The Oregon

• Decision Date: 01 May 1893
• Docket Number: 34,35.
• Citation: 55 F. 666
• Parties: THE OREGON. v. PITTSBURGH & L.A. IRON CO. THE PALMS. THE OREGON et al. THE PALMS et al. v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

55 F. 666

THE OREGON. THE PALMS. THE OREGON et al. v. PITTSBURGH & L.A. IRON CO.

THE PALMS et al. v. SAME.

Nos. 34, 35.

United States Court of Appeals, Sixth Circuit.

May 1, 1893

Statement by TAFT, Circuit Judge:

These were two appeals from decrees of the circuit court for the northern district of Ohio, affirming decrees of the district court for the same district. The two cases have been heard together in the three courts, because the facts and the testimony in them are substantially the same. The testimony in the Oregon case was stipulated into the Palms record. The libels were filed in the district court by the Pittsburgh &amp Lake Angeline Iron Company a corporation operating iron mines on Lake Superior, against the propeller Oregon and the schooner Palms, to recover damages for similar breaches of similar contracts of affreightment, by which J. C. Gilchrist, who was the managing owner of both vessels, agreed to carry iron ore for the mining company. The Oregon contract was as follows:

'Vessel Charter.

'Agreement between J. W. Moore, of Cleveland, Ohio, as managing owner of the vessel called the H. B. Tuttle, and Pittsburgh and Lake Angeline Iron Company, of Cleveland, O., made at * * *, this 15th day of February, 1886, witnesseth, that the said J. W. Moore, for the considerations hereinafter named, hereby agrees that said vessel shall carry cargoes of iron ore for the said Pittsburgh and Lake Angeline Iron Co. during the season of 1886, from Marquette, Mich., to Lake Erie ports, (not east of Erie,) at a rate of freight of one and 20-100 dollars ($1.20) per ton of 2,240 pounds. Said vessel shall carry no up loads without consent of Pittsburgh and Lake Angeline Iron Co., and shall make as many trips as possible on this contract. There shall be allowed four days' time for loading said vessel, and for furnishing a dock at which to discharge: the time to be reckoned from the hour when said vessel reported and was ready to load, until loaded, and from the time when reported at port of destination, and was ready to unload, until a dock was furnished. The time of such reporting in both cases not to date from an hour earlier than 8 o'clock A.M., or later than 5 o'clock P.M.; Sundays, Public holidays, and time lost in consequence of heavy seas, strikes, or any other causes beyond the control of * * *, excepted. When cargoes contracted by this vessel are delivered, if it shall be found that the time of detention exceeds the four days for trip, as above stipulated for, the said vessel shall be allowed a compensation for further detention, except for causes above stated, at the rate of five cents per gross ton of cargo for each day (of twenty-four hours) of such excess. The time of reporting, ready to load, and when loaded, with causes of detention, if any, shall be noted on the bill of lading in every instance. A special order for each cargo shall be obtained from the Pittsburgh and Lake Angeline Iron Co., at Cleveland, O. Said Pittsburgh and Lake Angeline Iron Co., in consideration of the above, hereby agrees to employ said vessel, and agrees to pay the freight as above mentioned.

'Pittsburgh and Lake Angeline Iron Co. 'J. W. Moore, Managing Owner. 'Cleveland, April 22d, 1886.

'The propeller Oregon is substituted for the propeller Tuttle in this contract by mutual consent. J. H. Outhwaite, Secretary.

'J. C. Gilchrist.'

The charter party for the Palms was exactly like the foregoing, with the following additional provisions:

'Said vessel to rate not lower than A2, * * * and to be constantly towed by some steamer.'

The Oregon was owned by J. C. Gilchrist, Randall E. Schuck, Thomas Maytham, and William Landgraff. The Palms was owned by J. C. Gilchrist, Randall E. Schuck, and William H. Gilcher. Gilchrist was the managing owner of both vessels.

The libel against the Oregon, after setting out the contract, and an allegation of full performance thereof by the libelant, averred that the oregon had violated the express stipulation of the contract by going, on the 15th of September, 1886, to Buffalo for a load of coal, without the consent of, and against the protest of, the libelant, whereby she lost so much time that, but for that delay, she could have made one more trip during the season, and she thus compelled libelant, in order to supply the deficiency, to charter other vessels to carry iron ore at a rate greatly in excess of the contract rate, to wit, $2.10. Another averment was that the Oregon, without the consent of the libelant, took in tow a great many vessels on her trips to and from Marquette, thereby preventing her from making as many trips as possible, and resulting in the loss of another trip.

In the libel against the Palms, in addition to the foregoing averments, it was charged that the captain of the Palms had collected from a consignee of the iron ore carried upon one of the trips, to whom the libelant had sold the tonnage for that trip, $104 more than the charter rate, which belonged to libelant as profit upon the sale of the tonnage, and which the captain turned over to respondents.

The answer of the respondents was-- First, that the libelant violated the contract in loading hard iron ore, when it was understood and agreed that the cargoes should be soft ore, which was cheaper to carry, and in shipping ore belonging to others than the libelant; and, second, that the vessels made as many trips as possible, and no act of respondents in violation of terms of the contract had caused any loss or damage. As to the $104 collected by the captain of the Palms, the respondents claimed that, as it was received on a trip in which the libelant had permitted another to ship ore, the respondents were entitled to collect and keep the going rates of freight from the real shipper.

The Oregon towed the Palms during the entire season, and made 12 round trips between Marquette and Cleveland.

It was conceded at the trial that the Oregon, on September 15, 1886, went with two tows, the Palms, and the Marsh, from Cleveland to Buffalo, where the three vessels were loaded with hard coal, which was carried to Marquette. The libelant protested against this violation of the contracts before the vessels left Buffalo. The excuse offered at the trial was that in the rough weather of September the vessels made better speed when loaded, because the strong winds of that season would blow them out of their course if running light.

It was also conceded at the trial that, in addition to the Palms, the Oregon also towed the schooner Marsh throughout nine of the twelve round trips, and that on two of the three remaining round trips she towed a schooner in place of the Marsh, so that for only one round trip did she tow only the Palms. In addition to this, on ten half trips, the Oregon towed a third vessel. Libellees' witnesses admit that a second tow delayed the propeller a day and a half in a round trip, and that a third tow delayed her as much more.

The master in the district court found that the two vessels had violated their contracts, and lost one trip, by going to Buffalo for up loads of coal, and by towing the Marsh and other vessels, and fixed their liability for damages at the difference between the contract rate of freight and the going rates of freight which the libelant was compelled to pay to carry the cargoes for the lost trip. He also found for libelant against the Palms for $104. The district court confirmed the findings, and entered the proper decree, which was affirmed by the circuit court. The difference between the contract and going rates of freight when libelant bought tonnage to carry the cargoes for the lost trip was 80 cents a ton, making $840 damages chargeable to each vessel, as well as the $104 additional against the Palms.

Harvey D. Goulder, (F. H. Canfield, of counsel,) for appellants.

Henry S. Sherman, for appellee.

Before TAFT, Circuit Judge, and SAGE and SWAN, District Judges.

TAFT Circuit Judge, (after stating the facts.)

It is contended by appellants that the provisions of the charters that the vessels should make as many trips as possible did not prevent them from towing other vessels on their trips because it was the custom for a propeller like the Oregon to tow two, three, and sometimes as many as five, vessels at a time. We do not see how such a custom could affect the construction to be placed on this contract. It may be very true that propellers of the power and tonnage of the Oregon are in the habit of towing three, four, and five vessels, but they do not always do it. Mr. Harvey Brown, in giving evidence as one experienced in lake transportation, said that he had in his charge three propellers carrying iron ore between Marquette and Michigan, which towed only one vessel. Indeed, appellants' own witnesses admitted that the number of tows was varied from one to five. It is only reasonable to suppose, therefore, that the intention of the parties to the contract in inserting the stipulation that the vessel should make as many trips as possible was to prevent delays, as well by the towing of other vessels as by other causes. We may infer, from the fact that the two contracts were executed about the same time, and for the same purpose, that the parties expected the propeller named in one to tow the schooner named in the other, although there is no such express provision in either. The Oregon towed the Palms through the season. The libelant had full notice of it, and did not object. This is quite conclusive. The Marsh was not carrying freight for libelant, but she and the Palms seem to have been the regular tows of the Tuttle, the propeller mentioned in the original contract, for which the Oregon was substituted, and there is no denial that the libelant knew she was being towed by the...