Green v. Cargo of the Lewiston

77 F. 321, 1896 U.S. Dist. LEXIS 88

• Court: District Court, N.D. New York
• Decided: November 25, 1896
• Status: Published

Opinion

COXE, District Judge

(after stating tbe facts). Tbe Lewiston reached Ogdensburg, December 4,1894. December 9th was Sunday. Tbe Welland Canal closed on the 11th. Were the claimants negligent in not unloading the Lewiston during the five working days intervening between the 4th and the 11th? The libelant concedes that unless she could have been released in time to enable her to pass through the canal to the Upper Lakes he suffered no damages. In order to test this question let it be assumed that the contract was, as the libelant insists, a general charter without stipulations on either side. There was then no provision for lay days or demux-rage. The claimants were required to use ordinary diligence in unloading, having reference to the capacities of the port and the circumstances surrounding the transaction. The libelant knew that there was but one elevator at Ogdensburg, that the close of navigation was near at hand and that the voyage to Ogdensburg and back to Buffalo, with the best dispatch, would occupy 10 or 11 da3rs. Through his agent he knew that the elevator was blocked and that several vessels loaded with grain had immediately preceded the Lewiston to Ogdensburg. He was not misled by the claimants. He entered upon the voyage with his eyes wide open. The onus is upon him to prove negligence. Has he done so? The evidence is clear and uncontradicted that with five vessels ahead of her and the elevator choked it was impossible' to unload the Lewiston before the Welland Canal «dosed for the winter. There was no room in the elevator. Had the cargo been passed through the elevator into cars the cars would have remained idle on the tracks for the grain had not been consigned to points further east. Besides, this could not have been done without giving the Lewiston an unfair advantage over other vessels which had arrived before her. There was nothing in the relations between the parties requiring the claimants to take a course so unusual, preferential and injurious to their own interests. But irrespective of these considerations the court has no doubt that the contract permitted the claimants to hold the vessel at Ogdensburg. W. M. Egan, of Chicago, was the duly-authorized agent of the Lewiston at that city., I). T. Helm was in Egan’s employ. The contract was negotiated between Mr. Heim, representing the libelant, and Mr. George I. Harris, representing the claimants. No one else had anything to do with it. All this is undisputed. It had been the custom for several years prior to 1891 for the claimants to charter an extra fleet of boats late in the autumn of each year to carry grain to Ogdensburg and lay up there. Helm knew of this custom for he procured (he charters himself. Indeed, he had made application to Harris, in November, to charter boats for Ogdensburg to lay up during the winter. Por this service a price -was agreed upon which was half a cent in advance of the ordinary freight. Several vessels were chartered by Helm just prior to the Lewiston to lay up during the winter and all were paid the increased price therefor, as was the Lewiston. The Lewiston was the last boat chartered. All that Helm can say is that nothing was said at the time the Lewiston was churlered in reference to her being held over at Ogdensburg. No one disputes this. It was not necessary to say anything. All of the facts regarding the blockade and the necessity for storage vessels were known to Helm. All of the conditions of the charier had previously been agreed on between Min and Harris. When, therefore, on November 28th Helm told Harris “that he could put the Lewiston in to Ogdensburg” and Harris replied “Very well, you can send her to the Central Elevator” for a cargo, the agreement was complete. The conditions were thoroughly understood by each. Silence meant acquiescence in all of the conditions previously assented to. Jf either party wished to change or modify the contract it was his duty to speak out at the lime. The attempt now to change the charter into one for quick dispatch cannot be tolerated. li. comes too late. If Helm had intimated that the Lewiston could only be chartered upon the condition that she was to be unloaded by December 10th, Harris, knowing the impossibility of performing such a condition, would promptly have declined to load her. Hearing nothing of this kind he had a right to assume that the contract was like the preceding ones. In contemplation of law it was as if on November 20th Harris and Helm had agreed during the remaining days of navigation the one to furnish cargoes of grain and pay 4f cents per bushel and the other to furnish vessels to' carry these cargoes to Ogdensburg and remain there during the winter. So long as nothing was said by either party to vary its terms the original agreement remained in force.

There can be no question as to the agreement between Harris and Helm and the court is inclined to the opinion that the libelant is bound by its terms. That Helm was his agent to procure a charter for the Lewiston is conceded. If the agency were a limited .one the character of the restrictions is not disclosed. That there was nothing unusual or unilateral in the agreement to lay up at Ogdensburg is shown abundantly by the proof. It was a customary contract to make during the last days of navigation. Several vessels leaving Chicago before the Lewiston were glad to avail themselves of the extra half cent compensation. Helm could not foresee the extraordinary prolongation of the season of navigation. The agreement was a usual one and advantageous to his principal. In the absence of special instructions to the contrary it was within the scope of the agent’s authority. But whether the libelant was bound by the contract or not there can be no dispute about tbe proposition that the claimants had an absolute right to assume that the contract was made as claimed, to rely upon it, and arrange their matters accordingly. They knew nothing to the contrary until the Lewiston was en route and within a few hours of Ogdensburg. It was then too late to make any change.

The claimants cannot be charged with fault. They acted in good faith. If there were negligence anywhere it must be imputed to the libelant or his agent. Upon no theory of the evidence can he recover damages. The libelant is entitled to a decree for the unpaid balance of freight, amounting to $1,206.82, with interest and costs.