Orvig's Dampskibselskab Aktieselskab v. Munson SS Line

• Decision Date: 10 January 1927
• Docket Number: No. 131.,131.
• Citation: 16 F.2d 957
• Parties: ORVIG'S DAMPSKIBSELSKAB AKTIESELSKAB v. MUNSON S. S. LINE.
• Court: U.S. Court of Appeals — Second Circuit

16 F.2d 957 (1927)

ORVIG'S DAMPSKIBSELSKAB AKTIESELSKAB v. MUNSON S. S. LINE.

No. 131.

Circuit Court of Appeals, Second Circuit.

January 10, 1927.

Haight, Smith, Griffin & Deming, of New York City (Herbert K. Stockton, of New York City, of counsel), for appellant.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Earl Appleman, of New York City), for appellee.

Before HOUGH, HAND, and MACK, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

This suit is based upon the breach of an undoubted maritime contract, and the form in which it is presented strongly indicates an attempt at a "case stated" for the opinion of the court.

We have before us a libel that states as facts some matters which can never be more than legal conclusions, also the written charter party; but we know nothing of the circumstances surrounding its fulfillment or occasioning its breach, and are substantially asked from the form of the contract to lay down a rule or rules which would affect charter parties or breaches thereof under any or all of the peculiarly changing circumstances of maritime affairs. We shall endeavor to avoid such a performance and stick closely to the skeleton of facts presented.

Before now we have said that, "while maritime contracts or their interpretation are probably more subject to the influence of usage or general custom than most other agreements, yet they are and a charter is a contract like another, subject to the same general rules and leading to the same liabilities." Schoonmaker v. Lambert (C. C. A.) 269 F. 583, at 585. This libel asserts that the latest date upon which respondent could lawfully redeliver the Munch was June 24th, viz. five months and three weeks after the date of delivery. This is not a fact, but a legal conclusion, said to be inevitable under Prebensens v. Munson S. S. Line Co. (C. C. A.) 258 F. 227. We shall assume it to be true, but for argument's sake only. It is next said that the vessel's retention until July 1 was a breach of charter party, which is the same legal conclusion. We shall assume this to be true, though we are not informed of the circumstances of retention, nor of any maritime difficulties that may have rendered retention inevitable, and perhaps excusable.

By these assumptions we conclude that respondent was guilty of a breach of contract, for which the usual compensation by way of damages has been the current rate of hire during the period of continuing breach. Atlantic Co. v. A Cargo of Sugar (C. C. A.) 249 F. 871....