Ardan S.S. Co. v. Theband

• Decision Date: 29 May 1888
• Citation: 35 F. 620
• Parties: ARDAN S.S. CO., Limited, v. THEBAND et al. [1]
• Court: U.S. District Court — Southern District of New York

35 F. 620

ARDAN S.S. CO., Limited, v. THEBAND et al. ^[1]

United States District Court, S.D. New York.

May 29, 1888

Whitehead, Parker & Dexter, for libelant.

Wing Shoudy & Putnam, for respondents.

BROWN J.

In November, 1887, the respondents, by written charter, agreed to furnish the British steam-ship Ardanach a full cargo of hemp in bales from Progresso, Mexico, to New York. On the 23d or 24th of November a cargo was accordingly shipped at Progresso, a portion of which was to be delivered to the respondents. A bill of lading therefor was signed by the master, which reserved 'liberty to call at any port or ports for whatever purpose, to sail with or without pilots and to tow and assist vessels in all situations. ' The charter did not contain any such reservation.

After loading, the steamer proceeded in a south-westerly direction to Celestuns, some 40 miles directly away from her course to New York, in order to take in tow a disabled vessel, which she towed thence to Key West. The ordinary passage from Progresso to New York would be about seven or eight days. In consequence of going to Celestuns, and of the detention caused by the towage, the voyage occupied 14 days, which is not unreasonable, allowing for the towage. She arrived safely in New York; but the respondents, under the terms of their insurance, were compelled to pay an extra premium by reason of the detention caused by the towage, amounting to $400; and the interest on the invoice during the delay was $72.22. The respondents paid the freight, less these amounts, which they claimed were an offset. This libel was filed to recover the balance of freight alleged to be due.

It has been repeatedly held that, as between the parties to a written charter, the charter controls the bill of lading where there is any difference. Pars. Shipp & Adm. 286; The Chadwicke, 29 F. 521, and cases there cited; Leduc v. Ward, 20 Q.B.Div. 475, 479. As this charter contains no such provision as that in the bill of lading, on which alone the libelant relies for justification in departing from the ordinary course of the voyage, it is doubtful whether that clause has any force as against the respondents. It imposes on them additional risks, which the charter did not impose. But the master had no authority to impose any new terms or conditions of the transportation which the charter did not contain; and the mere issuing of a bill of lading upon loading a charterer's goods is not treated, as between the parties, as evidence of any new contract, or as so intended; but as designated only as a memorandum of a shipment under the charter. Aside, however, from the foregoing consideration, the scope of clauses in bills of lading like that in the present case has been repeatedly the subject of adjudication since the time of Lord MANSFIELD. In Gairdner v. Senhouse, 3 Taunt. 16, 22, liberty was reserved to touch and stay at any port or ports whatever, and it was held that such language must be confined to ports in the course of the voyage specified. The same was decided in Solly v. Whitmore, 5 Barn. & A. 45,...