Wye Shipping Co. v. Hunter Benn & Co.
| Decision Date | 14 February 1924 |
| Docket Number | 1 Div. 297. |
| Citation | 211 Ala. 326,100 So. 475 |
| Court | Alabama Supreme Court |
| Parties | WYE SHIPPING CO., LTD., v. HUNTER, BENN & CO. |
Rehearing Denied May 22, 1924.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Action on the common counts and for breach of charter party by the Wye Shipping Company, Limited, against Hunter, Benn & Co. Judgment for defendant, and plaintiff appeals. Reversed and rendered.
Inge & Bates, of Mobile, for appellant.
Smiths Young, Leigh & Johnston, of Mobile, for appellee.
The Wye Shipping Company (appellant here) is a corporation with its principal place of business in London, England. Hunter, Benn & Co. (defendant to this action) was a corporation engaged in the export lumber business at Mobile, Ala. In November, 1920 the plaintiff was the owner of the steamship called the "Wye Tempest," and in said month entered into a written charter party with the defendant-under the terms of which the said steamship was hired to the defendant for the purpose of proceeding from London to Mobile, at which latter point it was to receive from the charterers a full cargo of pitch pine sawn sleepers. This cargo was to be transported from London, and there delivered at Christie's Wharf, Charlton, the freight money to be pounds sterling>15.10.0 per St. Petersburg standard hundred of 165 cubic feet measure.
Under certain provisions of the charter party the charterer was allowed a certain number of days in which to load the vessel, called lay days, and for each day the vessel was detained by the charterer beyond the lay days the charterer was due to pay demurrage to the vessel at the rate of pounds sterling>>200 per day. On the other hand, however, if the charterer did not consume all of the lay days, and the vessel was sooner loaded, the days so saved by the charterer are called dispatch days, and for which it was obligated to pay the charterer the sum of pounds sterling100 per day so saved in loading the vessel. This is called dispatch money.
Under section 14 of the charter party the charterer was entitled to 2 1/2 per cent. address commission on the estimated amount of the freight, and in making up their account against the vessel the defendant fixed the estimated amount of freight at pounds sterling15,428.10.6. In loading the vessel there was saved 23.4875 days which, at pounds sterling100 per day, placed the indebtedness of the ship to the charterer at the sum of pounds sterling 2348.15.0.
This account discloses that this dispatch money was converted into dollars by the charterer at the rate of $4.86 2/3 to the pound, which was the par rate of exchange, making the sum of $11,430.58. The address commission which amounted to pounds sterling385.14.3 was likewise changed into dollars at the par rate of exchange for $4.86 2/3, making the sum of $1,877.12. The dispatch money was then again converted into pounds at the current rate of exchange of $3.75 to the pound, making pounds sterling3,048.3.0. By such a change therefore the dispatch money was increased from pounds sterling2348.15.0 to pounds sterling3048.3.0, or an increase of pounds sterling699.8.0, which at the current rate of ex-exchange of $3.75 amounted to an increase of $2,622.69. The address commission was likewise increased pounds sterling 113.18.9, which at the current rate of exchange amounted to an increase of $427.17. The total increase by reason of the difference between the par and the current rate of exchange was pounds sterling713.6.9, or the sum of $3,049.86. This account being presented to the master, he objected to this rate of exchange, but, after some discussion with the defendant's representative, signed the account under protest. The total amount of this account on January 22, 1921, was pounds sterling5425.17.0. The defendant prepared the bill of lading, and had indorsed thereon the following:
The steamship with its cargo duly arrived at London, Christie's Wharf, Charlton, about February 8, 1921. The cargo appears to have been delivered to Christie & Christie, who paid the freight after deducting therefrom the pounds sterling>5,425.17.0 receipted on the bill of lading and embraced within the account advanced by the defendant. The bill of lading shows that the cargo was assigned to Price & Pierce, Ltd., "or their assigns, he or they paying freight." Plaintiff again protested against the items as to dispatch money and address commission, as increased by reason of the difference between the par and current rate of exchange, but of no avail; and hence this litigation.
The complaint consists of common counts, including account for money had and received, and also No. 7 rested upon a breach of the charter party as to payment of the freight, heretofore referred to. The cause was tried before the court without a jury; the evidence being both by deposition and oral testimony, resulting in a judgment in favor of the defendant-from which the plaintiff has prosecuted this appeal. As previously shown, the only questions involved relate to the dispatch money and address commission; and these only to the extent as they were increased by reason of the difference between the par and current rate of exchange.
The defendant insists that, as no time was fixed by the charter party for the payment of the dispatch money and address commission, this indebtedness became due immediately, citing Peck v. Ashurst, 108 Ala. 429, 19 So. 781; and that, as the charter party fixed no place of payment, the debt was payable at Mobile, the residence of the creditor. Mayberry v. Leech, 58 Ala. 339, among other authorities cited. Proceeding upon this line of reasoning the defendant argues that this money was due immediately upon the vessel being loaded, and payable at Mobile in pounds sterling; and that, as the parties had the right to fix by their contract a payment of such medium as they chose, the plaintiff in this action could not insist upon a right to discharge the debt in United States currency; that the par value of a pound sterling was fixed by Act of Congress at $4,8665. U.S. Comp. Stat. § 6537.
We have considered this argument with due care, but find it at variance with our construction of the contract which the parties have entered into. As said by the Supreme Court of the United States in Crossman v. Burrill, 179 U.S. 100, 21 S.Ct. 38, 45 L.Ed. 106, charter parties, like other contracts, "must be construed according to the intent of the parties as manifested by the whole instrument, rather than the literal meaning of any particular clause, taken by itself." The provisions of the charter party, which are here pertinent, are reproduced in the report of the case.
Section 4 reads as follows:
"Sufficient cash for steamer's ordinary disbursements to be advanced the master by the charterers at port of loading if required by him, at current exchange subject to 2 1/2 per cent. commissions and also cost of insurance, such advance to be indorsed upon the bills of lading on account of freight, but no draft to be given for such advance."
By section 9 it is provided that the freight is to be paid in cash without discount, less the advance, if any, on delivery of the cargo; and this section likewise refers to the current rate of exchange.
It is insisted by counsel for the plaintiff that the dispatch money and address commission should be construed as coming within...
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