United States Navigation Co. v. Black Diamond Lines

• Decision Date: 09 March 1942
• Docket Number: 35.,No. 34,34
• Citation: 124 F.2d 508
• Parties: UNITED STATES NAVIGATION CO., Inc., v. BLACK DIAMOND LINES, Inc.
• Court: U.S. Court of Appeals — Second Circuit

124 F.2d 508 (1942)

UNITED STATES NAVIGATION CO., Inc., v. BLACK DIAMOND LINES, Inc.

Nos. 34, 35.

Circuit Court of Appeals, Second Circuit.

January 5, 1942.

Writ of Certiorari Denied March 9, 1942.

Before L. HAND, AUGUSTUS N. HAND, and C. E. CLARK, Circuit Judges.

Carpenter & Stevenson, of New York City (John Tilney Carpenter, of New York City, of counsel), for appellant.

Hunt, Hill & Betts, of New York City (John W. Crandall, of New York City, of counsel), for appellee.

Writ of Certiorari Denied March 9, 1942. See 62 S.Ct. 805, 86 L.Ed. ___.

AUGUSTUS N. HAND, Circuit Judge.

The charter hire was at the rate of $26,000 per month and each vessel made one voyage to South Africa and returned, the Black Hawk to Norfolk, Va., and the Black Tern to Baltimore, Maryland. The voyage of the first vessel took from February 15, 1940, to May 2, and the voyage of the second from March 7 to June 15. Concededly there was opportunity under the original oral charters for two round voyages, only one of which libellant was granted under the terms of the written charterparties that were imposed upon the latter against its will. The exceptions to the libels on the ground that each failed to state a cause of action involved the assumption of the truth of the facts stated in them. Under this assumption it seems probable that the respondent was anxious to shorten the length of the charters and that the new charters it forced upon the libellant were only signed by the latter because no other course was open if it was to have any use of the vessels, and it was under a duty to mitigate damages.

The District Judge held that in the execution of the charterparties the libellant "abandoned its rights under the oral contract as signed," sustained the exceptions and dismissed each libel. While the situation is not free from doubt, upon the record before us this result seems inequitable and we think the decrees may be and ought to be reversed and the causes should proceed to issue and trial.

In our opinion the signed charterparties were without consideration and even if, because of the provisions of the New York Statute, Section 33(2) of the Personal Property Law, Consol. Laws, c. 41, no consideration was necessary, they were not a substitute for the prior oral charters because they only covered a part of the subject-matter embraced in the original agreements and the latter remained in effect to the extent that they were not included in the written charters. The notifications which accompanied the latter were addressed by the appellant to the appellee and read as follows:

"In view of your January 15th letter and your other statements that you will not let us have the use of these vessels when their current charters expire unless we sign the charter parties in the form demanded by you — which do not correctly state the periods and trading limits which we agreed upon — we return them herewith duly signed by us, under protest, and reserve our rights in the premises."

The documents that were signed differed from the oral charters only in limiting the term to a single round voyage, whereas the oral ones gave the libellant the option of obtaining a term of five months which would enable it to perform two voyages. Under the oral agreements the libellant was only bound to take the vessels for a minimum of two months and had the option to take them for three months longer. The withdrawal in the written charters of the chance that the libellant might exercise the option was no consideration on the appellee's part for that possibility was not a right which the owner possessed. It may be said that there was a consideration arising out of implied agreements to rescind the oral charterparties and to substitute the written charters therefor. But we think that the written charters did not wipe out or rescind the oral agreements. They only embodied promises to carry them out to the extent of one voyage for which the appellee was already bound, instead of for two voyages and pro tanto were wholly consistent with the oral charters. In view of the appellant's notices of protest and reservation of rights which accompanied the signature of the written charters its seems unreasonable to say that the execution of the charters signified an abandonment of the option for two voyages granted by the oral agreements or effected more than an agreement to accept a charter for a single voyage and a promise to pay hire pro tanto for what was the minimum requirement of the earlier agreement.

It is argued that United States ex rel. International Contracting Co. v. Lamont, 155 U.S. 303, 15 S.Ct. 97, 39 L.Ed. 160, is contrary to our analysis of the facts in the causes under consideration. There, however, the question of failure of consideration does not seem to have been argued and it was not discussed in the opinion of the court. Moreover, the second contract covered the entire subject-matter. In Parish v. United States, 8 Wall. 489, 19 L.Ed. 472, which is also relied on by appellee, consideration was not discussed. It was also doubtful in each case whether the first contract was binding at any time. In MacLaren v. Windram Mfg. Co., 287 Mass. 221, 191 N.E. 347, an oral contract was treated as still existing so long as a subsequent written contract was not inconsistent with its terms, and recovery was allowed on the oral agreement. See, also, Edgar v. Joseph Breck & Sons Corp., 172 Mass. 581, 583, 52 N.E. 1083; Corey v. Woodin, 195 Mass. 464, 81 N.E. 260; Endriss v. Belle Isle Ice Co., 49 Mich. 279, 13 N.W. 590. For the foregoing reasons, it seems apparent that the signed charters were not substitutions for the oral agreements and were not intended as rescissions thereof, and that consideration therefor was lacking. We add that the protest and reservation of rights by the appellant demonstrate that there was no complete...