Bangs v. Lowber

2 F. Cas. 590, 2 Cliff. 157

Opinion

CLIFFORD, Circuit Justice.

Suit is brought in the name of the managing owners; and it is objected by the defendants, that it cannot be maintained, because the other owners of the vessel are not joined; but the suit is upon the charter, and inasmuch as the other owners are not named in the contract, they could not be joined in the suit; so that, unless the action can be maintained in the present form, the owners are without remedy. Much reliance is placed by the defendants upon the case of Humble v. Hunter, 12 Adol. & E. (N. S.) 310, to sustain the objection; but it does not appear to support the doctrine for which it is cited. The charter-partj- in that case had been executed in the name of the son; but the suit was in the name of the mother, who was the sole owner of the vessel. Parol proof was offered at the trial to show that the mother was the real owner of the vessel, and that the son had signed the charter-party as her agent, and not as principal. Objection was duly made to the admissibility of the evidence, because the son was described in the charter-party as the owner of the vessel; but it was admitted, and the jury returned their verdict in favor of the plaintiff. Whereupon the defendant obtained a rule nisi to set the verdict aside; and, after argument, it was made absolute, upon the ground that the parol evidence went to contradict the written contract. Lucas v. De la Cour, 1 Maule & S. 249; Robson v. Drummond, 2 Barn. & Adol. 303. No such question, however, arises in this case, as is obvious from the first reading of the agreed statement. The managing owners and ship’s husband executed the charter-party in their own name; and, having brought suit to recover damages for a breach of the contract, the defendants offer to prove that other persons are also part-owners of the vessel. They do not prove, or offer to prove, that the plaintiffs were not fully authorized to make the contract on which the suit is brought, or that the vessel was not rightfully in their possession and under their control. Where the minority in interest refuse to participate in the voyage, vessels are often employed by those owning the majority interest; and, if the latter have the lawful possession and control of the vessel, it has never been held that a charter-party executed by them was invalid; and, if obligatory upon the ship, no reason is perceived why it should not be equally so upon the charterers. Enough is not proved in this case to defeat the right of recovery, even if the objection under other circumstances would be a valid one; and upon that ground alone, it must be overruled; but I am of the opinion that a charter-party, executed in good faith in the name of the managing owners and ship’s husband, is a valid instrument, binding upon all concerned, and that a suit for damages founded upon the same is well brought in the names of the owners expressed in the instrument. Seeger v. Duthie, 8 J. Scott, N. S. [8 C. B. N. S.] 55.

Two principal positions are assumed by the defendants to show that the plaintiffs ought not to prevail upon the merits.

They insist, in the first place, that, by the true construction of the charter-party, it was a condition precedent, that the owners should use the most direct means to forward instructions to the master; and that, upon the receipt of the same, the vessel should be found at Melbourne, and disengaged. Proper means, it is admitted, • were used by the owners to forward the instructions; but the position is that, inasmuch as the vessel had left Melbourne before they were received, the stipulations of the charter-party did not attach at all, because the parties contemplated that the vessel would be at that port, ready to proceed to Calcutta with all possible despatch.

Secondly, they insist that if, by the true construction of the charter-party, its provisions attached to the ship wherever found, still it must have a reasonable interpretation as to time, and that the long period which elapsed before the vessel arrived at Calcutta discharged the defendants from any obligation to load her. Several other propositions are submitted by the defendants; but those already mentioned embrace the whole substance of the defence, as understood by the court.

Whether a particular covenant is to constitute a condition precedent, depends upon the intention of the parties, as it is to be collected from the instrument in which the covenant is contained. Such was the rule laid down by Lord Ellenborough, in Havelock v. Geddes, 10 East, 563; and it is one often cited and universally approved. Charter-parties arfe commercial instruments; and their construction should be liberal, agreeable to the intention of the parties, and conformable to the usage of trade in general, and of the particular trade to which the contract relates. Abb. Shipp. 326. Questions of this nature frequently arise; and there are few that are more difficult to solve, or of more practical importance. Intention is the primary rule; and when that is discovered, as was well said in the case of Stavers v. Curling, 3 Bing. N. C. 355, all technical forms: of expression must give way. Undoubtedly, a particular covenant by one party may .be a condition precedent, so that the breach of it will dispense with the performance of the contract by the other; and whether it is such, or is an independent covenant, is a question to be determined according to the fair intention of the parties, to be collected from the language employed by them; but an intention to make any particular stipulation a condition precedent should be clearly and unambiguously expressed. Where mutual covenants go to the whole of the consideration on both sides, said Lord Ellenbor-ough, in Ritchie v. Atkinson, 10 East, 305, they are mutual conditions, the one precedent to the other; but when the covenants go only to a part, then a remedy lies on the covenant to recover damages for the breach of it; but it is not a condition precedent. Boone v. Eyre, 1 H. Bl. 273. Unless the nonperformance, alleged in breach of the contract, goes to the whole root and consideration of it, the covenant broken is not to be considered as a condition precedent, but as a distinct covenant, for the breach of whicli the party injured may be compensated in damages. Davidson v. Gwynne, 12 East, 389; Abb. Shipp. 342; 2 Smith, Lead. Cas. (Ed. 1855,) 26, 27; Seeger v. Duthie, 8 J. Scott, N. S. [8 C. B. N. S.] 45. Accordingly, it has been held in repeated cases, that such clauses in a charter-party as “ship to proceed with all convenient speed,” or “in a reasonable time,” or “with all possible despatch,” or the like, are not conditions precedent in such instruments, but are clearly independent stipulations, unless it appears that the alleged breach goes to the whole root and consideration of the contract. Take, for example, the case of Clipsham v. Vertue, 5 Adol. & E. (N. S.) 265, where the stipulation in the charter-party was to load, and forthwith proceed to the port of destination. Charterer refused to load; and, upon suit being brought, pleaded to the action, that the vessel did not arrive at the port of lading until after an unreasonable delay. To that plea the plaintiff demurred; and the plea was held bad, because it did not show that the delay frustrated the object of the voyage. Fothergill v. Walton, 8 Taunt. 576. Where the charter-party contained a stipulation to proceed from one port to another “with all convenient speed”; and the master, instead of conforming to the stipulation, willfully deviated, causing a delay of six weeks; and, in consequence of the deviation, the agent of the defendants refused to load the vessel. Tindal, Ch. J., left it to the jury, to determine whether the deviation deprived the freighter of the benefit of the contract. Freeman v. Taylor, 8 Bing. 124.

“Sail with all convenient speed,” were the words of the charter-party in Tarrabochia v. Hickie, 1 Hurl. & N. 183; and the jury found, in an action for refusing to load, that the vessel did not sail with all convenient speed; but the court held, that the finding was no answer to the action, unless it also appeared, that the object of the voyage was wholly frustrated by the .breach of the stipulation. Hurst v. Usborne, 18 C. B. 144. Similar views were also expressed in Dimech v. Corlett, 12 Moore, P. C. 199, where the stipulation was, that the vessel, being tight, stanch, and strong, and properly manned, and every way fitted for the voyage, should, “with all convenient speed,” proceed in ballast to a designated port; and it appeared at the trial that she W'as not then finished, and did not get ready to sail for more than a month. It was held, that the failure to sail as stipulated was no answer to the action, without proof of other loss than that occasioned by the falling of freights. Defendants suppose that the cases, Glaholm v. Hays, 2 Man. & G. 257, and Ollive v. Booker, 1 Exch. 416, assert a different •doctrine; ,but that opinion does not appear to find support in the later cases. Tarrabochia v. Hickie, 1 Hurl. & N. 183; Seeger v. Duthie, 8 J. Scott, N. S. [8 C. B. N. S.] 45; Dimech v. Corlett, 12 Moore, P. C. 199. Perhaps the latest case is that of Behn v. Burness, 5 Law T. (N. S.) 670, where the stipulation was that the ship, “now in the port of Amsterdam, shall, with all possible despatch, proceed to Newport”; and it was distinctly held that the description of the place where the vessel was supposed to be was not a warranty or condition precedent.

Both parties understood that the vessel was at sea, and that she might arrive at Melbourne and be engaged by the master before her instructions would come to hand; and they accordingly stipulated that, in that event, the charter -should be void. The engagement of the ship before the instructions were received, was to render the charter void; but, in the view of the court, there is not a word in the instrument to warrant the conclusion, that the parlies contemplated that any such consequence should flow from the arrival of the vessel at that port, and her temporary departure seeking business. Parties doubtless expected that the ship would proceed from Melbourne to Calcutta; but, when the provision in that behalf is compared with the one providing for the forwarding of instructions, it is evident that it was not intended as a warranty or condition precedent, as the la tier, is framed in the most general terms possible, clearly indicating that the parties contemplated that the instrument might reach the master at other ports than the one to which he was immediately destined. All possible despatch was required or the vessel, and the owners were required to use the most direct means to forward instructions to the master; but no provision was inserted to render the charter void, unless the master should have engaged the ship before the instructions came to hand. Support to this view of the case is derived from the fact, that no day is fixed for the departure of the vessel from Melbourne, or for her arrival at Calcutta. Unless the instructions were received by the master before the vessel sailed to seek business, it must have been understood by the defendants, that some delay would necessarily ensue In the departure of the vessel; and if, in that contingency, they had been unwilling to accept the contract, the reasonable presumption is, that they would have insisted that some more specific provision upon the subject should have been inserted in the charter-party. Provision was made to protect the plaintiffs, in case the vessel was engaged; and, as the parties appear to have understood the effect of a condition precedent, it may well be supposed, that, if they had intended that the contract should be null in case the vessel sailed from Melbourne before the master received the instructions, they would have said so in terms as explicit as those employed in respect to the engagement of the vessel.

Nothing of the kind, however, is to be found in the instrument; and I am of the opinion that nothing of the kind was intended.

Delay ensued, beyond question, for a longer time than the parties expected when the charter-party was executed; and the remaining question is, whether it was of a character, and for such a length of time, as to justify the defendants, under the circumstances, in refusing to load the vessel. When a day is appointed for the payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the tiling, which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied on his remedy, and did not intend to make the performance a condition precedent; and so it is, where no time is fixed for the performance of that which is the consideration or other act. [Clerke v. Pywell,] 1 Wms. Saund. 319b. Moral wrong is not imputed to the plaintiffs in this case, and could not be. if attempted, with any success, as the whole evidence shows that the delay of the vessel was the result of an unforeseen accident, over which the plaintiffs could exercise no control. Under those circumstances, the rule is, that the delay is no answer to the action for a refusal to load the vessel, unless it appear that the effect was to frustrate the voyage. Additional authorities to this point are unnecessary, as those already cited are full to the point. Mill-Dam Foundery v. Hovey, 21 Pick. 439; Stavers v. Curling, 3 Bing. N. C. 353. Applying that rule to the present case, it is quite obvious what the result must be. Sufficient saltpetre, or its equivalent, for ballast, was to be furnished by the defendants; but their agent had not purchased any of the article when he wrote to them on the 27th or November, 1858, that he should consider himself at liberty to throw up the charter. Freight, per charter-party, was if 13 for whole packages, and half price for broken storage; but, when the defendants refused to load the vessel, the rate had fallen more than one half; which, taken in connection with the letter of the defendants’ agent, affords strong ground to conclude that the market rate of freight had more to do with the refusal to load the vessel than any delay which had ensued on her arrival. Full confirmation of that view of the case, if any be needed, is also derived from the subsequent conduct of the agent of the defendants in chartering another vessel to take the place of the Mary Bangs, and loading her with the funds provided to purchase a cargo for the vessel of the plaintiffs.

[NOTE. This decision was reversed in Low-ber v. Bangs, 2 Wall. (69 U. S.) 72S. Mr. Justice Swayne, in delivering the opinion of the court, said that the stipulation that the ship should proceed from Melbourne to Calcutta with all possible despatch should be construed to mean that she should proceed directly from one place to the other, and that to this extent, at least, it was intended to be made of the essence of the contract; that the stipulation was a condition precedent, and not a mere representation nor an independent covenant. Mr. Justice Clifford and Mr. Justice Nelson, dissenting.]

In view of the whole case, I am of the opinion that the plaintiffs are entitled to recover; and, according to the agreement of the parties, an assessor must be appointed to report the amount.