The John H. Pearson

• Decision Date: 18 January 1888
• Citation: 33 F. 845
• Parties: THE JOHN H. PEARSON. v. TAYLOR. FILIBERTO et al.
• Court: U.S. District Court — District of Massachusetts

33 F. 845

THE JOHN H. PEARSON.

FILIBERTO et al. v. TAYLOR.

United States Circuit Court, D. Massachusetts.

January 18, 1888

H. W Putnam, for libelant.

John C Dodge & Sons, for claimant.

COLT J.

Under the decision of the supreme court, (121 U.S. 469, 7 S.Ct 1008,) this case comes back to the circuit court for further proceedings, in conformity with the opinion. The court, in its opinion, says:

'What 'the northern passage,' as used in this contract, means, therefore, is either a question of fact, or a question of construction applicable to understood facts. If it is, as the court below says it appears to be, a term of art, which, taken by itself, without the aid of the testimony, is unintelligible, then its meaning in 'the art'-- the trade-- is one of the material facts in the case on which the rights of the parties depend, and it should have been found and put into the findings of fact which the circuit court was required by law to make. * * * If, in point of fact, there is no passage to which the name or description of 'the northern' has been given in the trade, then the question becomes one of construction, as applied to the known facts of the business. The inquiry is not as to which passage would be the quickest, or even the best, or which another contract would require of another vessel, but which is 'the northern passage,' within the meaning of this contract. The evident purpose of the libelants was to keep the vessel as far as possible in the coolest of the passages that those engaged in the trade were accustomed to take; because it is found as a fact in the case that a cool temperature is necessary to the preservation of the cargo, and that the coolest water is north of the Gulf Stream, owing to the fact that there is a cold current between it and the American coast, moving in an opposite direction.'

As to what constitutes a 'northern passage' from Gibraltar to Boston, within the meaning of the charter-party, the libelants in the district court called 10 witnesses, and the claimant 13. In the circuit court the libelants called seven more witnesses, and the claimant none. From a careful examination of the record, I cannot but conclude that the libelants have shown by a preponderance of evidence that in the Mediterranean fruit trade the term 'northern passage' had a distant meaning, and that it was a course from Gibraltar north of the Azores, if possible; if not, just south of the...