Norton-Crossing Co. v. Martin
| Decision Date | 21 November 1918 |
| Docket Number | 1 Div. 18 |
| Parties | NORTON-CROSSING CO. v. MARTIN. |
| Court | Alabama Supreme Court |
Rehearing Denied Feb. 13, 1919
Appeal from Circuit Court, Mobile County; Norville R. Leigh, Jr. Judge.
Action by William H. Martin against the Norton-Crossing Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.
Palmer Pillans, of Mobile, for appellant.
Gregory L. & H.H. Smith, of Mobile, for appellee.
This is a suit by appellee to recover freight prepaid under a contract of charter party entered into between appellee and appellant. The vessel and cargo were lost at sea.
On the submission of this cause a motion to strike a part of the bill of exceptions was argued, and the court very strongly intimated its opinion that the motion should be overruled. We see no reason now for a different opinion. It would not have been proper on a motion of this character to mutilate the bill of exceptions settled and signed by the trial judge. Appellant cannot accept its bill by piecemeal. If dissatisfied, it should have moved to establish its bill, and upon that motion all parts of the bill would have come under revision, resulting in a whole historically correct and consistent with itself throughout.
The complaint is stated in three counts. One is the common count for money received by the defendant for the use of plaintiff. Two is for money paid by plaintiff to defendant as freight due by the plaintiff to the defendant for transportation on the schooner Margaret Haskell from Pensacola to a port outside of the United States, and it is alleged that "thereafter said 'Haskell,' while upon said voyage, was lost at sea, and said freight money was never earned, but the defendant has, nevertheless, failed and refused to pay the same to the plaintiff, although often requested so to do." Three is similar to two, the difference being immaterial to any question raised in the cause, which was tried by the court without a jury on the plea of the general issue.
The facts were undisputed, and may be summarized as follows Plaintiff and defendant, the latter owning the vessel entered into a contract of charter party under which the schooner Margaret Haskell was to carry a cargo of lumber from a safe Gulf port to the west coast of Italy. The instrument was signed "Norton-Crossing Company, by Jos. H. Strange, Pres.," and "Gulf Export Company, by Wm. H. Martin, Manager," and it appeared that Gulf Export Company was the trade-name in which plaintiff did business. The vessel was loaded at Pensacola by the Gulf States Shipping Company, and by it the freight was prepaid to defendant. The gross freight amounted to $48,754.25; but there was a stipulation for the payment by the charterer of certain charges by him of $4.50 per standard of the entire cargo. Of the freight money, $6,841.27 was applied to those charges, and $2,437.71 was applied in payment of brokerage, as provided by the contract. Five per cent. was retained for insurance.
Defendant contends that by the terms of the charter party, construed in the light of attendant circumstances, the freight was due whether the voyage was or was not performed; that the action was not rightly brought in the name of the plaintiff; and, in any event, that the judgment was excessive.
It is the admitted law of the American courts that, where there is no specific agreement to the contrary, freight for the transportation of goods by sea is not deemed to be earned until the voyage is completed and the goods are delivered, or ready to be delivered, at the point of destination.
However, the parties may stipulate by express words, or by words which, though not express, are sufficiently intelligible to that end (Ellenborough in Silvale v. Kendall, 4 M. & S. 37), that the freight, or any part thereof, shall be payable absolutely at the time of the shipment of the cargo, or at a certain time thereafter, without regard to performance of the contract by the carrier. 7 Am. & Eng.Ency.Law, 246.
In the preparation of the contract in this case, dated November 4, 1915, a printed form was used. The ninth paragraph of the original form read as follows:
"The freight to be paid in cash without discount, less the advance, if any, on right and true delivery of the cargo; but the receivers of the cargo are to pay on account of freight during delivery, if on the continent, in cash, at the rate of exchange current on the day of steamer's arrival for short sight bankers' bills on London."
By cancellation and interlineation this paragraph was made to read:
"The freight to be paid without discount in advance."
And at the end of the printed form these words in manuscript were added:
Defendant's contention going to the right of recovery, to state it in another form, is that these provisions of the charter party suffice to make it clear that the parties intended that the freight should be considered as earned, whether or not the vessel or goods were lost on the voyage, or, at least, that these provisions left the contract ambiguous on this point, so that evidence aliunde should have been admitted to interpret the otherwise indeterminate intention of the parties.
As the contract, according to defendant's construction of it, was intended to control the American rule of law applicable to such contracts, and to substitute an agreement of the parties to a different effect, the burden rested upon defendant to make this plain to the court. The weight of this burden is thus expressed by the Supreme Judicial Court of Massachusetts, per Bigelow, C.J., in Benner v. Equitable Ins. Co., 6 Allen (Mass.) 222:
Recurring in the first place to the change in the ninth paragraph, we are unable to see that, directly or by implication, it accomplished or signified anything more than to make the freight payable in advance, leaving the question whether it should be returned to plaintiff in the event that contract of carriage was unperformed to be wholly determined by the general rule of law on that subject, or by the manuscript addition to the contract, if that were sufficient to effect a change in the application of that rule.
We have quoted the manuscript addition, and that is the only other express provision of the contract which is supposed to have bearing on the question immediately at hand. In this connection defendant offered to prove that plaintiff had with defendant a contract in identical terms for the carriage of freight by defendant's schooner Van Allens Boughton, and that in letters (offered in evidence, but rejected by the court) written to defendant in February and March, 1916, plaintiff had construed the Boughton contract as defendant now contends the Haskell contract should be construed, and likewise with reference to a letter to defendant March 8, 1916, in which plaintiff, speaking of the Margaret Haskell, said:
"We are sorry to see that this vessel has been lost, and hope you have the value of the ship covered by insurance; in that case, the freight money collected would be clear profit."
Defendant's argument against a return of the freight money is grounded in the main upon the consideration that the manuscript addition provided that the vessel was to pay for insurance on prepaid freight. It is said that if it had been the intention of the parties that the freight was subject to be recovered back in the event the contract of carriage was not performed, then it was at the ship's, not the shipper's, risk, and the shipper would have been entirely unconcerned as to whether the ship insured or not, and therefore it would have been idle to add a clause obliging the ship to pay 5 per cent towards the insurance premium. If, however, the argument proceeds, the freight was not recoverable back, and therefore was at the charterer's risk, then it is entirely reasonable that the shipper should have required the owner of the vessel to insert in the contract an obligation to pay a part of the insurance premium, because otherwise the owner would receive his freight money in advance, without being put to the expense of protecting it by insurance during the voyage, and the charterer would not only have to pay the freight in advance, but would also have to carry the burden of insuring it; or, stating the proposition in another way, it is said that, if the freight be prepaid under such circumstances as to be recoverable back, then the charterer has nothing at risk and no insurable interest, but the insurable interest lies in the shipowner; while, if the freight is prepaid so as not to be recoverable back, then the shipowner has not an insurable interest, but the charterer has the freight...
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