Tweedie Trading Co. v. New York & B. Dyewood Co.

• Decision Date: 07 November 1902
• Citation: 118 F. 492
• Parties: TWEEDIE TRADING CO. v. NEW YORK & B. DYEWOOD CO.
• Court: U.S. District Court — Southern District of New York

118 F. 492

TWEEDIE TRADING CO. v. NEW YORK & B. DYEWOOD CO.

United States District Court, S.D. New York.

November 7, 1902

Wheeler & Cortis, for libellant.

Butler Notman, Joline & Mynderse, for respondent.

ADAMS District Judge.

This is an action brought by the libellant to recover damages for an alleged breach of a charter party of the steamship Endsleigh dated January 29, 1901, providing for the transportation of 2000 tons, 10% more or less at vessel's option, of Quebracho Wood from Colastine, Argentine Republic, to New York. The contract at first provided for 1500 tons, with the same option, but the quantity was afterwards increased to 2000 tons. The libellant claims a loss in dead freight on 300 tons, which it is alleged the respondent was required to furnish to complete the cargo under the contract. It appears that the vessel reached Colastine about the 15th of May 1901, and after the loading progressed it was found that she could not take more than 1900 tons and pass over a bar a few miles below Colastine. After having called for the full cargo, which the respondent was able and willing to furnish at Colastine, she declined to receive more than the quantity loaded and having passed over the bar, she demanded that the balance of the cargo be lightered to her there. The respondent declined to comply with the demand and the vessel sailed with the partial load.

The contract provided, inter alia: 'The cargo, or cargoes, to be received and delivered within reach of the ship's tackles, at ports of loading and discharging, where steamer can always safely lie afloat; Lighterage if any to be at expense and risk of cargo,' the underlined part being written at the end of a printed clause. The libellant contends that it was entitled to have the full quantity furnished, even though it became necessary to lighter a part. The respondent contends that it was under no liability to do otherwise than deliver the quantity provided for at Colastine and if any lighterage became necessary it should be at the vessel's expense.

There can be no doubt that if the contract provided for the selection of a loading port by the charterer and contained a provision which required the vessel to go to such port 'or as near as she can safely go,' a clause frequently included in charter parties, the respondent would have been liable for the dead freight in this case, because such a contract contemplates the ability of the vessel to leave the port when laden according to its terms, and the burden of responsibility for the absence of a sufficient draught of water would fall upon the charterer. Bacon v Ennis (D.C.) 110 F. 404; Id. (C.C.A.) 114 F. 260. Where a loading port is not in mutual contemplation when the contract is made, a provision that the vessel shall only be required to go as near to a port selected by the charterer as safety permits naturally follows and the burden would then justly be upon the charterer to provide for any additional expense or loss consequent upon the ship being unable to depart from the selected port with the cargo provided for by the contract. Where the port is designated in the contract and there is a similar provision with respect to going near and the parties know, when making the contract, that a full cargo can not be loaded and get to sea, the rule is the same-- ...