Isaksson v. Williams

• Decision Date: 08 February 1886
• Citation: 26 F. 642
• Parties: ISAKSSON v. WILLIAMS and others. [1]
• Court: U.S. District Court — Southern District of New York

26 F. 642

ISAKSSON v. WILLIAMS and others. ^[1]

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

February 8, 1886

H Putnam, for libelant.

S. M Adams and John A. Deady, for respondents.

BROWN J.

This libel was filed to recover the sum of $360, paid by the master of the bark Pehr Brahe for stevedore's services in discharging a cargo of hides in New York in January, 1885. The demand is founded upon the provisions of a charter of affreightment executed by the respondents at Montevideo, for the transportation of the cargo of hides thence to New York. The charter, besides the usual provisions, contained the following stipulations:

'The cargo to be shipped at the port of loading, and delivered at port of discharge, as customary, say to be brought to and taken from along-side the vessel at charterers' expense and risk; * * * thirty-five running days (Sundays excepted) to be allowed for loading at port of loading. Discharging at port of delivery as customary. The stevedore to be selected by charterers, and paid by them the time employed in taking in ballast and changing ports of loading not to count as lay days.'

In the original charter the sentence in italics is in writing, interjected in the midst of the printed sentence about the lay days. The other clauses are printed. On the arrival of the vessel in New York, the master called upon the respondents' agents to select and furnish a stevedore, which they declined to do. The master thereupon employed a stevedore to discharge the hides, at an expense of $360; a portion of the crew assisting in the work, for whose services no charge was made. The value of the stevedore's work is not disputed.

The defense is that, by the established custom and usage of the trade in hides between Montevideo and New York upon charters in the same form as this, the ship is to pay for the services of the stevedore at New York; and that the understanding of the trade is that the clause in question relates to the employment of a stevedore at the port of loading only. The evidence offered at the trial was abundant to prove the alleged custom and understanding in this trade, as regards the ship's duty to pay for a stevedore in discharging at the port of New York, upon a charter like the present. The evidence was admitted provisionally under objection; and the case turns upon the competency of the evidence, and its effect as respects the master, who had no knowledge of the custom.

1. The clause in regard to the stevedore is written in the charter-party immediately following the printed words 'discharging at the port of delivery as customary;' a clause relating to the time within which the discharge is to be made. Its position naturally connects it especially with the port of discharge, and with the acts of the parties at the port of delivery. If any weight were to be given to the circumstance that the word 'stevedore' is used in the singular number, the natural reading of the charter would therefore confine its construction to the stevedore to be employed at the port of discharge only. The effect of the whole clause would then be that the stevedore at the port of discharge was to be selected and paid by the charterers; and that, for any delay in discharging beyond the customary period, the charterers must pay. Considering that the clause relating to the stevedore is inserted in the midst of the sentence relating exclusively to the port of discharge, and that its insertion there cannot be treated as a mere mistake or accident, since the very defense is that the practice of thus inserting the clause is usual and customary, there is little rational ground for the claim of the respondents to disconnect it with the port of discharge.

But, giving to the charter the broadest latitude that is claimed for it as a commercial document, and treating the clause in question as an independent one that might appear in any part of the charter, disconnected from its present context, and construing the phrase in furtherance of the presumed intention of the parties, the phrase would naturally be interpreted as including the stevedore at the port of discharge as well as at the port of loading, provided a stevedore should there be necessary. The charter being for a lump sum, a stevedore was employed at the port of loading, in the charterer's interest, in order that the hides might be stowed as compactly as possible. To accomplish this, the hides of different consignees were mixed, and so stowed as to require a stevedore's services at the port of discharge. The necessity of a stevedore in unloading was admitted at the trial. Upon these facts the natural meaning and import of the clause relating to the stevedore are to require the charterers to pay for all necessary services of a stevedore at the port of discharge, as well as at the port of loading. But if the clause were regarded as ambiguous, from the use of the singular number, the general rule is that ambiguities in phrases inserted by the charterers are construed against them, and in favor of the ship. The Martha, 3 Rob.Adm. 106; The John H. Pearson, 14 F. 749, 752; Carr v. Austin, etc., Id. 419; Merrill v. Arey, 3 Ware, 215, 218.

2. In the case of Barnard v. Kellogg, 10 Wall. 383, 390, the office of custom or usage is stated as follows:

'The proper office of custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract,-- whether written or in parol,-- which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation, on the theory that the parties knew of its existence, and contracted with reference to it. It is often employed to explain words and phrases in a contract of doubtful

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