Shaw v. Hart

21 F. Cas. 1192, 1 Sprague 567

• Court: District Court, D. Massachusetts
• Decided: July 15, 1859
• Status: Published

Opinion

SPRAGUE, District Judge.

The respondent insists that the contract was entire, and that no part of the freight is earned, unless there was a full performance. This cannot be maintained, if full performance was prevented by the default of the respondent himself. This brings us to the inquiry, whether the respondent has performed his guaranty, as to the depth of water, according to its true intent and purpose.

It appears that this small river, in North ■Carolina, was little known in commerce, being rarely resorted to; that the libellant had never been there, and took this guaranty, because of his ignorance of the depth of water. He knew that he was to go some distance up the river, to a place of loading, and stipulated that there should be eight feet of water at that place, which would have enabled him to take on board a full cargo. 1 cannot doubt that he believed that, if the water was sufficient for that purpose, at the point farthest up the river, it would be deep enough below, and the respondent must have believed that his guaranty was so understood; for why should the master have required a guaranty that there should be sufficient water to take his cargo on board, if, when on board, it could not reach the sea, but must be in part, at least, unladen, and put into lighters or rafts, conveyed a considerable distance, and then reladen. It is true, that the guaranty was kept according to the letter; there were eight feet of water at the place. of loading, and even more, for there seems to have been a hole just at that place, twenty feet in depth, while below, the water was not more than seven feet deep. But the guaranty was not kept according to its real intent and object. The master, then, was not bound to do more than to take on board, at the place of loading, as much of the timber as could be conveyed to the sea; and if he had done so, and delivered it to the respondent, at Wood’s Hole, and Boston, he would have been entitled to his whole freight. But he consented, for the benefit of the respondent, to do more, and attempted to tow the raft down the river, for the purpose of taking it on board at Harteras Inlet, and it was lost, by the violence of the winds and waves, in the attempt. •

I do not think that either he or his owners are responsible for this loss. Hinds was the sole agent of the respondent; the extent of his agency is, indeed, in controversy, but the evidence shows that he was employed to procure the timber, convey it to the river and to the vessel, for the purpose of being laden on board of her. There was no limitation of his authority, as to the place to which he was to convey the timber, for the purpose of having it taken on board of the vessel. If, therefore, when it was found that it could not be carried down the river by the vessel, Hinds had, without the aid ^qf the master, • rafted this lumber to a place where it could be taken on board, and thence transported, it would have been within the scope of his agency; and it was no less so, if he caused the master of the vessel to do it in his stead. It was done wholly for the benefit of the respondent.

I am satisfied that the raft was properly made, under the superintendence of Hinds, and that the master made every reasonable exertion for its preservation.

Decree for the $1000 stipulated in the charter-party and costs.