The Donald

• Decision Date: 16 April 1902
• Citation: 115 F. 744
• Parties: THE DONALD.
• Court: U.S. Court of Appeals — Fourth Circuit

115 F. 744

THE DONALD.

United States District Court, E.D. Virginia.

April 16, 1902

Hughes & Little, for libelants.

Whitehurst & Hughes, for the Donald.

WADDILL District Judge.

The libel in this case is to recover damages growing out of a breach of contract on the part of the owners of the steamship Donald while said ship was on a voyage from Jamaica to Baltimore; libelants' claim being that the Donald was chartered to bring a cargo of bananas from Jamaica to Baltimore, and that subsequently, and while the ship was en route, its destination was changed, by agreement with the owners, to Norfolk, instead of to Baltimore, and of which change the ship, pursuant to understanding, was duly advised at the Virginia capes, but failed, by direction of the owner to comply therewith, and proceeded to Baltimore, greatly to libelants' damage.

The owners of the Donald admit having chartered the ship for a continuous voyage from Jamaica to Baltimore, at an agreed price of $1,250 (being the amount that would become due them for the use of the ship during the period for which it was to be used by the Norfolk & West India Fruit & Steamship Company, the holders of a time charter for the ship), but insist that the contract for the voyage had become inoperative because of the failure of the libelants to pay the $1,250 as contemplated; and they deny that any contract was entered into to change the destination of the ship from Baltimore to Norfolk; and, by an amended answer to the libel the further defense is interposed that at the time of making the alleged contract to change the destination of the ship it was under a time charter to the Norfolk & West India Fruit & Steamship Company, and that without the consent of said company, the contemplated change could not have been made, and, if made, it was the mere personal undertaking of John A. Donald, with whom it is claimed the contract was made, and that the ship is in no way liable.

These several questions will be considered by the court in the order named.

First. The contract to charter the ship having been confessedly entered into for a particular voyage, at the agreed price of $1,250, was the libelants' conduct, in reference to the payment of that sum, such as should cause a forfeiture thereof? Confessedly not. The amount due as of April 11th by the time charterers, for the period to be covered by the voyage, was $1,250. The telegrams by which the contract was made with the libelants provided for an assumption by the libelants of this sum; and while that amount may have been due in advance, under the terms of the time charter, by the Norfolk & West India Fruit & Steamship Company, it does not follow necessarily that the libelants were to comply with those terms; and while it does seem that the respondent treated the amount as in default, in a letter written libelants, nevertheless, in its further dealings with them, it asserted no such claim; and as late as April 19th, when the ship was en route to this country, it contracted with the libelants for a return voyage; and from the entire dealing it is manifest that it was not the then purpose of respondent to claim any forfeiture or demand immediate payment. Doubtless, had this been done, the request would have been complied with; but it by no means follows from the contract that the money was actually due until the end of the voyage, and the amount was promptly tendered upon the arrival of the ship in port at Baltimore.

Second. Was there a contract for the change of destination of the ship from Baltimore to Norfolk? This question can only be determined upon a consideration of all the evidence, and the facts and circumstances surrounding the particular transaction. The two contracting parties,...