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ment of the defendants was governed by its requirements on the part of the
plaintiffs.*''^'

§ 4253. Knowledge of Course of Trade. — The master of a vessel must be
held to have made his contract with a full knowledge of the course of trade, and
be governed by it."' In construing a contract for the carriage of goods by steamer,
the usual course of business in such transportation must be considered.*"'^

§§ 4254-4255. Aids to Construction— § 4254. Admissibility of Pa-
rol Evidence. — The general rule as to the admissibility of parol evidence to
explain, contradict or vary the terms of a written contract apply to charter
parties. '■•'^ The contract if unconditional and unambiguous can not be de-
stroyed by parol evidence."" Hence evidence of an oral agreement made at the
time the contract was made, to vary and contradict it, is incompetent."^ ^ It is
true though that the contract may be read in the light of surrounding circum-
stances for the purpose of arriving at the meaning and intent of the writing. It
is as an aid to interpretation that the surrounding circumstances may be looked
to but never for the purpose of adding a new term, or contradicting or varying
the writing.'''^ And parol evidence is admissible to show that the contract never
went into effect and hence that there was no contract at all."^ But a contract by



66. Railroad Co. v. Lindsay (U. S.), 4
Wall. 650, 18 L. Ed. 328.

67. The Convoy's Wheat (U. S.), 3
Wall. 225, 18 L. Ed. 194.

68. Usual course of business considered.
• — Blitz V. Union Steamboat Co., 51 Mich.
558, 17 N. W. 55.

69. Parol evidence.— The John H. Pear-
son, 121 U. S. 409, 30 L. Ed. 979. 7 S.
Ct. 1008; The E. A. Packer, 140 U. S. 360.
35 L. Ed. 453, 11 S. Ct. 794.

Meaning of "northern passage" may be
shown by parol. The E. A. Packer, 140
U. S. 360, 35 L. Ed. 453, 11 S. Ct. 794.

70. Morris v. Chesapeake, etc.. Steam-
ship Co., 125 Fed. 62; Bast v. Bank, 101
U. S. 93, 25 L. Ed. 794; DeWitt v. Berry,
134 U. S. 306, 10 S. Ct. 536, 33 L. Ed. 896;
Seitz V. Brewers', etc., Mach. Co., 141 U.
S. 510, 12 S. Ct. 46, 35 L. Ed. 837; Van
Winkle v. Crowell, 146 U. S. 42, 13 S. Ct.
18, 36 L. Ed. 880; Corse v. Peck, 102 N.
Y. 513, 7 N. E. 810; Thomas v. Scutt, 127
N. Y. 133, 27 N. E. 961.

71. Oral agreement incompetent to vary
contract.— Dennis v. Slyfield, 54 C. C. A.
520, 117 I'cd. 474; Willard v. Tayloe (U.
S.), 8 Wall. 557, 19 L. Ed. 501; Forsythe
V. Kimball, 91 U. S. 291. 23 L. Ed. 352;
Maryland v. Railroad Co. (U. S.), 22
Wall. 105, 22 L. Ed. 713; Thompson v. In-
surance Co., 104 U. S. 252, 26 L. Ed. 765;
Union Stock Yards, etc., Co. v. Western
Land, etc., Co., 7 C. C. A. 660, 59 Fed. 49.

A contract reciting that the parties of
the second part "were desirous to ship
by vessel certain lots of hardwood lum-
ber," and by which the party of the first
part agreed to carry on his vessels "any
and all of this lumber as may be desired"
by the parties of the second part, can not



be construed as a proposition by the first
party which might become a binding con-
tract on its subsequent acceptance by the
second parties, since it was executed by
both parties, and purported to be a com-
pleted agreement, the terms of which
would be varied by a subsequent agree-
ment by the second parties to ship all
their lumber by the vessels of the party
of the first part. Dennis v. Slyfield, 117
Fed. 474, 54 C. C. A. 520.

72. Light of surrounding circumstances.
— Dennis v. Slyfield, 54 C. C. A. 520, 117
Fed. 474; Railroad Co. v. Maryland (U.
S.), 20 Wall. 643, 22 L. Ed. 446; Willard
V. Tayloe (U. S.), 8 Wall. 557, 19 L. Ed.
501; Greenfield, Ev. § 277; Union Stock
Yards, etc., Co. v. Western Land, etc.,
Co., 7 C. C. A. 660, 59 Fed. 49.

In the case last cited. Judge Jenkins,
speaking for the seventh circuit court of
appeals, said: "But resort to surrounding
circumstances is not allowed for the pur-
pose of adding a new and distinct under-
taking. Maryland v. Railroad Co. (U. S.),
22 Wall. 105, 22 L. Ed. 713. The circum-
stances surrounding the making of a con-
tract is one thing. The parol negotiations
leading up to the written agreement is
another and different thing. Parol evi-
dence may be received of the existence
of an independent oral agreement, not in-
consistent with the stipulations of the
written contract, in respect to a matter
to which the writing does not speak, but
not to contradict the contract." Dennis
V. Slyfield, 54 C. C. A. 520, 117 Fed. 474.

73. To show that contract never went
into effect. — Morris v. Chesapeake, etc.,
Steamship Co., 148 Ih'iI. II, 7S C. C. A.
1 79.



§§ 4254-4258 carriers. 3872

which a steamship company agreed to furnish to a shipper space for a shipment
of cattle on each of a number of named ships saihng in different months is an
entire contract, and not a separate one for each vessel, and therefore not subject
to modification by parol evidence to except one vessel on the ground that as to
such vessel it never went into effect, because of the nonfulfillment of an unex-
pressed condition precedent."^

Contract Partly Oral.— There may' be instances in which a contract is partly
in writing and i)artly oral, and the two together constitute the contract ; so there
may be a question of fact as to whether the written agreement is or is not the en-
tire agreement."^

§ 425 5. Opinion Evidence. — See ante, "General Rules," § 4250.

§ 4256. Construction of Particular Words, Phrases, etc. — When the
word "ton" is used alone, in a contract of aft'reightment, a dead weight ton is^
meant and in foreign trade long tons of 2,240 pounds."''

§§ 4257-4260. Conditions Precedent and Independent Covenants,
Representations and Warranties— § 4257. In General.— Whether par-
ticular stipulations are to be considered conditions precedent or not, must, in all
cases, solely depend upon that intention, as it is gathered from the instrument
itself.''

Stipulation as to Vessel to Be Used.— The contract of aft"reightment
obliges the carrier, in the absence of a legal excuse, to carry the freight to the
destined port in the very vessel stipulated in the bill of lading. It is a right re-
sulting from the contract that the transportation shall be in the chosen vessel. It
is not permissible to speculate as to the reasonableness of the choice. The owner
of the freight can not be questioned as to his reasons.'^ "^

§ 4258. Stipulations as to Time and Place of Shipment. — A statement
descriptive of the subject matter, or of some material incident, such as the time
or place of shipment, is ordinarily to be regarded as a warranty, or condition pre-
cedent, upon the failure or nonperformance of which the party aggrieved may
repudiate the whole contract.''* A contract by a steamship company for the car-

74. Rule not applicable to part of entire phrases, etc. — Where a freight contract
contract. — Decree 125 Fed. G2. affirmed in engaged steamship room between New
Morris v. Chesapeake, etc., Steamship Co., York and Rio de Janeiro for "approxi-
148 Fed. 11, 78 C. C. A. 179. niately 1500/2000 tons," electrical machin-

75. Contract party oral. — Dennis v. Sly- ery and apparatus, and also contained the
field, 54 C. C. A. 520, 117 Fed. 474. schedule fixing dead weight and space

Illustrations of such cases are afforded rates at the steamer's option, the word

by the cases of Mobile, etc., R. Co. v. Ju- "ton" should be construed to mean a dead

rey, 111 U. S. 584, 4 S. Ct. 566, 28 L. Ed. weight long ton, notwithstanding an op-

527,' and Bank v. Cooper, 137 U. S. 473, tion authorizing the ship to charge freight

11 S. Ct. 160, 34 L. Ed. 759. where the at space rates. Herr v. Tweedie Trading

question was whether a bill of lading con- Co., 181 Fed. 483.

stituted the entire contract. Dennis v. 77. Lowber v. Bangs (U. S.), 2 Wall.

Slyfield, 54 C. C. A. 520, 117 Fed. 474. 728, 17 L. Ed. 768; Davison v. Von

A shipment of a number of horses from Lingen, 113 U. S. 40, 28 L. Ed. 885, 5 S.

Nome to Seattle held to have been made Ct. 346.

under a contract made by the parties 78. Effect of stipulation as to vessel to

partly by correspondence and partly by be used. — Louisville, etc.. Packet Co. v.

oral conversations, all of which must be Rogers, 20 Ind. App. 594, 49 N. E. 970.

taken into account to ascertain its terms, 79. Filley v. Pope, 115 U. S. 213. 29 L.

and, as so construed, to have required the Ed. 372, 6 S. Ct. 19; Norrington v. Wright,

shipowner to construct stalls for the 115 U. S. 188, 29 L. Ed. 366, 6 S. Ct. 12,

horses between decks, and slings for use citing Lowber v. Bangs (U. S.), 2 Wall,

in rough weather, the failure to provide 728, 17 L. Ed. 768, and Davison v. Von

which rendered the vessel liable for in- Lingen, 113 U. S. 40, 28 L. Ed. 885, 5 S.

iury to the horses during the voyage. Ct. 346.

The Olympia, 156 Fed. 252. Stipulation in charter party, that vessel

76. Construction of particular words, is "now sailed" or about to sail. — See Dav-



3873 CARRIAGE OF PROPElRTY. §§ 4258-4261

riage of cattle on certain specified vessels, "all sailing" during certain months, im-
ports a warranty that all the vessels named will sail during such months.^"

Charterers Knowing Recital to Be False. — A recital in the charter that
the vessel is at a designated place is not a warranty or contract, where the char-
terers knew certainly that the vessel was not there ; of course they were not de-
ceived or misled by the recital, which was probably part of a printed form that
attracted no attention. ^^

§ 4259. Stipulations as to Tonnage or Measurement. — Statements as
to registered tonnage or measurement, unless clearly intended as such a statement
as to the registered tonnage of a ship, is not a warranty or condition precedent. *-

§ 4260. Warranty of Seaworthiness. — A warranty in a charter party that
a vessel is seaworthy is satisfied if the vessel was accounted seaworthy when de-
livered into possession of the charters under the charter.*^ The owner is liable
for the breach of his contract, but the stipulation *of seaworthiness is not so far a
condition precedent that the hirer is not liable in such case for any of the charter
money. If he uses her, he must pay for the use to the extent to which it goes.^*

§ 4261. Cancellation, Modification and Release. — Canceling Date of
Charter Party. — Where the canceling date of the charter party was not filled
in but its insertion waived by the charterers, as the ship was in port and they had
confidence in the ability and willingness of the master to get the ship ready in
time, the charterer by waiving the insertion of such date, abandoned all claims to
insist upon the right to cancel the charter party if the vessel should not be ready to
load by a day specified so as to enable them to comply with the recjuirements in
this contract with a third party for the shipment of the cargo."*''

By Master or Agent. — A charter party can not be modified or canceled even
in a foreign port, by the master of the vessel or any agent either of the owner or
the charterer ^*'

Under Clause Limiting Liability. — A clause exempting a carrier from lia-
bility for loss or damage occasioned "by arrest or restraint of princes, rulers, or
people" in a contract of aft'reightment by a neutral to carry contraband of war,,
made when conditions of war exist and are known to both parties, must be con-
strued as intended to apply only to actual arrest or seizure and confiscation and
afifords no ground for repudiation of the contract by the carrier because of the
danger of seizure.^"

ison V, Von Lingen, 113 U. S. 40, 28 L. 32 L. Ed. 381, 9 S. Ct. 50. So held where

Ed. 885, 5 S. Ct. 346; Lowber v. Bangs the owner of the vessel guaranteed that

(U. S.), 2 Wall. 728, 17 L. Ed. 768. the vessel would carry a specified quan-

Will proceed "with all possible dis- tity but did not have her ready to load

patch." — See Lowber v. Bangs (U. S.), by a day which would enable the char-

2 Wall. 728, 17 L. Ed. 768. terers to comply with their contract with

80. Time of sailing. — -Morris v. Chesa- a third party.

peake, etc., Steamship Co., 125 Fed. 62. 86. Gracie v. Palmer (U. S.), 8 Wheat.

decree affirmed in 148 Fed. 11, 78 C. C. 605, 634, 5 L. Ed. 696.

A. 179. In Gracie v. Palmer (U. S.), 8 Wheat.

81. Lovell V. Davis, 101 U. S. 541, 25 605, 5 L. Ed. 696, the question came be-
L. Ed. 944. fore the federal supreme court, whether

82. Watts V. Camors, 115 U. S. 353, 29 the charterer and the master could, by a
L. Ed. 406, 6 S. Ct. 91; Pine River Log- contract made with a shipper who acted
ging Co. V. United States, 186 U. S. 279, in good faitli, destroy the lien of the
289, 46 L. Ed. 1164, 22 S. Ct. 920. See, owner on the goods shipped, for the
also, Brawley v. United States, 96 U. S. freight due under the charter party. It
168, 24 L. Ed. 622, 13 Ct. CI. 521; Nor- was held they could not; and the deci-
rington v. Wright, 115 U. S. 188, 29 L. sion is placed upon the ground of want
Ed. 366, 6 S. Ct. 12. of authority to do the act. Schooner

83. The Francis Wright, 105 U. S. 381, Freeman r. Buckingham (U. S.), 18 How.
26 L. Ed. 1100. is;>, I;-. I,, i'.d. 341.

84. Work V. Leathers, 97 U. S. 379, 24 87. Under cause limiting liability. —
L. Ed. 1012. Balfour, etc., Co. z\ I'ortland, etc., Stcam-

85. Culliford v. Gomila, 128 U. S. 135, ship Co., 167 Fed. 1010.



§ 4261 CARRIERS. 3874

Existence of War — Contraband. — Where the charter party has been entered
into prior to the prevalence of war conditions afifecting the port of dehvery, there
can be but Httle question that the carrier can legitimately decline to carry out the
contract. ^^ However, a citizen of a neutral may lawfully contract to carry con-
traband of war, and his undertaking will be enforced by the courts of the neutral
state. While, by international law, trade by neutrals in contraband of war with
belligerents is inhibited, and subjects the unlawful commerce to seizure and con-
demnation by a belligerent, and while neutral states recognize the right of im-
posing this restriction upon the action of its subjects, yet it has been judicially de-
termined that this law is not inconsistent with the right of neutrals to trade in
■contraband with citizens of belligerent states, and to make contracts to that end,
and to have the same enforced. s''' The conditions must, from the very nature of
things, be different where the owner, notwithstanding his discretion to refuse to
carry contraband where, in the interest of the ship and of the cargo, it would be
dangerous to do so under conditions of war subsequently arising, deliberately en-
ters into a contract to carry that class of cargo when the war conditions are ac-
tually present.^*^

Right of Shipper to Cancel — Branch of Implied Representations. — In
a contract to transport cattle, it is implied that there shall be sufficient ventilation ;
.and if there is not, so that insurance can not be procured upon the cattle, the ship-
per may refuse to ship, and recover for breach of the contract.^^ But the fact
that a single underwriter refused to insure cattle for the voyage because of al-
leged insufficiency of ventilation does not, of itself, prove a breach of contract on
the vessel's part, warranting refusal to ship the cattle. ^^

Readiness for Shipment. — Where the contract stipulates that the ship be,
in her equipment and condition, reasonably ready for a grain cargo, if the ship-
per so require, the readiness required is a reasonable readiness, and not a special
readiness to gratify particular requirements established by the shipper.^^ And
the lack of specific preparations, which are not usually required or desirable, and,
if used at all, are better put in while the cargo is being loaded, is not, in the ab-
sence of a specified notice that they are required, a defect in readiness, authoriz-
ing the canceling of the contract.^'* Obviously, a practice peculiar to the port,
requiring battening when not needed, and merely out of abundant caution, could
not, without previous notice, give ground for canceling the contract. ^^ A pro-
vision giving the shippers the right to cancel the contract for shipment of a cargo
•of grain if the ship be not ready on a given date requires a practical and sub-
stantial readiness to receive the cargo such as would insure the underwriters" in-

88. Balfour, etc., Co. v. Portland, etc., 92. Refusal of insurance by single un-
Steamship Co., 167 Fed. 1010. derwriter.— The Alvah, 77 Fed. 315, 23 C.

The case of The Styria, 101 Fed. 728, C. A. 181.

41 C. C. A. 639, and again decided on ap- 93. Disney v. Furness, etc., Co., 79 Fed.

peal in The Styria v. Morgan, 186 U. S. 810.

1, 22 S. Ct. 731, 46 L. Ed. 1027, is one ^^ j^- ^, p^j^ness, etc., Co., 79 Fed.

which upon the lacts, save that the qon- q^q

tract was entered into before war condi- ' ., . , , . , .1 ,.
tions arose, bears a strong analogy to the , Failure of the ship to have up the top
present. The case of Nobel's Explosives board of the shifting boards, where the
Co. V. Jenkins (Eng.), L. R. 1896, 2 Q. board and the slots for receiving it are
B. 326, cited by the supreme court, is also ^tted and prepared, is not a want of read-
quite analogous. '"^ss to receive grain cargo, such as

89. Balfour, etc., Co. v. Portland, etc., would authorize the cancellation of the
Steamship Co., 167 Fed. 1010. So it has contract of affreightment Nor is can-
been held bv the supreme court, in The cellation authorized by failure to have up
Santissima Trinidad (U. S.), 7 Wheat. the shifting boards m the hatch comb-
283 5 L Ed 454 ^"§^^' ^^ these, if used at all, are better

90. Balfour', etc., Co. v. Portland, etc., PH^ in when the cargo is partly loaded.
Steamship Co., 167 Fed. 1010. Disney v. Furness, etc., Co., 79 Fed. 810.

91. Branch of implied representations, 95. Disney v. Furness, etc., Co., 79
—The Alvah, 77 Fed. 315, 23 C. C. A Fed. 810.

181.



3875 CARRIAGE OF PROPERTY. §§ 4261-4262

specter's approval, and obtain his pass, and would gratify the usual and reason-
able recjuirements for avoiding injury to the commercial value of the grain.^*^

The failure of the shipowner to perform his obligation, under the charter
party to keep the vessel in proper condition and fit for use, discharges the chart-
erer or gives him the option to rescind his contract.'^"

Waiver of Right to Rescind. — A shipper who contracted with a steamship
company for the transportation from New York to London of 100 tons of hay on
each of the company's weekly steamers for a year, and who was entitled to re-
scind the contract because of the frequent failure of the company to take the re-
quired quantity which was tendered, waived such right by electing to treat the
contract as still in force, and making subsequent shipments thereunder, and could
not thereafter rescind because of such past defaults.'^'s

§§ 4262-4263. Performance, Discharge or Breach— § 4262. In
General. — If what is agreed to be done is possible and lawful, it must be done.
Difficulty or improbability of accomplishing the undertaking will not release the
parties from the obligations of the contract. It must be shown that the thing can
not by any means be affected. ^^ But where the circumstances are such that the
contract can not be carried out, and through no fault or negligence of the parties,
they are absolved from liability for the failure to perform. ^ Where the owner of
a vessel plying betw^een two ports agreed to carry freight for plaintiff during the
season ensuing, and within the time the owner offered on two or three occasions
to take freight, but plaintiff did not furnish it, the owner's refusal on one trip to
^o a few miles up the river to take on freight was not a breach of the contract,
the vessel being then deeply laden, and it not being safe and proper to make the
attempt.^

Failure to Receive All Freight for Shipment. — Where the carrier refuses
to receive all of the goods, according to the contract of affreightment, he is liable
for a breach of the contract, unless the performance of the contract has been
rendered impossible through no fault of his own or unless the terms of the con-
tract have been changed.^ A shipper of corn agreed to deliver it on board a ves-

96. Readiness contemplated. — Disney v. ant or his consignees at a particular place.
Furness, etc., Co., 79 Fed. 810. The contract provided for deductions to

97. Strong v. United States, 154 U. S. be made from the compensation for mer-
632, 24 L. Ed. 664, 14 S. Ct. 1182. chandise lost in transportation by reason

98. Waiver of right to rescind. — Bloom- of the sinking of the boats used in the
ingdale v. Wilsons, etc., Line, 105 Fed. transportation. Held that, if the condi-
384, citing McNaughter v. Cassally, Fed. tion of the navigation was such that the
Cas. No. 8911, 4 McLean 530. merchandise could not be transported,

99. The Harriman (U. S.), 9 Wall. 161, plaintiff was absolved from the obligation
19 L. Ed. 629. to transport, and defendant was absolved

Where libelant contracted to transport from the obligation to deliver the goods

a pile of lumber, which his agent had in- for transportation. White v. Toncray, 46

spected, from Cheboygan to Chicago, by Va. (5 Gratt.) 179.

a steamer and certain barges, under an 2. Refusal to go after freight — Dangers

entire contract, and carried only a pro- of the river. — Thurston z'. Foster, 11

portion of the amount, and the amount Me. 74.

carried was less than the carrying capac- 3. Failure to receive all freight for
ity of the steamer and any one of the shipment. — Libelant and respondent en-
barges owned by libelant, it was no de- tered into a verbal contract that one of
fense to libelant's breach of contract that respondent's steamers should load and
one of the l)arges was disabled by the transport a quantity of marble from Spe-
loss of a mast, and that the lumber con- zia, Italy, to New York. The marble was
sisted partly of strips and partly of delivered, as agreed, alongside the
boards, instead of being all boards. Ed- steamer, which made the voyage with
ward Hines Lumber Co. v. Chamberlain, only a part of the cargo, insisting sub-
118 Fed. 716, 55 C. C. A. 236. sequently that lil)elant's agent should

1. Parties absolved. — Plaintiff con- sign a bill of lading for the whole, de-
tracted to transport certain merchandise scribing the omitted portion as "short
for defendant, water permitting, and in- shipped," which bill the agent signed un-
.sure safe delivery of the same to defend- der protest. Held, that libelant was en-

4 Car— 49



§ 4261 CARRIERS. 3876

sel with no unreasonable delay. The captain of the vessel applied for it on a
Sunday, and, no person being ready to deliver it, would not wait till Monday,.
but went to sea without it. The shipowner was not entitled to dead freight on
the quantity not shipped, but, on the contrary, was bound to make compensation
to the other party for the loss sustained in consequence of the captain's not tak-
ing the full quantity on board.'*

Boat Other than That Stipulated.— Where a shipper of goods delivered
them to the clerk of the steamer "C," with a bill of lading filled out in which was
inserted the name of the steamer "S," belonging to the same carrier, it did not
amount to a rescission of that clause of the contract providing for carriage by
the "S." ; it not appearing that the agent to whom the goods were delivered was
not the agent of the carrier to receive goods for the "S." ^ Where a shipper of
goods delivered to the steamer "C," with a bill of lading, conditioned for the ship-
ment on the steamer "S.," belonging to the same carrier, it did not amount to a
waiver of the condition for carriage by the "S." ^

Carrying Contrary to Provision of Contract. — The owner of a line of
lake steamers can lawfully make a special contract with the shipper not to place
more than a specified number of dollars worth of goods on any one of the vessels
at one time, and having made such contract, he is bound to perform the same,
and liable for any damages incurred by the shipping through his breach of the
provision of the contract.'''

Abandonment of Vessel by Shipowner. — The justifiable abandonment of
a vessel in consequence of the damages of the seas is such a renunciation of the
contract of affreightment as entitles the cargo owners to refuse to go on with the
voyage, at least, where the master has not rejoined the ship before anyone else
has taken possession, or has not obtained the vessel and cargo from the salvors
before the cargo owners have announced their decision.^



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 144 of 214)