128 U.S. 474 (1888), The Gazelle

Citation128 U.S. 474, 9 S.Ct. 139, 32 L.Ed. 496
Party NameTHE GAZELLE. MEISSNER et al. v. BRUN.
Case DateNovember 26, 1888
CourtUnited States Supreme Court

Page 474

128 U.S. 474 (1888)

9 S.Ct. 139, 32 L.Ed. 496

THE GAZELLE.

MEISSNER et al.

v.

BRUN.

United States Supreme Court.

November 26, 1888

Appeal from the Circuit Court of the United States for the District of Maryland.

[9 S.Ct. 140] This was an appeal from a decree in admiralty on cross-libels for breaches of a charter-party of the Norwegian bark Gazelle, by which, on June 16, 1881, Herman Brun, her master, chartered her to Meissner, Ackermann & Co. for a voyage from 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,' on the terms, among others, that the charterers should furnish a full cargo of refined petroleum in barrels, and pay freight of three shillings and three pence sterling a barrel; that the vessel should be loaded by July 6th; and that demurrage of eleven pounds sterling should be allowed for each day's detention by their default. On July 11th, and August 1st, 9th, and 22d, the master filed successive libels against the cargo, setting forth the making and the principal provisions of the charter-party, and annexing a copy thereof; and further alleging that the vessel was duly loaded by July 6th, and on that day the charterers tendered to the master for signature bills of lading ordering her to the port of Aalborg, in Denmark, as the port of discharge, 'to be landed at Aalborg, or as near thereto as the vessel can safely get;' that the master refused to sign the bills of lading, for the reason that Aalborg was not a safe port, and it was impossible for a vessel to enter it with cargo, or to land her cargo at the port, or at any anchorage or landing place near it, so as always to lay and discharge afloat; and that he expressed to the charterers his willingness to perform the charter, and requested them to name a safe port, but they refused. Each of those libels claimed demurrage according to the charter, amounting in all to $2,070.20; the fourth libel claimed also $400 for the expenses of taking out most of the cargo; and each libel contained a prayer for general relief. The charterers filed answers, admitting the making of the charter-party, and the refusal of the master to sign bills of lading; alleging that the port of Aalborg is a safe port, well known to commerce, especially in the petroleum trade, and one to which vessels of deeper draught than the Gazelle are habitually dispatched under charter-parties of like terms with that in controversy; and further alleging that, by the established and uniform usage and custom of trade between Baltimore and other Atlantic ports of the United States, and ports of Norway and Denmark, the port of Aalborg is recognized as being, and understood to be, a safe, direct port of Denmark, within the terms and provisions of such a charter-party, denying that there is no safe place or anchorage outside that port where the vessel could always lay afloat and discharge her cargo, or that there had been any detention of the vessel by their default; and alleging that the entire delay and the damages, if any, resulting therefrom, were due solely to the default of the master. On August 20th, the charterers filed a cross-libel against the vessel, alleging the same matters as in their answers to the other libels, and claiming $8,000 damages for breach of the charter-party, and general relief. The master filed an answer to the cross-libel, presenting the same issues as the other libels and answers.

The district court sustained the libels of the master, and dismissed that of the charterers, and entered decrees accordingly. 11 F. 429. The charterers appealed to the circuit court, which consolidated the cases, and made the following findings of fact: 'On June 16, 1881, the bark Gazelle, a sailing vessel of 571 tons burden, then in the port of Baltimore, Md., was chartered by Herman Brun, her master, to Meissner, Ackermann & Co., of New York, for a voyage, as stated in the charter-party, '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.' Exhibit accompanying the libel is the said charter. Cargo of 3,131 barrels of refined petroleum was put on board by charterers at Baltimore, and on July 6, 1881, the charterers tendered the master 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, on the ground, as stated by him to the charterers, that Aalborg was not a safe port for a vessel of the tonnage of the Gazelle, and that no vessel of such tonnage could enter the port, even in ballast, and that there was no anchorage near the port where he could with safety lay and discharge. The charterers refused to order the vessel to any other port. Conversations and correspondence took place between the master and charterers and their agents. In all these the master insisted that he could take the cargo to the port of Aarhus, which he said was the only safe Danish port for a vessel of such tonnage as the Gazelle, but he could not discharge at Aalborg, or convey the cargo there. The charterers, on the contrary, insisted that he could and was bound to discharge at Aalborg. During this discussion between the parties, and on one day, the master said he would sign [9 S.Ct. 141] bills containing the words 'as near thereunto as the vessel can safely get, and always lay and discharge afloat;' but on the same day, upon the charterers assenting to this, he refused, saying, in effect, that as he knew the fact to be that there was no...

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  • 57 F.2d 265 (S.D.N.Y. 1931), May v. Hamburg-Amerikanische Packetfahrt Aktien-Gesellschaft
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • October 27, 1931
    ...therefore consider the point. Dupont de Nemours & Co. v. Vance (1856) 19 How. 162, 172-182, 15 L.Ed. 584; The Gazelle and Cargo (1888) 128 U.S. 474, 9 S.Ct. 139, 32 L.Ed. 496. It is difficult to see how the facts of the case may be brought within the classical definition of deviation, C......
  • 179 F. 781 (9th Cir. 1910), 1,758, The Medea
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 26, 1910
    ...of pleading and proof is no longer enforced in admiralty with the strictness observed in common-law procedure. In the Gazelle and Cargo, 128 U.S. 474, 487, 9 Sup.Ct. 139, 142 (32 L.Ed. 496), the court, referring to this rule, said: 'In the courts of admiralty of the United States, although ......
  • 140 U.S. 360 (1891), The E.a. Packer
    • United States
    • Federal Cases United States Supreme Court
    • May 11, 1891
    ...The Adriatic, 103 U.S. 730; The Connemara, 108 U.S. 352, 360, 2 S.Ct. 754; Watts v. Camors, 115 U.S. 353, 363, 6 S.Ct. 91; The Gazelle, 128 U.S. 474, 9 S.Ct. 139. In the case of The Abbotsford it was held that the only rulings which could be presented for review here by bill of exceptions w......
  • 274 F. 30 (6th Cir. 1921), 3473, Jewett, Bigelow & Brooks v. Detroit Edison Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • June 17, 1921
    ...cannot be permitted to vary or alter the express terms of these contracts that are clearly in conflict therewith. The Gazelle and Cargo, 128 U.S. 474-486, 9 Sup.Ct. 139, 32 L.Ed. 496; Jenkins S.S. Co. v. Preston, 186 F. 609-612, 108 C.C.A. 473. The shortage of cars is important only in its ......
  • Request a trial to view additional results
50 cases
  • 57 F.2d 265 (S.D.N.Y. 1931), May v. Hamburg-Amerikanische Packetfahrt Aktien-Gesellschaft
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • October 27, 1931
    ...therefore consider the point. Dupont de Nemours & Co. v. Vance (1856) 19 How. 162, 172-182, 15 L.Ed. 584; The Gazelle and Cargo (1888) 128 U.S. 474, 9 S.Ct. 139, 32 L.Ed. 496. It is difficult to see how the facts of the case may be brought within the classical definition of deviation, C......
  • 179 F. 781 (9th Cir. 1910), 1,758, The Medea
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 26, 1910
    ...of pleading and proof is no longer enforced in admiralty with the strictness observed in common-law procedure. In the Gazelle and Cargo, 128 U.S. 474, 487, 9 Sup.Ct. 139, 142 (32 L.Ed. 496), the court, referring to this rule, said: 'In the courts of admiralty of the United States, although ......
  • 140 U.S. 360 (1891), The E.a. Packer
    • United States
    • Federal Cases United States Supreme Court
    • May 11, 1891
    ...The Adriatic, 103 U.S. 730; The Connemara, 108 U.S. 352, 360, 2 S.Ct. 754; Watts v. Camors, 115 U.S. 353, 363, 6 S.Ct. 91; The Gazelle, 128 U.S. 474, 9 S.Ct. 139. In the case of The Abbotsford it was held that the only rulings which could be presented for review here by bill of exceptions w......
  • 274 F. 30 (6th Cir. 1921), 3473, Jewett, Bigelow & Brooks v. Detroit Edison Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • June 17, 1921
    ...cannot be permitted to vary or alter the express terms of these contracts that are clearly in conflict therewith. The Gazelle and Cargo, 128 U.S. 474-486, 9 Sup.Ct. 139, 32 L.Ed. 496; Jenkins S.S. Co. v. Preston, 186 F. 609-612, 108 C.C.A. 473. The shortage of cars is important only in its ......
  • Request a trial to view additional results