts to forbid the application of it. That the margin of profit to the charterers was very small under the first charter-party is shown by some of the facts exhibited in the evidence. The ship was chartered for the lump sum of £4,500, or about $22,000. It was chartered primarily for cotton, in the midRt of the cotton exporting season, when that article pays a higher freight to charterer than any other article of export. The charter-party provides for a full and complete cargo of cotton or other merchandise, at the discretion of the charterers; so that, if a full and complete carge of cotton could be put on the steamer, it was to be presumed that the cargowould in fact be, as nearly as practicable, all cotton. The capacity of this ship for cargo, as shown by the plan of her furnished to the charterers, including the main between-decks cross-bunkers, was 204,200 cubic feet. If every foot of these cargo spaces were of such form and dimensions as to admit of being filled with cotton, the charterers might have put on board 9,281 bales, allowing 22 cubic feet as the dimensions of the compressed bale. From the spaces thus computed must,however, be deducted the displacement necessary to making room for 100 tons of ballast, equivalent in dimensions to 181 bales of cotton. This gives as the utmost number stowable in all the spaces of this ship 9,100
marlredas}or cargo on'l the plan has been mentioned. 'But, the form of c<;>tto,nbales being unchangeable, there ,is lllore or less waste sp!lce in !'towing them onboltrd; this waste being sometimes I judge that in the seven different conipartments of Cambodia, three of them, ,comparatively small, the loss of stowing capadty,for cotton bales. op,the whole ship, would hardly be/less than for 350 bales, and that the most skillful stevedore could hardly store more than.8,750 bales in tbespac!ls marked for cargo on the plan of the l'lhip. The proofs in this case shqw that $2.50 per bale represents the average freight on,cotton from Nor(olk to Liverpool: Therefore, ifMyer, &, Co. could hayeused all the spaces;marked for cargo on the Cambodias they woulcJhave received on at the average of $2.50 per bal!lfor 8,750 bales, the sum of$21,875, and wouldhave realized from their contract about the price which they stipulated pay for the ship. When, therefore, on Mr. Slaughter found that the main between·deckscross-bunkers of the Cambodia were not cleared for cargo, and learned that the master, positively insisted upon using that SPl1ce .for 'coal, it was riot surprising, that his firm finally determined to cancel the charter-party. This space was of capacity for stowing 196 bales of cotton, representing $485 of freight money, which sum is hardly more than the margin of prof:it on which large ships are chllrtered in the cotton season, in this port, for LiverpQOl. If the Cambodia had arrived by the and the OCGqrrences from the period from December 21st hadpappened in, the few days following the 12th, the hardship upon Myers&; Co., of depriving them of the disputed crosspnnkers, would have, not been because, in the comparative blloyancy of freight rates, they Iilight have found sorIl:e way of compensating themselves for the loss, of so much cargo space. Arriving, howas the ship did, at aperi()dofdepression in freight rates, after unexpected delays, it was not unreasonable in MyerS & Co. to expect the master to do as the evidence shows that he had, done on previous *Qyagell, and, byputHng 100 tons of coulon deck, yielded the space in qispute to the charterers for cotton.· 'rhe mnster, however, does not seem have been or a h;is own viewstQ such ,c(:)nsiderations to the interest ,of his charterers. of opinion, from .what has been said, that ,equities of the case at bar were on the side ()f. thE:! respondents, I feel at liberty to place a technical construction provisions of the charter-party under consideration. Aq,d first as to clause defin}ng the space for cargo which should be at the (lharterers' disp.os,al: Qn head the is whether Jhecharterers were. entitll'ld. to. th,e, Olain between-clecks cross-bunkers irtatked as for cargo, with capacity of4,268 cubic feet, upon the plan of Ule ship. This pI lin Of paperisnotpart of thechltrter-party.and cannot be taken to affect .0rOlodify its provisions. It is merely a repre"sentation qf.the ship pints. Its only value is to enable nsto understand more, clearly thi1n. we could do without it the provision of the charter-party .de;fi,ning the spaces to be used by charterers. This instrument gave the clulrterers Ii right to "the entire carrying capaCity
inclucl,ing cress-bunkers * * * and other spaces where of the steamer has usually carried cargo, or would carry cargo if loaded on rates," exClusive of space needed for coal, etc., the owners guarantying "not to OCCu.»y'more space for coals below decks than was occupied on previous'voyages from theUriited States to Europe when loaded With cotto.n for [owners'lbenefit" The last clause of this provision, though showing the. intention of the parties, was not· specifically applicable to the Cambodia, which had made no such voyage with cotton; But it is proved, that the Cambodia had crossed the Atlantic in voyages on which she had started out with 100 ,tons of coal on deck. It is proved that,she made a voyage under. the second charterinF;, in January followingthecancellation'of thefil,'Bt contract, froniNorfolk to Liverpool, with 489 tOns' of CaM. taken on here, and had 68 tons left on her arrivlll at Liverp06l,bavingconsumed 421 tons. The plan of the ship shows that het bunkers below deck, marked for coal, carry 374 tons. Certainly, therefore; with these coal bunkers filled, and 100 tons more ad debk, making'474,only 7 toQs less than .she took on at Norfolk under the seeond the rna-in between-decks cross-bunkers, which her refused fdrcotton, were not "needed" for coal; So that thequestlon simply'is whether the contract, in its spirit and intention, and, itS Use of the term "needed,'" justified Capt. Wildgoose in insisting upon putting coal in the disputed ,cross-bunkers to an amount which be had-before, on occasions, caiTiedon deck. I think it did not justify him, il.nd that the' charterers were entitled to the main between-decks cross-bunkers. As toithe provision re]atfllg to ballast: The charter-patty gave the an option to ship ,grain or heavy cargo, at their discretion, and provided' that 'if heavy cargo was not shipped, and ballast should be required, the ballast should be provided by the steamer. There is no provisionofthe contract which requires the chatterers to notify the master, in adyance'of loading, of the particular kinds and quantities ofdarF;O This matter is governed by the custom olthe .they wotild put on port; and according to thiacustom, and independently of custom; the option of the charterers as to how the cargo should be made up 'continues during the whole period of loading, which, if this shiphll.d'been loaded, might have lasted 17 days, exclusive of Sundays. TheCaet that this continuing option existed made it incumbent upon the master to havebi,lllast on board at the time he gave notice of readiness to receive <largo, or' readily at hand to be taken on board. if the charterer would so require,before loading was completed. In point of fact, the Cambodia broughtno ballast from New York; and her master admits, in evidence, that he could not procure it in Newport News, or anywhere:short of Baltimore. The ship, therefore, if she had been loaded by: the'ehartererswitho1,lt dead-weight cargo, as they had a' right to do, w()uldriot have been in .condition to comply with her stipulation inth,echarterparty .to proceed direct to Liverpool on being loaded. Capt: W'JldfJoose . ;'sought to excuse his neglect in providing ballast by contending tHat the telegram ()'f6thDecember,received from Myers & Co. while he was in New York. asking whether he required cargo to load CC?tton,
was a notification to him that th,e charterers would supply dead-weight cargo. This is an untenable position. . If mere iI;lquiries for information were equivalent to stipulations, all cOmmercial negotiations would come to an end. The master furthermore insisted that in his conversation with Myers in Norfolk, on the the latter engaged to fnrnish flour and logs for It is hardly credible that Myers, with an option, which would last for 17, days, to load entirely with cotton, or to substitute 100 tons of dead-weight cargo in part, would, before he had studied the plan of the flhip then handed him,. and before notice of her readiness to receive cargo, cut himself off from control in the matter by ,agreeing to flour, which he did not have, or logs, which, as to Plost of those shipped from Norfolk and Newport News, too light for dead-weight. The weight of proof,and the probabilities of the case, negative this claim of the master..:The duty was upon the ship of having ballast on board, or at hand, under an. express stipulation of the charter-party; and the. master, was bound by this 'provision to be provided with. ballastbefore,giving notice of readiness to recelvec.argo, · notwithstanding any iofe;rences h El might have drawn individually, from the inq!;1iring. telegram Qr conversation. The. notice of readiness given on the WllS not valid or binding on the charterers; fOJ) the reason that .theship was not provided with ballast, and · could not. have sailed direct .for Liverpool without it. The state of things is similaJ,o in regard to the provisions of the charterparty tlllllt, "if any grain be. shipped, it is to be loaded under inspection of underwriter's surveyor," aodthat, when notice is given of the steamer's, readiness for cargo, "aU of her holds shall have been cleared, and passed for grain." The proofs show that when notice was given, on the 24th December, there wnsmore or less water in ho14 No. most. capacious Pl,U't of the ship,-and that withinthe.same week, when grain was to be aboard under the second chartering, the underwriter's surveyor required ceiling to be done, and boards and timbers put in, which work required about three days for accomplishment. The certificate of the two ex-mariners, Clayton and Adams, given some time on the 24th December, that "the ship was fit for the stowage of any kind of cargo," even if it.had been in time, and ,'even if the ex-mariners had been officers competent and au to" PllSS the ship for grain, "was in point of fact untrue, l\nd therefore worthlef;ls. It is not usual or safe to ship grain in a · hold wet .from a blind leakage, without ceiling, and without protection by ,proper True, if, ip. the period of 17 lay-days during which th& the ship was proceeding, the charterers had found it to their .;interest to ship'grain, in !luch event, these preparations might hav& '. b\ltthecharler-party required, expressly, that the ship should to receive, grain at the time of the notice. Certainly, , this ;provision of the contract was not fulfilled by the ship. r. must rllie in a like manner in respect to coaling. The ship hid not been coaled for the voyage on the 24th December. Ifloaded before coalip.g, .insteadofproceedjp.g dirept for Liverpopl as required byan express stipulation, she would have had to proceed to Lambert's Point or New-