260
FEDERAL REPORTER.
THE WANDERER.1 SMITH, Owner of Norwegian Bark Wanderer, fHATE Co. t1.
ASHLEY PHOS-
(Di8trict (Jourt. E. D. South (Jarolina. December 10, 1886.) DEMURRAGE-BILL OF LADING-EVIDENCE-AMBIGUOUS WORDS-ADMISSION OF PRIOR CONVERSATIONS TO ExPLAIN. .
Libelant's vessel was, while at sea. let by charter·party. By its terms, the vessel, after discharging at A. the cargo then laden, was to proceed to B., there obtain a new cargo, and carry the same to C. The vessel was to pay the cost of cargo, and 15 lay days were stipulated for in which to load and discharge. In unloading at A., and in loading at B., 13 of these 15 days were consumed. Under. these circumstances,. it was proposed by the shIppers of the new cargo, who were the same firm as the original charterers, that three instead of two workin.lt days should be allowed for discharging, and that in consideration thereof the ship should be relieved from its obliga. tion to discharge cargo at its own cost, and that the burden should be assumed by the merchant; the vessel's crew, however, assisting therewith. This modification of the contract was in parol. Bills of lading were subsequently made out and signed. The body of the bills of lading contains the words: "All other conditions as per charter-party of August 1, 1886." Upon the margin of the bill there was contained the following clause: "Three working days . are left for discharging." At the bottom of the bill there was written these words: "The cargo to be discharged for account of the merchant within three working days, crew to assist, if more time used, demurrage to be paid as per charter-party." Held, that the written words upon a printed document give rise to an ambiguity which authorizes the admission of the parol agreement, and that, in the light of this testimony, the meaning and use of the words are explained, and that the consignee, to whose order the bills of lading had been assigned, must pay the cost of diseharging the cargo.
In Admiralty. Libel in personam tor freight. A. G. Magrath, for libelant. J. N. Nathans, for respondent. SIMONTON, J. The libelant claims $246.56 freight of a cargd of kainit delivered to respondents, holders of a bill of lading therefor. Respondents admit the amount of freight earned, but claim to have paid the sum of $129.25 for discharging the cargo, which sum they allege should have been paid by the ship, and therefore must be deducted from the freight. They pay into court $117.31, the difference between $246.56 and $129.25. The question made is, by whom must the cost of discharging cargo be paid, the ship or the merchant? No question is made as to the reasonableness of the amount charged for discharging cargo. FINDING OF FACT.
On August I, 1885, a charter-party was made between the agent of the Wanderer and the firm of Hermann & Theilnehmer, of Stettin, whereby it was agreed that the Wanderer, then on her passage to Stralsund, should, after discharging cargo at Stralsund, load at 1 Reported
by Theodore M. Etting, Esq., of the Philadelphia bar.
THE WANDERER.
261
Stettin a cargo of manure salt, (kainit,) therewith to proceed to Charleston, South Carolina; freight, eight shillings sterling for every ton of 20 hundred-weight, English, taken on board; ·the freighter to pay all dues and duties On cargo, !tnd the ship all other charges; the cargo to be brought to and taken from along..side at merchant's risk and expense; 15 working days altogether to be allowed the merchant for loading the cargo and discharging the same. Under this charter-party, the Wanderer, having arrived at Stral· sund, and having discharged cargo, proceeded to Stettin, and was ready to receive cargo as in charter-party. When this was completed, it was found that 13 of the 15 days which were allowed for loading and discharging cargo had been consumed. Some parley took place between the parties, which will be alluded to hereafter, and bills of lading were signed by the captain in the office of the charterers. These bills of lading were filled out by some one, presumablya clerk in their office; but it does not appear either of the members of the firm, the charterers, was present at the time. The bills of lading are partly printed and partly in writing. They follow the terms of the charter-party in all but two respects. They refer to the charter-party, and confirm it. They are between Hermann & Theilnehmer, the charterers, and the captain of the Wanderer, and they are to order. They vary from the charter-party in these particulars: Upon them, in writing, is inserted the provision for freight as is stated in the charter-party, eight shillings for every intaken ton, omitting the provision that the ton should be 20 hundredweight, English, and closing with these words: "All other conditions as per charter-party of first August, 1885." On the margin are written these words and figure, "(3) three working days are left for discharging;" and at the bottom of the bills, above the signature of ter, are these words: "The cargo to be discharged for account of the merchant within three working da,ys, crew to assist, if more time used, demurrage to be paid as per charter-party." 'fhe punctuation is as in bills. The bill of lading held and produced by respondent is indorsed in blank by Hermann & Theilnehmer. I The Wanderer arrived at Charleston. The respondents claimed the cargo. The question was at once made at whose expense the cargo should be discharged. The master of the Wanderer refused to bear the expense. The respondents, protesting that he should do so, and waiving no right, employed a stevedore, had the cargo discharged, and paid the bill, $129.25. OONCLUSION OF LAW.
The contract under which this cargo was carried is to be found in the charter-party and in the bill of lading. Whatever verbal agreement or understanding preceded each of these written instruments; when they were reduced to writing they expressed the contract, and to them we must look for it.
262
REPORTER.
The charter-party the bill of lading. are between .the same parties. The bill of signed by the master of the Wanderer, is to the order.of the same firm who are the charterers. Whatever doubt tJ1ere may be in the testimony whether Hermann & Theilnehmer, or either of. them, were present when the bills of lading were made out and signed, or whether the olerkwho filled them out aoted as the agent of that firm or of the master, the firm aooepted the bills of lading; acted on them; by their indorsement, when deliverable to order, adopted and oonfirmed them. The respondents hold title, under this indorsement, of an unnegotiable ill'strument, and hold as that firm held. The oharter-party by its terms provided that the oargo was to be disoharged at the oost of and by the ship; "the freighter to pay all dues and duties on cargo, and the ship all other expenses;" "the cargo to iJe brought to and taken from along-side at merohant's risk and expense." . Was this contraot changed in any of its terms afterwards ? There can be no doubt that parties to a written instrument,-a oontraot,complete in all its parts, may afterwards, on suffioient consideration, vary its terms even by parol; that suoh parol oontraot can be set up and proved; that, unless it oome in confliot with the statute of frauds, it would be enforoed. An effort in this oase has Leen made to prove a parol contraot varying this written contract; but, as the bill of lading was prepared after the colloquium offered in evidence, and then the will of the parties wasrednced to writing, we cannqt look beyond the bill. Did the bill of lading ohange the contract of the charter-party? The first ohange, omitting the "twenty cwt. English," is unimportant. What of the other words, "the cargo to be discharged for account 0{ the merchant within three working days, crew to assist, if more time used, demurrage to be paid as per oharter-party?" If these words made a change in the charter-party, they would not be affected by the preceding words in the first alteration, "all other conditions a.s per charter-party of first August, 1885." The words we are now considering ocour in the same instrument, are in writing and not print. Theyooour in the latter part of the instrument. It would seem that the parties to this bill of lading realized that some change may have been made by it in the terms of the oharter-party, for. they expressly eXClude the idea that the demurrage provided in the was changed: "If more time be used, demurrage to be paid as per oharter-party." Now, what change was made? As we have seen, the charter-party provided that the oargo should be taken in and be disoharged in 15 and also that the expense of discharging should be working borne by the. ship; the cargo "to betaken from along-side at expense and Eisk of the merohaij.t." The bill of lading says: "The oargo to be discharged for aooount of the merohant within three working days, crew to assist." Whom? The ship? Is this not within the scope
· THE WANDERER.
263
of their employment? Then why insert it? And what place has it in a contract with a third party? The words themselves have a definite meaning. They raise a question only because of the circumstances around them, the other words connected with them, their place in the bill of lading, that they are in the bill of lading, that they are written upon a printed document. Thus an ambiguity exists which calls for explanation. Mr. Greenleaf, discussing the rule as to the admissibility of parol evidence upon the SUbject-matter of written instruments, says: "Where the agreement in writing is expressed in short and incom. what is per 86 plete terms, parol evidence is admissible unintelligible, such explanation not being inconsistent with the writSection 282. So, again, section 288a: "Previous conten .between the parties may be shown, when that, becomes important,. to show in what sense subsequent writings passing between them were understood." (Redfield's Ed.) . . Applying this rule, and admitting this testimony, it appears that, while the ship was at Stettin, the 15 days allowed in the. charterparty for Ipading and discharging cargo had almost expired; that in fact but two days remained. 'This exposed the charterer to demurrage at a rate of about eight pounds per day. In this condition of things it was pro.posed that three working days should at all events be allowed for discharging cargo; that, in consideration of this indulgence, the ship should be relieved from its obligation to deliver cargo. entirely at its own cost, but that the crew should assist in this discharge,-the burden. however, being assumed by the merchant. In order to carry out this, these words were added to the bill of lading, -words inconsistent with the. charter-party, and calling for explanation. In the light of this testimony, the meaning and use of the words are explained. It is ordered and decreed that the respondent pay to the libelant the sum of $246.56, and costs of this suit, and that the amount paid by them into court be credited on this sum.
264
THE SARAH E. KENNEDy.1 'MCCARTHY and others v. THE SARAH E. KENNEDY. (District Oourt, D. New Jersey. November 10, 1886.)
1.
SEAMEN-WHO ARE-WAGES-LIEN-LABORERS CLAIMING AS MARINERS.
While there exists an undoubted 'tendency to extend to all persons, when necessarily Ilnd properly employed as co-laborers on a vessel for the purposes of the voyage. the privilege of marin'ers, and while, subject to this qualification, the rule is independent of sex, character, or profession, it would be inequitable and unjust to extend the rule, by implication, to laboring men hired by 'the freighter, and not l-y the vessel, whose contract was solely with the former, and to whom the la;ter was a stranger, and whose only material con· nection with the vessel was that they were transported in her as passengers to the port of destination for the purpose of excavating cargo. The circum· stance of their having, during the passage, of their own motion, rendered occasionally slight and immaterial assistll.nce in working ship, cannot be used as a pretext when frOID the evidence it appears that the vessel was provided ,with a fUll complement of officers and men.
2.' SAME:-'-PLEADINGll AND PROOFS-VARIANCE.
While; from the evidence, it, is possible that the libelants might, perhaps, have had a claim a,s salvors or lighter-men, it is unnecessary, under the plead· . ings, to, consider the question. The libelants, having claimed as mariners, must reco'Ver, if at all, in that capacity.
In Admiralty. Libel in rem by laborers claiming a lien upon the Tessel for the payment of their wages. John Grijfin, Jr., for libelants. Owen rf Gray, for claimants. WALES, J. The libelants, 13 in number, sue for seaman's wages, and their libels have been consolidated. 'l'heir services are alleged to have been rendered on board the brig Sarah E. Kennedy. The brig belonged to Somers Point, New Jersey; and while lying at the port of Baltimore, on the seventeenth of July, 1885, was chartered by Daniel Walters, her ml1ster and agent for owners, to Charles Smedley for a voyage from the last-named port to Arenas Key, a small island in the Gulf of Mexico, and back to Hamnton roads for orders not east of New York. By the terms of the charter-party, Smedley stipulated to provide and furnish to the vessel a full and complete cargo, under deck, of guano in 'bulk for the homeward voyage, to carry out men and materials, to gather cargo, and bring men back, to furnish a steward, provisions, take entire care of the men, and to load materials, free of expense to the vessel. He was to pay the master or agent, for the use of the vessel during the voyage, at the rate of four dollars per gross ton for each ton delivered, and deliver the guano along-side at Arenas Key at his own expense. Twenty-five days were allowed for loading and discharge; and for each day's detention by default of the charterer, he was to pay $48. Performance of the con· 1 Reported