The Thomas P. Sheldon

• Decision Date: 24 January 1902
• Docket Number: 1062.,1060
• Citation: 113 F. 779
• Parties: THE THOMAS P. SHELDON. THE S. L. WATSON.
• Court: U.S. District Court — District of Rhode Island

113 F. 779

THE THOMAS P. SHELDON. THE S. L. WATSON.

Nos. 1060, 1062.

United States District Court, D. Rhode Island.

January 24, 1902

Carver & Blodgett, for libelant.

F Dodge and H. Putnam, for claimants.

BROWN District Judge.

These libels are for breach of contract contained in a charter party dated July 26, 1899, providing for the carriage of five full cargoes of coal from Lambert's Point, Norfolk, Va to Providence, R.I., by two barges,-- the Thomas P. Sheldon and the S. L. Watson. The contract states: 'It is understood that the above five cargoes are to be delivered in Providence previous to October 1st, 1899. ' In part execution of this contract, one cargo was carried by the Sheldon, and freight was paid. The libelant seeks damages for failure of the barges to carry the remaining four cargoes.

The first question relates to the authority of Stanwood, as agent, to sign the charter. I find as a matter of fact that on July 26th-- the date of the charter-- Stanwood was general agent of these barges, and was duly authorized to execute the charter. The libelee contends that his authority did not begin until August 1st, and was limited to making charters for single trips. I find against it both as to the date of the beginning of his authority and as to its scope. The testimony as to a limitation upon the number of voyages the agent could contract for was not satisfactory or convincing. But whether Stanwood's authority originated in the document of July 24th, or in previous arrangements, or on August 1st, does not seem to be of vital consequence. His authority as general agent extended over the period from August 1st to October 1st, within which the contemplated voyages were to be made, and within which the agent with full authority, entered upon the performance of the contract.

The next question is whether one or two cargoes were delivered under the contract. I find, as a fact, that but one cargo was delivered,-- 1,037 tons by the Sheldon. There is positive evidence that the cargo of 907 tons was carried by the Watson in pursuance of a previous oral charter. The testimony of Slater, agent of the Providence Gas Company, shows clearly that two distinct contracts were made for coal at different rates of freight. It is argued for the libelee that the Virginia Iron, Coal & Coke Company had existing engagements under two contracts for the delivery of 6,300 tons of coal to the Providence Gas Company; that, as the charter provides for five trips of about 1,250 tons each, this would have been an adequate tonnage to fulfil both contracts; and therefore that the oral charter, if one was made, was merged in the written charter. But this inference is not strong enough to overcome positive testimony to the contrary. It is entirely reasonable to suppose that the five-trip charter was simply for the conveyance of the 5,000 tons of coal purchased by the Providence Gas Company on its second contract. Though the charter states that the Sheldon and the Watson have a capacity of 'about 1,250 tons each,' this was manifestly much more than the actual carrying capacity of either of the barges. The cargo actually delivered by the Watson on the previous contract was 907 tons; that of the Sheldon, 1,037 tons. Gilchrist himself testified that the capacity of the Watson was from 1,000 to 1,100 tons; and of the Sheldon, 1,100 tons. It is apparent, therefore, that five trips would have been insufficient, by more than 800 tons, to complete the carriage of the coal on both contracts. It is much more probable that five voyages were contracted for to carry the 5,000 tons than that they were contracted for to carry 6,300 tons. There is a strong preponderance of evidence to the effect that an oral charter was made which had no relation to the 5,000 tons, and that this charter was not merged in the written charter. Though this matter has been argued at some length, it is difficult to see what possible advantage could result to the libelee by adopting its argument. If, on its theory, we increase the amount delivered, we must consistently apply the same theory, and increase by a larger amount the quantity which it is bound to deliver. If we assume that the owner agreed to carry 6,250 tons of coal in five voyages, and that it has delivered two cargoes,-- one of 907 tons, and the other of 1,037 tons,-- amounting to 1,944 tons, it has, according to its argument an undelivered remainder of 4,306 tons. The libelant claims that it is in default only to the amount of 4,024 tons.

The next matter to consider is the contention that the libelant prevented performance by its unreadiness to deliver coal. It is satisfactorily proved by the evidence of Wilmer that throughout the entire period from August 1st to October 1st, with the exception hereafter to be mentioned, there was an ample supply of coal on hand to furnish full cargoes to either the Watson or the Sheldon. Nothing was done by the libelee until the barge Georger reported on September 18th, being tendered as a substitute. Her turn did not arrive, however, until after October 1st, the date specified in the contract for the completion of the delivery of the five cargoes. The owner was then already in default, and in no condition to take technical advantage of breaches by the charterer after that date. While there was a partial shortage of coal from the 29th of September to the 4th of October, this would not have resulted in any special delay,-- probably not more than two or three days; nor did it absolve the owner from the consequences of its negligence in not earlier reporting vessels for the remaining four cargoes. Upon the evidence, the charterer was ready and willing to make substantial performance upon its part, and the withdrawal of the Georger was not justified under the circumstances existing, and renders her tender of no avail.

It is contended that the detention of the Georger was due to the preference of steamers arriving for bunker coal; but the evidence as to the rule of the port that steam vessels are entitled to this preference is not contradicted, and is not met merely by characterizing such preference as extraordinary. The owners were chargeable with knowledge of the usage of the port. Randall v. Sprague, 21 C.C.A. 334, 74 F. 247.

I am of the opinion that there is no evidence to sustain the contention that the barge Page was tendered in substitution.

I find that the owner, the Lake Shore Transit Company, is liable in damages for its breach of contract to the amount of the increased freight for the substituted tonnage, to wit, 95 cents per ton on 4,024 tons, amounting to $3,822.80; and also to the amount of $985.81, paid by the libelant for demurrage, not due to its fault, on the substituted vessels; making a total of $4,808.61, with interest from the date of the filing of the libel.

I see no reason for reducing the damages by the application of the rule of Warren v. Stoddart, 105 U.S. 230, 26 L.Ed 1117, which requires reasonable effort to reduce damages. The delay in procuring other vessels, caused by negotiations and efforts to induce the libelee to perform its legal obligation, was, under the circumstances, both reasonable and prudent. Furthermore, it was necessary for the libelant to modify its contract with the gas company in consequence of the inability to get barges. It proceeded with reasonable diligence to do this, and to get the best terms for sailing vessels. The rule of Warren v. Stoddart requires reasonable conduct on the part of one whose legal rights have been violated; but it should not be invoked by a defendant as a basis for critical examination of the conduct of the injured party, or merely for the purpose of showing that the injured person might have taken steps which were wiser or more advantageous to the defendant. Reasonably prudent action is required; not that action which the defendant, upon afterthought, may be able to show would have been more...