WATTS V. CAMORS

• Decision Date: 16 November 1885
• Citation: 115 U. S. 353
• Court: U.S. Supreme Court

Watts v. Camors

Argued October 29, 1885

Decided November 16, 1885

115 U.S. 353

APPEALS FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF LOUISIANA

Syllabus

In a charter party which describes the ship by name and as "of the burthen of 1,100 tons or thereabouts, registered measurement" and by which the owner agrees to receive on board, and the charterer engages to provide "a full and complete cargo, say about 11,500 quarters of wheat in bulk," the statement of her registered tonnage is not a warranty or condition precedent, and if her actual carrying capacity is about 11,500 quarters of wheat, the charterer is bound to accept her although her registered measurement (unknown to both parties at the time of entering into the contract) is 1,203 tons.

The clause in a charter party by which the parties mutually bind themselves, the ship and freight, and the merchandise to be laden on board, "in the penal sum of estimated amount of freight," to the performance of all and every of their agreements is not a stipulation for liquidated damages, but a penalty to secure the payment of the amount of damage that either party may actually suffer from any breach of the contract, and is to be so treated in a court of admiralty of the United States, whatever may be the rule in the courts of the particular state in which the contract is made and the court of admiralty sits.

Under a charter party which allowed fifteen lay days for loading after the ship was ready to receive cargo, the owner tendered her to the charterers, they immediately refused to accept her, and thirty-six days afterwards he obtained another cargo, but negotiations were pending between the parties for half of that time, and the owner sustained substantial damage in a certain amount by the failure of the charterers to comply with their contract. The circuit court found these facts and entered a decree against the charterers for that amount. Held no error in law for which the charterers could have the decree reversed in this Court.

This was a libel in admiralty by a citizen of London, in the Kingdom of Great Britain, owner of the steamship Highbury, against two citizens of New Orleans, in the State of Louisiana, upon a charter party the terms of which were as follows:

"This charter party, made and concluded upon in the City of New Orleans, La. the 7th day of August, 1879, between A.

Page 115 U. S. 354

B. French & Co., agents for the owners of steamship Highbury, of the burden of 1,100 tons or thereabouts, registered measurement, now due here between 10th and 20th of September, of the first part, and J. B. Camors & Co., of the second part, witnesseth that the said party of the first part agrees in the freightening and chartering of the whole of the said vessel (with the exception of the cabin and necessary room for the crew and storage of provisions, sails, and cables) unto said party of the second part for a voyage from New Orleans to Havre, St. Nazaire, Antwerp, Bordeaux, or Bremen, orders on signing bills of lading, on the terms following:"

"The said vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board during the aforesaid voyage the merchandise hereinafter mentioned."

"The said party of the second part doth engage to provide and furnish to the said vessel a full and complete cargo, say about 11,500 quarters of wheat in bulk, and pay to the said party of the first part, or agent, for the use of the said vessel during the voyage aforesaid, seven shillings and six pence per quarter of 480 pounds weight delivered in full, payable in cash on right delivery of the cargo."

"It is agreed that the lay days for loading and discharging shall be as follows (if not sooner dispatched): commencing from the time the vessel is ready to receive or discharge cargo, fifteen running days (Sundays excepted) for loading and discharging, lay days to commence when the captain reports the vessel is ready for cargo, and that for each and every day's detention by default of said party of the second part or agent, fifty pounds sterling per day, day by day, shall be paid by said party of the second part or agent to the said party of the first part or agent."

"The cargo or cargoes to be received and delivered within the fifteen days above specified, the dangers of the sea and navigation of every nature and kind always mutually excepted."

"To the true and faithful performance of all and every of the foregoing agreements we, the said parties, do hereby bind ourselves, our heirs, executors, administrators, and assigns, and also the said vessel, freight, tackle, and appurtenances, and the

Page 115 U. S. 355

merchandise to be laden on board, each to the other, in the penal sum of estimated amount of freight."

The district court dismissed the libel, and the libellant appealed to the circuit court, which found the following facts:

The charter party was executed at New Orleans on August 7, 1879, by the libellant, through his agents, A. B. French & Co., and by the respondents. The libellant complied in all things with his contract. The Highbury arrived at the port of New Orleans on or before September 11. On that day, she being in that port and ready to receive cargo, her master notified that fact to the respondents, tendered her to them, and demanded of them a full cargo of wheat in bulk according to the terms of the charter party. On the next day, the respondents in writing refused to accept the ship or to furnish the cargo for the reason that her tonnage was greater than that expressed in the charter party. Thereafter, during the lay days, various negotiations were pending between the parties, until September 30, when the master caused public protest to be made before a notary and witnesses of the respondents' refusal. On October 19, the master obtained at the same port a full cargo of cotton and oil-cake, the freight of which exceeded in value by 2.10 that of the cargo of wheat which the respondents had contracted to furnish.

The actual tonnage of the Highbury was 1,203 tons, registered measurement. Her actual carrying capacity for grain was about 11,500 quarters of wheat, depending upon the length of voyage between coaling stations. The estimated amount of freight, the penalty stipulated in the charter party, was ,872.50.

At the date of the charter party, the Highbury was a new ship, and neither of the contracting parties in New Orleans knew her exact registered measurement or tonnage or carrying capacity. All the negotiations between them preliminary to the contract were with reference to her carrying capacity, which, under the custom among merchants and shippers of grain, might run not exceeding ten percent over or under the cargo stipulated for.

By reason of the respondents' failure to accept the ship,

Page 115 U. S. 356

furnish a cargo, and comply with their contract, the libellant suffered damages to the amount of ,693.15 (consisting of 1.15 for expenses incurred in fitting up the Highbury to receive a cargo of wheat, and ,082 for the delay, after the expiration of the fifteen lay days, of twenty-one days at the rate of ?50 a day, in obtaining and loading another cargo), with interest from the date of the libel.

The circuit court stated as conclusions of law that the libel should be maintained, and that the libellant recover from the respondents the sum of ,693.15, with interest and costs, and entered a decree accordingly, and each party appealed to this Court. The opinion of the circuit court upon the merits is reported in 10 F. 145.

Page 115 U. S. 359

MR. JUSTICE GRAY delivered the opinion of the Court. He stated the facts in the language reported above, and continued:

In this case, as brought before us by the appeal and the cross-appeal, three questions have been argued which may naturally and conveniently be considered in the following order:

"1st. Is the statement of the registered tonnage of the Highbury in the charter party a warranty or condition precedent?"

"2d. If it is not, is the owner of the ship entitled to recover the estimated amount of freight -- that is to say, the sum of ,872.50, as liquidated damages?"

"3d. If both these questions are answered in the negative, have the charterers shown any error in law in the amount of damages for which a decree was rendered against them in the circuit court?"

1. In the charter party the ship is described as the "steamship Highbury, of the burden of 1,100 tons or thereabouts, registered measurement," and the owner agrees to receive on board, and the charterer engages to provide, "a full and complete cargo, say about 11,500 quarters of wheat in bulk." In fact, her registered tonnage was 1,203 tons, a little more than nine percent above that stated in the charter, but this was not known to either party at the time of entering into the contract, and her actual carrying capacity corresponded to the cargo which the charterers engaged to furnish and the owner agreed to receive on board.

Page 115 U. S. 360

The statement in the charter party concerning the registered tonnage of the ship clearly does not constitute a warranty or condition precedent that she is of 1,100 tons registered measurement. The intention and the agreement of the parties, as apparent upon the face of their written contract, were that the steamship Highbury should receive and carry a full and complete cargo of about 11,500 quarters of wheat in bulk. There being no willful or fraudulent misrepresentation, the description "of the burden of 1,100 tons, or thereabouts, registered...