der chapter 11 of the Revised Statutes of versed a decree of the District Court for the the United States for the District of Co- District of New York in favor of the libellumbia, under which these proceedings lant in an action to recover an unpaid bal[248] were instituted and *have been prosecuted, ance of freight, and remanded the cause, if they now desire to avail themselves of with directions to dismiss the libel. Rethat right. They may prefer to forego that versed, and the decree of the District Court right; and they may prefer no longer to affirmed. contest the propriety and justice of the assessments. If they so elect, the court will, of course, enter the proper order or decree in the cause. If, on the other hand, they elect further to contest the matter according to law, they should have the opportunity to do so. This court, therefore, should not now direct any final order or decree to be entered by the court below in the premises. See same case below, 47 C. C. A. 222, 108 Statement by Mr. Justice Shiras: *This action was begun by the filing, on [249] May 27, 1899, of a libel in the United States district court for the eastern district of New York, by Anton Mencke, the master of the British ship Benlarig, against a cargo of sugar that had just been delivered "The order appealed from, and only so from the vessel, to recover an unpaid balfar as appealed from, will be reversed; and ance of freight due for conveying the sugar the cause will be remanded to the supreme from Java to New York. The receivers of court of the District of Columbia, with di- the cargo, the claimants in the action, had rections to vacate such part of said order, deducted from the freight the cost of lightand for such further proceedings in the ering the cargo from the dock where it had cause according to law as may be right and been discharged to the claimants' refinery, just." which was above the Brooklyn Bridge. The It thus plainly appears that the decree ship had been ordered by the claimants to appealed from was neither in form nor in-proceed directly to the refinery, but was unable to do so because the height of her masts tention a final one. Accordingly, and for was such that she could not pass under the the reasons given in the case of Macfarbridge. land v. Brown, 187 U. S. 239, ante, 159, 23 Sup. Ct. Rep. 107, recently decided, and where a similar question was considered, the motion to dismiss must be sustained. The appeal is dismissed. tered a decree in favor of the libellant JanThe district court, per Judge Thomas, enuary 18, 1900. 99 Fed. 298. The claimants appealed to the United States circuit court of appeals for the second circuit, and that court on April 16, 1901, reversed the decree of the district court, and remanded the cause, with directions to dismiss the libel. 47 C. C. A. 222, 108 Fed. 89. On May 13, 1901, a writ of certiorari was A CARGO OF JAVA SUGAR, ex-ship "Ben- granted, and the cause was brought to this larig;" James N. Jarvie et al., Claim-court. 181 U. S. 620, 45 L. ed. 1031, 22 ants. Sup. Ct. Rep. 946. ANTON MENCKE, Petitioner, บ. (See S. C. Reporter's ed. 248-257.) Shipping-deduction from freight-expense The cost of lightering a vessel's cargo to the [No. 90.] So far as the conditions and exceptions of the charter are pertinent to the selection of the place of discharge, the claimants, as purchasers of the bills of lading and the charter party, are to be regarded in no other or better position than if they had been charterers originally, instead of assignees with notice. Carver, Carriage by Sea, 3d ed. p. 160; The charterer will be presumed to know The words "in a customary place and manner qualify the words, “in such dock,” Argued November 13, 1902. Decided De- and are evidently intended to apply to cases where, as in England and Holland, docks Dall'Orso v. Mason, 3 Sc. Sess. Cas. 4th Cas. 38; Pyman Bros. v. Dreyfus Bros. L. R. 24 Q. B. Div. 152; Carver, Carriage by Sea, 3d ed. § 624 b. A vessel is not bound to lighter cargo in order to get to the port or place of discharge, nor to enter a port to load if she would be compelled to lighter cargo in order to leave. The Alhambra (1881) L. R. 6 Prob. Div. 68; Reynolds v. Tomlinson [1896] 1 Q. B. 586; Shield v. Wilkins, 5 Exch. 304; The Nifa [1892] Prob. 411; The Gazelle, 128 U. S. 474, 32 L. ed. 496, 9 Sup. Ct. Rep. 139; Hayton v. Irwin, 4 Asp. Mar. L. Cas. 212. The terms of the contract require that the place designated for her discharge must be a safe one for her, and one where she may discharge always afloat. Atkins v. Fibre Disintegrating Co. 2 Ben. 381, Fed. Cas. No. 601. The Arbuckle dock would not have been less accessible if there had been a bar at a considerable distance from it, causing too shallow water for the vessel. The Gazelle, 128 U. S. 474, 32 L. ed. 496, 9 Sup. Ct. Rep. 139. Where, by a charter party, a ship is to be brought to a particular dock, or as near thereto as she may safely get, and she is prevented from getting to her primary destination by any permanent obstacle other than an accident of navigation, the shipowner is entitled to damages for the detention by reason of the charterers' refusal to receive the cargo at the alternative place of delivery, although the obstacle which prevented her from getting into the docks (viz., their crowded state), was not an obstacle endangering her safety. Williams v. Theobald, 8 Sawy. 445, 15 Fed. 465. An obstruction in the air, which bars access to the place designated for the discharge, quite as effectively prevents it from being safe for the ship as if the obstruction were a sand bar or any other obstacle below the water. Goodbody & Co. v. Balfour, W. & Co. 8 Asp. Mar. L. Cas. 503. The expense of lighterage was one that the consignee stipulated to pay. Carr v. Austin & N. W. R. Co. 4 Woods, 327, 14 Fed. 419; The Nifa [1892] Prob. 411. In face of explicit provisions, no evidence of a custom for the ship to pay lighterage would be admissible. The Nifa [1892] Prob. 411, 7 Asp. Mar. L. Cas. 324; Holman v. Wade, London Times, May 11, 1877; The Nifa, 7 Asp. Mar. L. Cas. 325; Hayton v. Irwin, L. R. 5 C. P. Div. 130, 4 Asp. Mar. L. Cas. 212; Lishman ▼. Christie, 6 Asp. Mar. L. Cas. 186, L. R. 19 Q. B. Div. 333; Brenda S. S. Co. v. Green [1900] 1 Q. B. 518. Mr. Wilhelmus Mynderse argued the cause and filed a brief for respondent: A person failing to perform an impossible condition precedent is not entitled to sue upon a contract, although he may sometimes be granted a quantum meruit in an action of quasi-contract. Paradine v. Jane, Aleyn, 27; Jacobs Credit Lyonnais, L. R. 12 Q. B. Div. 589; Cutter v. Powell, 6 T. R. 320; Hopper v. Burness, L. R. 1 C. P. Div. 137. By the words "customary place" was meant a place usual for vessels of like size and like cargoes, having the usual attributes which strangers to a vessel may assume she possesses, or are charged with knowing that she possesses. Devato v. 823 Barrels of Plumbago, 20 Fed. 510; The Port Adelaide, 38 Fed. 753; The Mascotte, 48 Fed. 119, 2 C. C. A. 400, 1 U. S. App. 253, 51 Fed. 606; The Boston, 1 Low. Dec. 464, Fed. Cas. No. 1,671. The vender of an article sold without opportunity of inspection, for a known purpose, warrants the article to be reasonably adapted for that purpose. Jones v. Just, L. R. 3 Q. B. 196; Dushane v. Benedict, 120 U. S. 630, 30 L. ed. 810, 7 Sup. Ct. Rep. 696. If a shipowner charters his vessel for a named port without qualification of any kind, he warrants that her cargo shall not be prevented from reaching that port by reason of the character or construction of the vessel; for his undertaking is to carry the cargo to the designated destination less prevented by the dangers of the seas or other unavoidable casualties." Hunter v. Prinsep, 10 East, 378. un Even where by the charter he reserves the alternative, "or so near thereto as the vessel can safely get," he is not excused by the draft of his vessel, or by any other circumstance of her construction, from taking the goods to within ordinary lighterage distance of the destination, i. e., within the ambit of the port. Schilizzi v. Derry, 4 El. & Bl. 873; Metcalfe v. Britannia Iron Works Co. L. R. 2 Q. B. Div. 423; Dahl v. Nelson, L. R. 6 App. Cas. 38. If he charters his vessel for a particular country without naming the port, the character of his vessel will not excuse him from delivering the cargo in a port where such cargoes are usually and generally delivered. Smith v. Davenport, 34 Me. 520; 1 Parsons, Shipping, 222. Nor will it excuse him where the port is named, but no particular district therein is excepted, from delivering the cargo in the district where such cargoes are usually and customarily discharged. The Port Adelaide, 38 Fed. 753; The Mascotte, 48 Fed. 119, 2 C. C. A. 400, 1 U. S. App. 253, 51 Fed. 606. The shipowners are in default under the literal requirements of the charter party. Hopper v. Burness, L. R. 1 C. P. Div. 137. *Mr. Justice Shiras delivered the opinion[250] of the court: Concerning the facts of the case there is no controversy. The ship Benlarig was chartered under a charter party dated London, July 1, 1898, between Watson Brothers, her owners, and Erdmann & Sielcken, merchants of Batavia. The vessel duly loaded a full cargo of sugar at Java, and then proceeded to Bar-ther provided that "all goods to be brought badoes. There she received orders to pro- to and taken from alongside of the ship, alceed directly to New York. This she did, ways afloat, at the said charterers' risk and arriving on or about April 14, 1899. Be expense, who may direct the same at the fore or about the time of the arrival of the most convenient anchorage; lighterage, if Benlarig at the port of New York the cargo any, to reach the port of destination, or deof sugar was sold and transferred, with the liver the cargo at port of destination, reaccompanying bills of lading, by the owners mains for account of receivers, any custom and consignees thereof, to Arbuckle Broth of the port to the contrary notwithstanders, sugar refiners. The agents of the ves-ing." sel gave notice to Arbuckle Brothers, on Four bills of lading were issued at the April 15, of the arrival of the vessel, and ports of loading, reciting the "shipment of asked for orders for a discharging berth, the sugar, and containing the identical conmentioning that the vessel's mast, being in ditions that the sugar was to be delivered one piece, would not admit of her going un-in the like order and condition at the port der the Brooklyn Bridge. Arbuckle Broth- of discharge as per charter party dated ers ordered the vessel to discharge at their London, 1st July, 1898 (the dangers of the refinery at the foot of Pearl street above sea excepted), unto Messrs. Winter & Smilthe bridge. Subsequently it was agreed that lie as agents, or to their assigns, he or they the cargo should be discharged at the West paying freight for the said sugar as per Central pier, Atlantic dock, below the charter party. *General average, if any, to[252] bridge, into lighters provided by Arbuckle be settled according to York-Antwerp rules, Brothers, without prejudice to the rights of 1890. All other conditions and exceptions, either party in respect to the payment of negligence and Harter act clauses included, the cost of lighterage. This cost amounted as per charter party above referred to, with to $1,466.12, which was paid by Arbuckle average accustomed." Brothers and deducted by them from the freight; and this suit is to recover the balance of the freight so deducted. The clear height of the highest span of the Brooklyn Bridge above mean high water is 135 feet. At dead low water there were not more than 140 feet in the clear at the highest point. The positions of the respective parties may be briefly stated thus: The libellant's contention is that, under clause 1 of the charter party, the right of the charterers or their assigns to select the dock for the discharge of cargo was subject to the limitation that such dock must be one that was safe and suitable for the ship as The Benlarig has three steel masts, built well as for the cargo, and one to which the up solid from the bottom to the top, and ship could proceed without hindrance by constructed of cylindrical steel plates, riv-permanent obstacles, which she could not eted together with internal angle iron pass without being mutilated, crippled, or braces. There was no way of taking any dismantled; and that, under clause 4 of part of the masts down. The mainmast the charter party, any lighterage necessary was 139 feet 10 inches above the deck; the to deliver the cargo at the port of destina[251]*foremast 136 feet 8 inches above the deck; tion must be paid by the charterers. and the mizzenmast was 129 feet above the deck; and the deck was from 7 to 8 feet above the load line of the vessel. The ship, therefore, required 145 feet of clear space in order to pass underneath the bridge. This was more than 5 feet in the clear of the highest point of the bridge when the tide was at the lowest point of the ebb. An additional margin of several feet would have to be allowed for safe passageway; and at the lowest water the Benlarig could not pass under the bridge without cutting off some 8 to 10 feet of her steel masts. The claimants contend that the discharging berth to which the Benlarig was ordered was safe for vessels of her class, and a customary place of discharge; and she should have proceeded there, or should have delivered her cargo there otherwise at her own expense; and that the lighterage clause of the charter party does not relieve the owners of the ship from their obligation to proceed to a designated dock above the bridge, and to there deliver the cargo. Another suggestion made on behalf of the claimants, namely, that the Benlarig, The charter party provided that the Ben- though unable to pass under the bridge. larig should load at Java and should pro- might have reached the Arbuckle dock by ceed to Barbadoes, "thence to Queenstown sailing around Long Island, and then or Falmouth (as directed by charterers or through the sound and Hell Gate to Brooktheir agents), for orders to discharge, al-lyn, should be first disposed of. It is, perways afloat, either at a safe port in the United Kingdom or on the continent of Europe between Havre and Hamburg (both included), Rouen excepted, or at option of charterers to order vessel from Barbadoes to proceed to Delaware breakwater for orders to discharge at New York or Boston or Philadelphia or Baltimore, or so near the port of discharge as she may safely get and deliver the same, always afloat, in a customary place and manner, in such dock, as directed by charterers, agreeably to bills of lading." Section 4 of the charter party fur haps, sufficient to say that no such allegation [253] to the expectations and understanding of liver the cargo, the expense thereof is all parties to this contract, or of any other chargeable to the receivers of the goods, recontract for the carriage of sugar from gardless of any local port customs. Java." The question that remains is, upon which of the parties the expense of the lighterage should fall. The answer, we think, must be found in a proper construction of the contract between them. We do not feel constrained to go into an extended consideration of the authorities cited in the briefs of counsel, but shall refer to two or three cases which, in some of their features, seem to be applicable. The case of The Alhambra, L. R. 6 Prob. Div. 68, was where the charter party provided that the vessel should go "to a safe port in the United Kingdom, . or as near It cannot be fairly claimed under the evidence that the expense that would have been occasioned to the owners of the vessel, if they had removed or taken down the thereunto as she could safely get, and almast, would have been trifling or inconsid-ways lay and discharge afloat. erable. There was some evidence that, in Lighterage (if any) always at the risk and a few instances, the topmasts of vessels had expense of the cargo." been taken down in order to permit them to pass under the bridge, and that the expense in each case was small. But those were cases of vessels with wooden masts, so constructed as to permit the topmast to be lowered. The Benlarig's masts were wholly of steel, and the testimony of her master was that if it became absolutely necessary to make the vessel pass beneath some obstruction lower than the top of the masts, the masts would either have to be cut or removed wholly out of the ship. What cost would have been caused by cutting or removing the steel mast does not appear. But the courts below concurred in regarding the mutilation or destruction of the ship's masts as a serious affair. The charterers gave orders to the vessel to proceed to Lowestoft and there discharge the cargo. The average high water in that harbor was about 16 feet, and average low water about 11 feet. The master objected to discharging in Lowestoft harbor, notwithstanding that the purchasers of the cargo gave him notice that they were prepared at their own expense to lighter the vessel in Lowestoft roads sufficiently to enable her to lie always afloat in Lowestoft harbor, if necessary, should her draft of water so require. The vessel went to Harwich as the nearest safe port and there discharged the cargo. The owners of the cargo brought suit for breach of contract, and offered evidence to show that it was the custom of vessels which were too deep to enter the port of Lowestoft to discharge a portion of their [255] cargo in the roads outside, and that it could be done with reasonable safety. The cargo owners recovered a judgment, but the court of appeals reversed, that court holding that Lowestoft was not a safe port for the vessel within the meaning of the charter party, and that the custom shown by the charterers was inadmissible. ter party provided that the vessel should In such a condition of affairs we think that resort to lighterage was natural and reasonable and within the obvious and fair import of the terms of the charter party. The clause, which is claimed to give the charterers or their assigns the right to appoint the dock in which to discharge cargo contains conditions that the port must be safe, and that the vessel must discharge, always afloat, either at a safe port or so near the port of discharge as she can safely get. This case was cited with approval by this It would not be a just exercise of the right court in The Gazelle, 128 U. S. 474, 32 L. to select a dock in getting to which the ves-ed. 496, 9 Sup. Ct. Rep. 139, where the charsel could not always be afloat or to which she could not safely get. A ship could not be said to be afloat, whether the obstacle encountered was a shoal or bar in the port over which she could not proceed, or a bridge under or through which she could not pass; nor could she be said to have The charterers tendered to the master for safely reached a dock if required to muti-signature bills of lading, ordering the veslate her hull or her permanent masts. sel to the port of Aalborg, in Denmark, as [254] *Any doubt that might be felt as to this the port of discharge, "to be landed at Aalconstruction of the clause will be relieved borg, or as near thereto as the vessel can by the express language of § 4: "All goods safely get." The master refused to sign the to be brought to and taken from alongside bills of lading for the reason that Aalborg of the ship, always afloat, at the said char- was not a safe port. Aalborg is situated in terers' risk and expense, who may direct Denmark on the Limiford inlet, about 17 the same to the most convenient anchor- miles from its mouth. Owing to a bar at age: lighterage, if any, to reach the port of the mouth of the inlet, there was a depth of destination, or deliver the cargo at port of water of only 10 or 11 feet. The draft of destination, remains for account of receiv- the Gazelle loaded was about 16 feet. The ers, any custom of the port to the contrary only place of anchorage for a vessel that notwithstanding." Here, again, is recog- cannot cross the bar is off the mouth of the nized the right of the ship to be "always inlet, where vessels were accustomed to disafloat." The anchorage directed must be charge into lighters. Thereafter the masthe "most convenient;" which must mean ter filed a libel for demurrage in the dis convenient as well for the ship as for the trict court of the United States for the disconsignees; and, finally, if lighterage istrict of Maryland, whose judgment, susnecessary, either to reach the port or to de- taining the libel and dismissing the cross libel of the charterers, was affirmed by the the ship could not reach it without cutting off or taking down her masts; and of that v. Nelson, L. R. 6 App. Cas. 38; The Al- of the same opinion. And Vaughn Wilhambra, L. R. 6 Prob. Div. 68. The char-liams, L. J., said: "On the findings of the terers insisted upon ordering her to the last award it is perfectly plain that in a port of Aalborg. The circuit court has commercial sense the port of Manchester 256 *found that Aalborg is in a fiord or inlet, was not a safe port for the Vanduara to go having a bar across its mouth, which it to." was impossible for the Gazelle to pass, either in ballast or with cargo; and that the only anchorage outside the bar is not a reasonably safe anchorage, nor a place where it is reasonably safe for a vessel to lie and discharge." This case is pertinent as holding that an overhead bridge which prevents access to the place designated for the discharge quite as effectively renders it unsafe for the ship as a sandbar or other obstacle under the water. The view of the circuit court of appeals, The charterers offered evidence to show that the construction put upon the charter that by the custom of trade between Balti-party by the district court was within its more and the Atlantic ports and the ports letter but not within its spirit, because “an of Norway and Denmark, Aalborg was rec- application to novel circumstances of clauses ognized as being, and understood to be, a intended for a different set of circumstansafe, direct port of Denmark, within the ces," we cannot accept. We are unable to meaning of the charter party. In respect see anything in the undisputed facts of the to which this court said: "Evidence of a case that warrants any other construction custom to consider as safe a particular of the language employed than that sugport, which in fact is not reasonably safe, gested by its ordinary meaning. would directly contradict the charter party, and would, therefore, be incompetent as matter of law." In Re An Arbitration between Goodbody and Balfour, Williamson, & Co. (4 Com. Cas. 119) the facts were that a cargo of wheat per the ship Vanduara had been sold in a contract containing the clause “shipped per Vanduara, sailed, or about to sail, as per bills of lading dated, etc., to any safe port in the United Kingdom of Great Britain and Ireland, or to Havre, or to Dunkirk, or to Antwerp, calling at Queenstown, Falmouth, or Ply mouth, for orders as per charter party, vessel to discharge afloat." The vendees de The decree of the Court of Appeals is reversed, and the decree of the District Court is affirmed, with interest thereon from the time of its entry. (See S. C. Reporter's ed. 258-270.) Contracts-reserved power to alter-amend clined to take the papers on the ground that A state statute fixing the rate of taxation on by the bills of lading the cargo was stated to have been shipped upon the Vanduara to discharge at a safe port in the United Kingdom, Manchester excepted," and that such bills of lading did not comply with the contract for delivery in any safe port in the United Kingdom. It was found in the special case stated for the decision of the court that "the Vanduara when loaded with the said cargo would have been unable to go up the Manchester ship canal to the Manchester decks, because the heads of her lower the gross receipts of a railroad company, [No. 43.] main and mizzenmasts would, have been Argued October 16, 1902. Decided Decem bigher than the limit fixed by the canal company's regulations for passing under the Runcorn bridge." The vendors argued that the addition to the bills of lading of the words, "Manchester excepted," was immaterial, inasmuch as Manchester, in any event, was not a "safe [257] port" in the sense of the bills of lading, as 187 U. S. ber 1, 1902. |