Munson S.S. Line v. Miramar S.S. Co.

• Decision Date: 15 December 1908
• Docket Number: 102.
• Citation: 166 F. 722
• Parties: MUNSON S. S. LINE v. MIRAMAR S.S. CO., Limited.
• Court: U.S. Court of Appeals — Second Circuit

166 F. 722

MUNSON S. S. LINE v. MIRAMAR S.S. CO., Limited.

No. 102.

United States Court of Appeals, Second Circuit.

December 15, 1908

J Parker Kirlin and Charles R. Hickox, for appellant.

Wheeler Cortis & Haight (Charles S. Haight and John W. Griffin, of counsel), for appellee.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD Circuit Judge.

October 3, 1902, a charter party was executed at New York for the steamship Miramar for a term of six months from delivery with an option to the charterers for a further period of six calendar months. The charter party contained the following clause:

'(21) That as the steamer may be from time to time employed in tropical waters during the term of this charter, steamer is to be docked, bottom cleaned and painted whenever charterers and master think necessary, but at least once in every six months, and payment of the hire to be suspended until she is again in proper state for the service.'

January 28, 1903, the steamship was delivered, and in July the charterer, the Munson Steamship Line, while she was discharging cargo, notified the owner that it would be required to dock her upon completion of the discharge, which the owner refused to do. On July 11th, when the discharge was completed, the vessel was again tendered for docking, with the same result. July 14th, after nearly three days of futile negotiation, during which the vessel lay idle, the charterer, without prejudice to its claim against the vessel and owner, sent her on another voyage. Subsequently the charterer, having paid the charter hire in advance, began this action to recover, among other things, the proportion of charter hire paid by it during this delay.

The charter is filled in on a blank printed form of time charter applying to voyages in various waters, tropical and not tropical, and this particular clause is apparently intended for voyages of a longer period than six months involving tropical waters. In case of voyages not involving tropical waters or for a term of less than six months the clause would probably be stricken out as inapplicable. The language as to docking is absolute, requiring at least one docking every six months, whether it is needed or not (The Falls of Keltie v. U.S. & Australasia S.S. Co. (D.C.) 108 F. 416), and is entirely consistent with such a docking once every six months during the term of the charter. The charterer, however, offered proof to the effect that this was a well-known clause, under which it was the practice to calculate the first period of six months for docking from the last docking of the vessel, whether it occurred during the term of the charter or before it. The agents of the respondent in this port admitted the practice, and the respondent, which is a corporation of Great Britain, has neither taken proof to the contrary nor denied that it had knowledge of the usage. Under these circumstances we feel compelled to hold that the parties contracted with reference to this usage and made the same a part of the charter party. As the last docking of the Miramar before her delivery to the charterer was December 23, 1902, the charterer was clearly within its rights in demanding a docking July 11, 1903.

It appears that the vessel's bottom needed neither painting nor cleaning, because she made her best time in her last voyage under the...