Harding v. Cargo of 4, 698 Tons of New Rivers Steam Coal

• Decision Date: 15 October 1906
• Docket Number: 35.
• Citation: 147 F. 971
• Parties: HARDING v. CARGO OF 4,698 TONS OF NEW RIVERS STEAM COAL.
• Court: U.S. District Court — District of Maine

147 F. 971

HARDING v. CARGO OF 4,698 TONS OF NEW RIVERS STEAM COAL.

No. 35.

United States District Court, D. Maine.

October 15, 1906

Benjamin Thompson, for libelant.

J Wells Farley and Charles Wolcott, for claimant.

HALE District Judge.

This is a libel to recover damages for detention of a vessel. The five-masted schooner Dorothy Palmer, with a carrying capacity of 4,800 tons, one of a large fleet of schooners known as the 'Palmer Fleet,' was chartered in Boston on the 27th day of January, 1904, for a voyage from Newport News to Portland, with a full cargo of coal. The charterer and claimant was the Warren & Monks Company, a corporation engaged in the wholesale coal business at Boston. The charterer had received notice from the New Rivers Consolidated Coal & Coke Company that it could supply it with 30,000 or 40,000 tons of coal per month until April 1, 1905. By the terms of the charter, the schooner was to be provided with a full and complete cargo of coal and pay for the use of the vessel 75 cents per ton. The charter party further provided 'It is agreed that the lay days for loading and discharging shall be as follows: Commencing from the time the captain reports himself ready to receive or discharge cargo and excepting Sundays and national legal holidays unless used. Vessel to have turn in loading. Vessel to be loaded promptly.'

The above provision was all in print, except the last sentence namely, Vessel to be loaded promptly,' which was written below the printed part, in a blank space. The charter provided also:

'That for each and every day's detention by default of such charterer six cents per ton B.L. weight per day, day by day, shall be paid by said party of the second part (the charterer), or agent, to said party of the first part (the vessel), or agent. The cargo or cargoes to be received and delivered alongside within reach of the vessel's tackles, sufficient water guaranteed. Vessel to have an absolute lien on cargo for freight, dead freight and demurrage. Vessel may assert said lien with cargo still on board.'

The schooner arrived at Newport News in the morning of the 12th day of February, 1904. The testimony shows that at Newport News there is no opportunity for coal to be stored. All coal shipped is bituminous, and is run upon cars from the mines to the docks of the Chesapeake & Ohio Railroad Company. It is dumped from the cars into the superintendent of terminals, who has charge of the docking of vessels at the piers, providing berths for them, ordering coal upon the dock, and directing the loading. He determines the place where, and the time when, vessels shall be docked. The railroad company has about 6,000 cars, a great part of which are used for the transportation of coal from the mines. It maintains three piers for the shipping of coal, known as 'Pier 2,' 'Pier 3,' and 'Pier 10'; all of these piers having berths for vessels on both sides. Loading the vessels is done by gravity; the cars being brought from a low grade, pushed up an incline by a locomotive to the crest of the grade, where they are left by the locomotive, and then moved by hand, with the assistance of gravity, to the end of the pier and unloaded while in transit. At intervals along the tracks are pockets located under the track and connected near the edge of the pier with long metal chutes. Connection between the pocket and the chute is jointed, so that the chute may be raised or lowered to accommodate the height of the vessel to be loaded. By the use of these facilities, as the evidence shows, the maximum loading at that port is 325,000 tons per month, and, under normal conditions, about 10,000 tons per day are ordinarily loaded at the three piers. The testimony shows further that during the time the schooner was waiting for cargo, the shipment of coal was normal, and there was no shortage of cars or track facilities.

All coal vessels arriving at Newport News anchor in the roadstead, from which point they are taken by steam tugs of the Chesapeake & Ohio Railroad Company and docked at the particular coal pier at which the superintendent of terminals determines to load them. The masters of such vessels do not have anything to say about the docking, but, after reporting, wait until a tug is sent. Upon her arrival at Newport News, the libelant's vessel anchored at the usual anchorage and reported to Mr. Parker, and also to Mr. Arnal, the charterer's agent. At the time of her arrival there were 20 or more coal vessels at anchor in the harbor. These were, for the most part, schooners, and a few barges, waiting for cargo. The Palmer remained at her anchorage in the stream from the date of her arrival on February 12th until February 26th. The evidence shows that during all that time she was in readiness to be docked and to receive her cargo, and Mr. Parker testifies that, when a vessel comes into Newport News harbor and lets her anchor go, she is entitled to count her time from that moment, so that no question is raised but that the Dorothy Palmer, on and after February 12th, was an 'arrived vessel,' within the meaning of the charter party. At about noontime on February 26th the schooner was docked by direction of Mr. Parker at berth 9 of pier 10. Capt. Harding, her master, testifies that she received cargo right along every day up to March 2d, and on that day the coal supply ran short, and she was hauled into the stream; that on the following day, March 3d, she was docked at pier 3, where she remained until March 5th, when her loading was completed. The claimant admits liability for the delay incident to the shortage of coal on March 2d, and, to cover the detention from that time until March 5th, it has paid into the registry of the court the sum of $850, but denies that it is liable for any further detention.

The first question in the case relates to the construction which the court shall give to the provisions of the charter, 'Vessel to have turn in loading,' and, 'Vessel to be loaded promptly.'

1. It is claimed by the libelant that the insertion into the printed charter party of the written words, 'Vessel to be loaded promptly,' supersedes the printed portion, 'Vessel to have turn in loading,' and that thus, under the terms of the charter party, the schooner should have been loaded promptly without any regard to the question of turn. The learned counsel for the libelant cites the class of cases where, in contracts which present great difficulty of construction, courts have disregarded printed portions which were inconsistent with inserted written clauses, and have permitted the written words to master the rest of the printed blank. He cites many important and leading cases, some of them in this circuit, where this position has been sustained, and urges that, under this class of decisions, the written portion of the charter party should be given the controlling weight; that the vessel should have been loaded as soon as she came to Newport News, without any regard to the loading of other vessels; and that the charterer was obliged to have cargo ready for shipment upon the arrival of the schooner at Newport News, or immediately thereafter. I cannot give this interpretation to the two expressions in the charter party. The principle of construction invoked by the learned counsel for the libelant is resorted to by courts upon questions where there is an irreconcilable conflict between two provisions in a contract; but this method of interpretation is not, and should not be, followed where a reasonable construction may be given, which gives force to every term and provision of the contract, and is, at the same time, consistent with law and with the intention of the parties. The India, 49 F. 76, 1 C.C.A. 174; Miller v. Hannibal & St. Jo. R.R., 90 N.Y. 430, 43 Am.Rep. 179; Bell v. Woodward, 46 N.H. 315.

2. In order to find what the two expressions in the charter party mean, when taken together, it is necessary to find what is the meaning of the clause: 'Vessel to have turn in loading.'

The learned counsel for the claimant insists that this clause should be interpreted to mean that the vessel is to have turn in loading according to the custom of the port of Newport News. Under this construction, the claimant seeks to read into the contract a usage of the port that all sailing vessels shall be berthed in the order in which they arrive; but that preference shall be given to steamers whether they require coal for cargo or for bunker use.

In Donnell v. Amoskeag Manufacturing Co., 118 F. 10, 14, 55 C.C.A. 178, 182, in speaking for the Circuit Court of Appeals in this circuit, Judge Putnam said:

'We will find, therefore, that, so far as the expression 'in turn' is concerned, we must follow a strict construction; but, as to any question of usage at the place of loading, we must apply just and reasonable rules. * * * We will now proceed to look at the effect of the expression 'in turn.' The learned judge who disposed of the case in the District Court found that this stipulation had been violated in two particulars: By giving precedence, first, to two steamers belonging to the Consolidation Coal Company, and, second, to certain local demand for steamers for bunker consumption, for street railways, and perhaps for other local purposes. On this branch of the case, we are met by an express stipulation in the charter party which is not to be lightly put aside. If it were intended that preferences of these kinds should be given, it was easy to so stipulate in the charter party, and it should have been done. It was apparently usual for the Consolidation Coal Company to give priorities of this character, but this does not relieve the position. * * * From the very nature of the usage, no limit can be put on it, so that to refuse this vessel

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