Archibald Gracie v. John Palmer

• Decision Date: 13 March 1823
• Citation: 5 L.Ed. 696,8 Wheat. 605,21 U.S. 605
• Parties: ARCHIBALD GRACIE and others, Plaintiffs in Error , v. JOHN PALMER and others, Defendants in Error
• Court: U.S. Supreme Court

21 U.S. 605

5 L.Ed. 696

8 Wheat. 605

ARCHIBALD GRACIE and others, Plaintiffs in Error, v. JOHN PALMER and others, Defendants in Error.

March 13, 1823

ERROR to the Circuit Court for the eastern District of Pennsylvania. This was an action of assumpsit, brought by the defendants in error against the plaintiffs in error, to recover back the sum of 10,500 dollars, paid under the circumstances stated in the following case, to be considered as a special verdict.

On the 23d of October, 1818, the defendants, being the owners of the ship America, chartered her to Hugh Chambers, by the following charterparty: 'This charter-party, indented, made, and entered upon, this 23d day of October, in the year of our Lord 1818, between Archibald Gracie, William Gracie, and Charles King, the persons constituting the copartnership or house of trade, under the firm and style of Archibald Gracie & Sons, of the city of New-York, owners of the ship or vessel called the America, of New-York, of the burden of 460 tons, or thereabouts, register admeasurement, of the first part, and Hugh Chambers, of the city of Philadelphia, merchant, of the other part, witnesseth, that the said owners have let, and the said Hugh Chambers hath taken and hired the said vessel, to freight for the voyage, upon the terms and conditions following: whereupon the said owners do covenant, promise, and agree, to and with the said charterer, by these presents, that the said vessel shall be tight, stanch, and strong, well and sufficiently fitted, manned, provided, and furnished with all things needful and necessary for such vessel, on her intended voyage, herein after mentioned, and provisioned for the term of eighteen months, and

fully and properly armed with large and small arms, and with sufficient ammunition for the same; and that she shall, on or before the 15th day of November next, be in readiness, at the port of Philadelphia, to receive and take on board, and shall there, when tendered within reach of her tackle, receive and take on board all such lawful goods and merchandise, as the said charterer may think proper to ship, not exceeding what she can reasonably store and carry, over and above her tackle, apparel, provisions, armament, and other necessaries, and the privileges herein after reserved for the master, and first and second officers, and the lading of the dollars to be shipped by the owners, as herein after mentioned; and that the said ship shall be in readiness to sail from Philadelphia aforesaid, and, on being loaded and afterwards despatched, shall and will, (wind and weather permitting,) set sail from the said port of Philadelphia, on or before the 30th day of November next, and proceed to the island of Madeira; and shall and will there make a right and true delivery of such quantities of goods and merchandise, as shall be there deliverable, loaded at Philadelphia aforesaid, to such persons as the same shall have been consigned to; and the same being so unloaded, the said ship shall and will receive and take on board all such legal goods, wares, and merchandise whatsoever, as shall be offered and tendered, within reach of her tackle, by or for account of the said Hugh Chambers, not exceeding as aforesaid. And as soon as the said ship shall be thus loaded at Madeira aforesaid,

she shall and will set sail and depart from thence, (wind and weather permitting,) and directly proceed on her voyage, and put into the port of Bombay, in the East Indies; and that she shall, at the option of the said Hugh Chambers, his agent or agents, be allowed also to put into Calcutta, and deliver her cargo, and take in returns there. And at the said ports of Bombay and Calcutta, respectively, unlade all such goods and merchandise as shall remain on board, and relade such lawful goods, wares, and merchandise, as the said charterer, his agents, factors, or assigns, shall think fit to charge and lade on board, over and above, and not exceeding as aforesaid, and the lading, for account of the said owners, in respect of the returns for the said funds, in dollars, to be shipped by them; and that the said ship shall and will, with her said return loading, (wind and weather permitting,) sail and proceed back to the said port of Philadelphia; and there deliver unto the said charterer, his executors, administrators, or assigns, the full and entire cargo laden and taken on board the said ship at Bombay, and Calcutta, aforesaid, for his account; upon the entire delivery whereof, the said intended voyage shall end and be determined, (the dangers of the seas, restraints of princes and rulers, and all other unavoidable casualties, always being excepted by these presents.) And it is hereby agreed, that the said owners shall load and ship, on board the said vessel, for the said voyage, 15,000 Spanish milled dollars, to be invested in goods and merchandise in India, in like manner

as the residue of the cargo in general, and that they shall be chargeable with freight on the returns thereof, at the rate of 50 dollars per ton; or, if the said returns shall be in goods and merchandise, usually chargeable with, or taken on, freight, by weight, that the same shall be estimated at such rate as shall be equivalent to that sum by the ton; and also, that the commission to be allowed the supercargo of the said ship, shall be a clear commission of five per centum on the amount of the investment in India. And it is further agreed, that the said charterer shall furnish and supply the needful and sufficient cabin stores to and for the supercargo, master, and officers, of the said ship, for the said voyage, and that the owners shall and will allow, and pay to him therefor, the sum of 1500 dollars; and, also, that the cabin shall belong to the said charterer, (excepting the respective state rooms in which the master and officers shall sleep.) And it is hereby further agreed, and granted and reserved, that the master shall have a privilege of six cubic tons, freight free; the first officer a like free privilege of three cubic tons, and the second officer a like free privilege of two cubic tons, provided, that neither of the said privileges shall be used for the purpose of shipping flour out in the said ship. And the said charterer, for himself, his heirs, executors, and administrators, doth hereby covenant and agree with the said owners, that the said charterer will well and truly pay and satisfy all the port charges and expenses of the said ship, as well abroad as at Philadelphia aforesaid, until she shall have discharged her return cargo, excepting always the sea-stores, the wages of the master, officers, and crew, and the repairs and outfits of the said ship, with all which she is to be chargeable. And it is hereby further agreed, that there be allowed, and are granted, one hundred and twenty working days in all, for the loading and unloading of the said ship at the ports and places of loading and delivery, and that the time not used and occupied at one port or place, may be taken or made up at the others, so that the whole do not exceed the number allowed as above mentioned; and that for every detention, over and above the said one hundred and twenty days, the said charterers shall pay to the said owners the sum of 75 dollars per day, to be paid in like manner as the freight. And the said charterer, for himself, his heirs, executors, and administrators, doth hereby promise and agree, with the said owners, their executors, administrators, and assigns, that he will cause the said ship or vessel to be loaded at the said port of Philadelphia, on her being in readiness to receive her funds and cargo there, and reloaded at the island of Madeira, and at Bombay and Calcutta, in the manner above expressed; and that he will pay to them, on the return of the said ship to Philadelphia, and before the discharge of her cargo there, in approved notes, not exceeding an average time of ninety days from the time at which she shall be ready to discharge her cargo, the clear sum of 30,000 dollars; and if she shall have proceeded to Calcutta, the further sum of 2000 dollars, for the hire and freight of the said ship, for the said voyage. In witness whereof, the said owners and charterer have to these presents, in duplicate, set their hands and seals, the day and year first above written.

'ARCH. GRACIE & SONS. [L. S.]

'HUGH CHAMBERS.' [L. S.]

On the 28th of November, 1818, the America sailed from Philadelphia, upon the voyage in the charter-party mentioned, laden with sundry goods, and also 15,000 dollars in specie, the property of the defendants. The flour and other merchandise were delivered at Madeira, and the quantity of 207 pipes of wine, purchased with the proceeds, or part thereof, was there laden on board the America, and made deliverable in India. The America proceeded from Madeira to Calcutta, where the quantity of about 324 tons of her burthen was filled up from the proceeds of the outward cargo, and with such parts of the wine, taken in at Madeira, as was not disposed of at Calcutta; and the merchandise so taken in was made deliverable to sundry consignees, in the port of Philadelphia. Hugh Chambers, the charterer, was on board the said ship at Calcutta, and it was impracticable to obtain any freight for the said ship at the said port, beyond the amount so laden as aforesaid; nor could any person be induced there to ship on board of her any other goods, deliverable in the United States, upon the condition of paying, or being liable, for any freight whatever. Whereupon, the said Chambers applied to the plaintiffs to make him an advance, for the purpose of purchasing merchandise to ship on board the ship America, and did then and there, with the knowledge and consent of Edward Rosseter, the captain or master of the said ship America, enter into an agreement with the plaintiffs, that if they would make such an advance, he would leave the merchandise purchased therewith in their hands, as a...