The Gazelle

• Decision Date: 12 April 1882
• Citation: 11 F. 429
• Parties: THE GAZELLE. (Two Cases.)
• Court: U.S. Court of Appeals — Fourth Circuit

11 F. 429

THE GAZELLE. (Two Cases.)

United States District Court, D. Maryland.

April 12, 1882

A Stirling, Jr., for owners of the ship. S. T. Wallis and H. C Kennard, for owners of cargo.

MORRIS D. J.

On June 16, 1881, the Norwegian bark Gazelle, 571 tons, being then in the port of Baltimore, was chartered by her master, under the usual grain and petroleum charter used in the Atlantic ports of the United States, to Messrs. Meisner, Ackerman & Co., of New York, for a voyage from the port of Baltimore to 'a safe, direct Norwegian or Danish port, as ordered on signing bills of lading, or as near thereunto as she can safely get and always lay and discharge afloat. ' The charterers agreed to furnish a full cargo of refined petroleum in customary barrels, and to pay freight at the rate of three shillings three pence per barrel. The lay days in Baltimore were to expire July 6th, and for discharging at port of discharge customary dispatch. Demurrage to be at the rate of 11 pounds sterling per day. The cargo to be received and delivered along-side the vessel within reach of her tackles. Lighterage, if any, always to be at the risk and expense of the cargo. The cargo, consisting of 3,131 barrels of refined petroleum, was put on board by the charterers, and on July 6th they tendered to the master of the Gazelle bills of lading, ordering the vessel to the port of Aalborg, on the eastern coast of Denmark. The master refused to sign the bills of lading, except with protest as to the port noted on them, upon the ground that Aalborg was a port into which, on account of shallow water on the bar, no vessel of the tonnage of the Gazelle could enter, even in ballast, and because, as he alleged, there was no anchorage near the port where he could, with safety, lay at anchor and discharge. He did say, after some discussion, that he would sign bills of lading containing the words 'or as near thereunto as the vessel can safely get, and always lay and discharge afloat;' but subsequently, upon the charterers assenting to this clause being inserted in the bills of lading, he refused, saying, in effect, that as he knew the fact to be that there was no place near Aalborg where his vessel could safely lay and discharge, and as he knew beforehand that he would have to go to the nearest safe port, he would not sign any bills of lading which might, in any way, commit him to anything else. Neither party being willing to yield, the master libelled the cargo for demurrage and damages, and the charterers have libelled the ship for breach of the charter-party.

The charterers contend, firstly, that by the literal meaning of the language of the charter-party, as well as by the meaning which established usage and custom has uniformly given to it, the ship may, under it, be ordered to any safe commercial port within the range described in the charter-party, whether she can get into it or not, provided there is an anchorage near the port customarily used in connection with it, and where it is reasonably safe for the ship to lay and discharge; and they claim that there is such an anchorage used in connection with the port of Aalborg, in the Kattegat, off the bar at the entrance of the Limfiord. In the second place, they claim also that in Baltimore, New York, and other Atlantic ports of the United States, by the established usage and custom of the trade with respect to similarly-worded charters, the contract is understood to be that if the port to which the ship is ordered is a port within the range described in the charter, and one where foreign commerce is carried on, the master, upon being ordered, is obliged to sign the bills of lading and sail for it; that if the master had intended to refuse to go to that port, the custom and usage require that he should have excluded and excepted it from the range of ports described in the charter, and, not having excepted it, he is obliged to sign the bills of lading and sail for it; that if, arriving off the port, he cannot enter it by reason of a permanent obstacle, and finds that he cannot safely lay at the customary anchorage and discharge, then he may make protest and go to the nearest port at which he can safely discharge.

As to this latter custom which the charterers have attempted to set up, I do not find that the proof adduced established a general acquiescence in respect to it. It is only quite recently that the questions have arisen which would give rise to its operation; and while it is shown that shippers and charterers have insisted in controversies with ship-masters that such was the contract and custom, and that ship-masters have generally, with some grumbling and hesitation, yielded and signed the bills of lading and set sail for the port objected to, it has not been shown that in any such case the port or anchorage objected to was in fact unsafe, nor that there was any general acquiescence by the owners or masters of ships in such a usage, or that they have accepted such a construction of the charter.

Moreover, I do not think that such a usage, if proved, and if admissible under this charter and otherwise unobjectionable, could be sustained as reasonable. If it were the fact that the ship could not, even in ballast, enter the port and remain there always afloat, and that there was no anchorage near the port where she could safely lay and discharge, and these facts were known to the master, and he was aware that he would from necessity have to go to another port to discharge, a custom which would compel him to sign bills of lading professing that he intended to deliver the cargo at such impossible port, 'or as near thereunto as he could safely get,' etc., and then make a pretence of an effort to go there, might very well suit the merchant who had purchased the cargo and chartered the ship on a foreign order, and was only interested to get the ship cleared and clean bills of lading into his hands, but it would be compelling the master to do a senseless act, calculated to mislead every one dealing with the bills of lading, and likely to give rise to expense, loss, and litigation.

I think there could be no such lawful custom. On the contrary, if the facts in any case be as above stated, and the master knows the facts, then I take it to be his plain duty to refuse to sign the bills of lading unless he chooses to do so with protest as to the port noted on them. It is the peculiar business and duty of the ship-master to know what ports his vessel can enter, and what anchorages are safe, and signing the bills of lading without objection might result in committing him to the acceptance of the port as safe. The Maggie Moore, 8 F....