Kimball v. Tudor Co.

2 F. 51

• Court: United States Circuit Court
• Decided: July 1, 1880
• Status: Published

Opinion

Lowell, J.

This case was submitted to me without a jury, and I have stated above the substance of the testimony. Concerning the contract itself there can be no great doubt that it was, in substance, that the plaintiffs chartered their ship from the time she should be finished, and that the defendants took her from that time. The plaintiffs understood this to mean that they had the right to have their ship loaded next after any vessel which should be in the berth, when they notified the defendants that the Eclipse was ready to proceed from,Bath to Wiseasset to be loaded; while the defendants understood it to mean that they should load the ship within a reasonable time after she was at Wiseasset, ready to be loaded, and that it was not unreasonable to require the Eclipse to take her turn next after a vessel which, having already waited ten days, had begun to haul in, or to prepare to haul in, when the Eclipse ¡arrived at Wiseasset, especially if great dispatch was made .in getting the ice on board both vessels. • I think the defendants take the ;true view of the legal result of the contract.

Considering the uncertainty of the plaintiffs’ undertaking, in point of time, namely, to have their vessel ready for the voyage .in about a month or a little more, it is unlikely that the defendants intended to be bound to accept her instantly on the expiration of a time over which they had no control, without regard‘to'.their «engagements with other vessels, or the necessary preparations for loading a ship with ice at Wisoasset. It was a contract by the plaintiffs to have their vessel ready within a,reasonable time after one month; and by the defendants to load within a reasonable time after the vessel was ready.

Under these circumstances it was not unreasonable for the defendants to charter .the Cheesborough, which neither party, I suppose, thought would be ready so soon as the Eclipse; but she was pushed forward very rapidly, and it was after she had gone to Wiseasset, ready to load, that the plaintiffs for the first time gave notice that their ship would be ready in six days more. It was not unreasonable to load the Cheesborough first, in"this state of things.

This disposes of the claim for demurrage, considered as an extension of the freight. A question which has given me some difficulty is,whether, in the peculiar circumstances of this indefinite contract, the plaintiffs had a right to require the defendants to answer their repeated inquiries as to the order of time in which they would load the ship. If it is a question of courtesy, the law cannot deal with it. If one of right, the increased expense, slight though it is, of keeping the ship at Wicasset rather than at Bath, consisting of the wages of master, mate and cook, may fairly be charged to the defendants. Upon reflection, I think the plaintiffs were bound to notify the defendants of their readiness to send the ship to Wicasset, and were entitled to be told, in answer to their demand, when the defendants expected to be ready on their part. If the answer had been that the Cheesborough would be loaded first, it is very probable that the plaintiffs would have acquiesced, and have taken their measures to reach Wicasset some days later than the seventeenth of August. It seems to me, therefore, reasonable and just that the expenses which I have referred to should be paid by the defendants.

Judgment for the plaintiffs for $40 and costs.