Hildebrand v. Geneva Mill Co.

• Decision Date: 18 April 1929
• Docket Number: No. 106.,106.
• Citation: 32 F.2d 343
• Parties: HILDEBRAND v. GENEVA MILL CO.
• Court: U.S. District Court — Middle District of Alabama

32 F.2d 343 (1929)

HILDEBRAND v. GENEVA MILL CO.

No. 106.

District Court, M. D. Alabama, S. D., at Dothan.

April 18, 1929.

Smiths, Young & Johnston, of Mobile, Ala., and Farmer, Merrill & Farmer, of Dothan, Ala., for libelant.

W. O. Mulkey, of Geneva, Ala., for respondent.

CLAYTON, District Judge.

On December 2, 1925, the libelant and owner of the schooner Edward R. Smith entered into a charter party agreement in the name of A. L. McLean, the master of the vessel, through Emory Sexton & Co., agents and ship brokers of libelant, with the Geneva Mill Company, through Fillette-Green & Co., agents and ship brokers of respondent, for the transportation of a cargo of lumber from Pensacola, Fla., to Miami, Fla., for the sum of $5,000.

Among other things, the charter party provided that:

"It is understood that vessel is at Norfolk, Va. ready to proceed to Miami, Fla. with cargo of lumber and after delivering that cargo will proceed to Pensacola, Fla., to load under charter party dated November 30th, 1925 and after completing that voyage will proceed immediately from Miami to Pensacola to load under this charter."

Under the terms of this charter, a full cargo, under and on deck, of dressed lumber was to be transported.

On November 30, 1925, previous to the execution of this charter party, the libelant and respondent had executed another or a first charter party agreement for a cargo of lumber from Pensacola to Miami. At the request of the respondents, on January 9, 1926, the voyage was changed from Pensacola, to Tampa, Fla., instead of to Miami, at a reduced freight charge of $4,500 instead of $5,000.

At the time the contracts were executed, the Edward R. Smith was at Norfolk, Va., with a cargo of lumber to be carried to Miami, Fla., and there discharged, and, as set out in the foregoing quotation from the charter party agreement, was to proceed from Miami after discharging its cargo there, to Pensacola to enter upon the two contracts here under consideration. It is without dispute that the two charter agreements were entirely separate and executed at separate times. The first charter party was completed and the freight paid; and it is not, therefore, involved in this suit.

The Edward R. Smith proceeded with its cargo from Norfolk, Va., to Miami, Fla., reaching Miami about December 20, 1925, and completed discharging its cargo on January 13, 1926. On that day a vessel was capsized in the channel at Miami and blocked it, thereby preventing any other vessels passing through this channel out of the harbor. There was an old channel, known as the Cape Florida Channel, which had been abandoned for a long time. The captain of the schooner undertook to get his vessel out of the harbor through the abandoned channel. At first he was unable to get a tug to undertake to tow the vessel through. However, after tugs had carried two lighter vessels through the Cape Florida Channel (the abandoned channel), the Edward R. Smith was towed through this channel on January 21, 1926. She then proceeded to Pensacola, arriving there February 1, 1926, notified the respondent of her arrival, and, as provided by the charter party agreements, respondent commenced to load the vessel with pine lumber for the first voyage.

It is observed that the charter party provided that:

"The act of God * * * and all and every other dangers and accidents of the seas, rivers and navigation of what nature and kind soever during the said voyage, * * * or any extraordinary occurrence beyond the control of either party, always mutually excepted."

As provided by the terms of the charter party, the vessel did proceed from Norfolk, to Miami, and from Miami to Pensacola, and commenced taking on a cargo under the first charter party. There was no delay within the terms of the agreement of the parties in commencing the first voyage. As soon as the ship was loaded at Pensacola by the respondent, she proceeded to Tampa, Fla., and there discharged the cargo, completing the same on March 6, 1926.

Shortly after the cargo had been discharged, and on the same day, one Hubert Ansley, the authorized agent of the Geneva Mill Company, verbally notified Capt. McLean, the master of the schooner, that the respondent canceled the second charter party, which is the one involved here. At the time that this agent of the respondent undertook to cancel the charter party, he stated in the presence of Capt. McLean that the respondent was "not in a position to load." And in answer to a question by Mr. Freeman, he said, "It would be suicide for the Geneva Mill Company to try to load." Capt. McLean refused to take verbal notice of the attempted cancellation, and then undertook to get in touch with the Geneva Mill Company, respondent, by telephone and telegraph, but without success. The libelant, through his ship brokers, Emory Sexton & Co., undertook by a Captain Barnes to get a written refusal or cancellation, or to adjust the matter. Barnes likewise telephoned and telegraphed respondent but received no reply, and on March 17 went in person to Geneva, Ala. Barnes did not get any information from Mr. Morris, the president of respondent company. Morris said nothing to him except, in substance, that he was not handling the matter, and that he (Barnes) would have to see Hart, another officer of the company, who was then in Birmingham. Hart returned to Geneva in the afternoon, and Morris made an appointment with him for Barnes at the office of respondent, but Hart did not meet the appointment. About 7 o'clock that night Barnes went to Hart's residence where Hart was sick in bed. Barnes offered the vessel, and Hart refused to make any statement or further cancellation, and refused to answer any further telegrams or to give any further notice. The one thing that Hart did was to say, in substance, that the Geneva Mill Company had lost enough on the misrepresentation as to the vessel's position.

The two charter parties of the schooner with respondent were identical in every respect as to terms, one dated November 30, 1925, and the other dated December 2, 1925. The first was performed. Under it the vessel was required to go from Miami to Pensacola, and thence with cargo to Tampa. The profits made on that voyage were $3,804.34. To have performed the second charter party, the vessel would only have had to sail from Tampa to Pensacola and thence back to Tampa. The difference between the distance to be sailed would have added $500 to the profits. This would have made the profits of the second voyage $4,304.34.

The vessel was ready to proceed from Tampa to Pensacola under the charter party of December 2, 1925, but the charter party was breached, canceled, by respondent. The vessel then lay idle at Tampa, seeking to get other employment, until March 26, 1926, when she made a charter party with the Turner Lumber Company to make a voyage with a cargo of lumber from Palatka or Jacksonville, Fla., to Irvington, N. Y. Under this new charter party she earned $2,118.92 in 58 days, or $36.54 a day. The first 24 days of this voyage covered the last 24 days that she would have been engaged in performing the charter party of December 2, 1925, had it not been canceled, and during this time she earned at the rate of $36.54 a day — $876.96. Deducting this from $4,304.34, the amount she would have earned had her charter party not been breached by respondent, gives her a net loss on account of such breach or cancellation amounting to $3,427.38. The respondent admits in its answer the execution of both charter parties and the cancellation or refusal to permit the vessel to load and transport the lumber under the charter party here involved.

Respondent undertakes to set up in defense, and in seeking affirmative relief by way of set-off, damages, first for delay in the performance of the first charter party, and, second, damages by reason of the capacity of the schooner having been misrepresented. Respondent contends that it would have taken so many days for the vessel to have proceeded from Norfolk to Miami and discharged its cargo there, and proceeded from Miami to Pensacola, and further insists that the time which should have been consumed in reaching Pensacola would have put the vessel at Pensacola between December 20 and 30, 1925. It is further urged that the schooner was represented to have a capacity of 500,000 feet of dry rough cypress, and having that capacity of dry rough cypress, it should have carried 660,000 feet of dry dressed pine, which, as it is asserted, was the kind of lumber shipped by respondent on the first voyage.

It is without dispute that there existed in Florida in the fall of 1925 an unprecedented boom or wild speculation in real estate; and that all building materials including lumber reached very high prices; and that there were many anxious buyers at exorbitant prices. As a result of the boom condition, Miami being in the center of it, the harbor at Miami was congested to such an extent that vessels could unload and load only after long delay. It is further without controversy that this condition and congestion at the Miami port was well understood and known by the parties to the suit at the time of entering into the charter party agreements, and that therefore the parties contracted with reference to the time of performance as set out in these agreements, namely, that the ship was at Norfolk, Va., with a cargo and would go to Miami and discharge its cargo and then proceed to Pensacola on these charter party agreements, and the further provision making certain exceptions to accidents of the seas, rivers, and navigation.

The undisputed evidence is that this boom condition commenced to lessen in January and February, 1926, and that the "bubble bursted" and prices commenced sliding downward about the last of February or the first of March, at or about the time the respondent sought to cancel the contract now under consideration.

On January 9, 1926, Emory Sexton & Co., libelant's...