James v. Brophy

• Decision Date: 25 October 1895
• Docket Number: 132.
• Citation: 71 F. 310
• Parties: JAMES et al v. BROPHY.
• Court: U.S. Court of Appeals — First Circuit

71 F. 310

JAMES et al v. BROPHY.

No. 132.

United States Court of Appeals, First Circuit.

October 25, 1895

Appeal from the District Court of the United States for the District of Massachusetts.

Libel by L. S. Brophy against Charles L. James and others. There was a decree for libelant, and defendants appeal. Modified.

1. CHARTER PARTY-- WHAT CONSTITUTES.

Sellers of a cargo of lumber chartered a vessel to take the lumber to Africa, where it was to be delivered, and had drawn up an instrument purporting to be a charter party between the shipowners and the purchaser of the lumber, which was signed by the respective agents of these parties, and which stated the rate of freight to be $16.50 per thousand feet. On the same day the sellers of the cargo signed a document stating that they had that day chartered the same vessel to E., who was the agent of its owners, and in this paper they agreed 'in consideration of E. making a charter party with' the purchaser's agent 'at $16.50 per thousand feet,' to pay said E. 'the difference between amount of freight collected by vessel at Africa and $5,900 amount of charter,' and there was a further recital, 'All other conditions to be according to C.P., dated' the same day, between the purchaser's agent 'and E., agent of vessel.' Both instruments were written on letter heads of E. Held, that the latter instrument was a charter which, by reference to the other instrument, embodied and adopted all the terms and conditions contained therein, saving the matter of freight.

2. CHARTER PARTY-- UNILATERAL CONTRACT.

Though the instrument was not signed in behalf of the ship or her owners, it having been delivered to and accepted by them, and the ship having entered on its performance, it was binding upon both parties.

3. CHARTER PARTY--

A vessel may be chartered by parol.

4. DEMURRAGE.

When, in the charter party, Sundays only are excepted from running days, the charterers are not exempt from demurrage for holidays and days on which laborers will not work.

5. DEMURRAGE.

When a cargo is to be delivered within reach of the ship's tackles, the charters are not exempted from demurrage by a breakdown of one of the lighters.

Charles T. Russell, for appellants.

Frederic Dodge, for appellee.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

WEBB District Judge.

The libel was properly against the appellants alone. The Compagnie Francaise de l'Afrique Occidentale and John F. Brooks, the agent of that company, were in no way parties to the contract between the libelant and the defendants, relied on and set out in the libel as the basis of this demand for demurrage. That Brooks and his principal, the Compagnie Francaise, were connected with the business transaction which gave occasion to that contract, did not make them parties to it. Nor does the fact that they entered into a different or independent charter with the shipowners change their relation to this case. It is manifest that James & Abbot, having sold or contracted to sell a cargo of Southern pine lumber to Brooks as agent of the Compagnie Francaise, chartered the bark Tremont to take on board that cargo at Ship Island, and thence to transport it to Dakar and Sierra Leone, on the west coast of Africa, and to discharge it partly at one of those ports and partly at the other, for the round sum of $5,900. For some reason of their own, perhaps that they might make the apparent price of lumber at the place of shipment as high as possible for their advantage in making other sales, they desired to have it appear that freight was obtained at $16.50 per thousand feet, intake survey. It should be remarked that this cargo was sold to be taken by the purchaser, at Ship Island, for a gross sum per thousand feet, to be made up by adding to the price of the lumber the amount of insurance and freight which the purchaser might have to pay. All these facts, excepting the suggested motive for the nominal freight, appear in the defendants' answer to the libel. Whatever may have been their motive, or the reasons influencing them, they caused another charter to be drawn up, specifying with minuteness all the terms of their charter, except only the freight to be paid the ship for the voyage. This instrument purported to be a charter party between the shipowners and the Compagnie Francaise, and was signed in behalf of the owners by John S. Emery & Co., agents for the owners, and by John F. Brooks, agent for the Compagnie Francaise. As to the compensation for the ship's service, it was therein stipulated that the vessel should be paid, 'for the charter or freight of said vessel during the voyage aforesaid, in the manner following, that is to say, sixteen dollars and fifty cents ($16.50) per thousand feet, freight measure, intake survey, for all the lumber delivered at Dakar and Sierra Leone, payable in United States gold or its equivalent, upon delivery of cargo, without discount or allowance. Vessel to pay her own port charges at Dakar and Sierra Leone. ' This instrument bears date at Boston, October 7, 1889. On the same 7th day of October, 1889,-- but whether in fact before or after the execution of the charter party just mentioned does not appear,-- a document was executed as follows:

John S. Emery & Co., Ship Brokers, No. 168 State Street.

(Cable address:

Emery, Boston.) Boston, Oct. 7, 1889.

We have this day chartered of John S. Emery & Co. the bark Tremont (now on passage from Philadelphia to Galveston) for a voyage from Ship Island, Miss., to Dakar and Sierra Leone, W.C.A for a lump sum of fifty-nine hundred dollars ($5,900), and no deduction is to be made from said amount in case of loss of part or whole deck load on passage to Africa. Vessel to take a full cargo of lumber under deck, and deck load not to exceed 25,000 feet. In consideration of J.S.E. & Co. making a C.. with John F. Brooks at $16.50 per thousand feet, intake survey, board measure, for each and every thousand feet delivered, we agree to pay said Emery the difference between amount of freight collected by vessel at Africa and $5,900, amount of charter. Balance to be paid as soon as charterer receives advices of the delivery of cargo at Africa. All other conditions to be according to C.. dated October 7, '89, between John F. Brooks, agent, and John S. Emery &...