Lovell v. Davis
| Citation | 25 L.Ed. 944,101 U.S. 541 |
| Parties | LOVELL v. DAVIS |
| Decision Date | 01 October 1879 |
| Court | United States Supreme Court |
ERROR to the Circuit Court of the United States for the District of Louisiana.
This action was brought against Lovell & Bailey on a charter-party entered into by them March 14, 1871, for a voyage of the American ship 'Adorna,' 'now lying in the harbor of New Orleans,' from the port of New Orleans to Liverpool, between Havre and Hamburg, both inclusive, or Cronstadt. It was agreed between the parties that 'this charter shall commence when the vessel is ready to receive cargo at the place of loading, and notice thereof is given to the party of the second part or their agent, and to end on a true delivery of cargo at the port of discharge.'
The defence was that by reason of the plaintiff's delay in presenting his vessel at New Orleans for receiving the cargo, the defendants had rescinded the contract, and were justified in doing so. A verdict and judgment were rendered for the plaintiff, the master of the chartered vessel. The defendants sued out this writ of error.
The remaining facts, and the instructions to the jury, are set forth in the opinion of the court.
Mr. Philip Phillips and Mr. W. Hallett Phillips for the plaintiffs in error.
No counsel app ared for the defendant in error.
MR. JUSTICE MILLER, after stating the facts, delivered the opinion of the court.
The charter-party contains a recital that at the date of its execution the vessel was lying in the harbor of New Orleans, while the bill of exceptions shows that she was then at sea. The court charged the jury that if at the time the defendants signed the charter-party they knew that the ship was at sea, the words 'now lying in the harbor of New Orleans' should be regarded as of no significance.
That language in the charter is not a warranty or contract, but a representation; and if the charterers knew certainly that the vessel was not there, of course they were not deceived or misled by the recital, which was probably part of a printed form that attracted no attention. The evidence on the subject of this knowledge is not in the record, and it is, therefore, to be presumed in favor of the action of the court that it was full and complete. There was no error in this instruction.
The court also charged the jury that as the charter-party fixed no definite time for the vessel to be at New Orleans ready to receive the cargo, the master was bound to use reasonable diligence in bringing her to the port, and was bound to use...
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