Davison v. Von Lingen
113 U.S. 40 (1885)

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U.S. Supreme Court

Davison v. Von Lingen, 113 U.S. 40 (1885)

Davison v. Von Lingen

Argued December 12, 1884

Decided January 5, 1885

113 U.S. 40

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF MARYLAND

Syllabus

A stipulation in the charter party of a steamer, that she is "now sailed, or about to sail, from Benizaf, with cargo, for Philadelphia," is a stipulation that she has her cargo on board and is ready to sail.

A charter party with the above stipulation was made on the 1st of August, in Philadelphia. The steamer was at Benizaf, in Morocco, only three-elevenths loaded, and did not sail for Philadelphia till August 7, and left Gibraltar August 9. Before signing the charter party, the charterers asked to have in it a guarantee that the steamer would reach Philadelphia in time to load a cargo for Europe in August, but this was refused. They declined to have inserted the words "sailed from, or loading at Benizaf." On learning when the steamer left Gibraltar, they proceeded to look for another vessel. The unloading of the steamer at Philadelphia was completed September 7, but the charterers repudiated the contract: Held,

(1) The stipulation was a warranty or a condition precedent, and not a mere representation.

(2) Time and the situation of the vessel were material and essential parts of the contract.

(3) The charterers had a right to repudiate the contract, and to recover from the owners of the steamer the increased cost of employing another vessel.

The facts which make the case are stated in the opinion of the Court.

MR. JUSTICE BLATCHFORD delivered the opinion of the Court.

On the first of August, 1879, a charter party was entered into between the owners of the steamship Whickham and the firm of A. Schumacher & Co., composed of George A. Von Lingen, Carl A. Von Lingen, and William G. Atkinson, of which the parts material to this case are as follows:

Page 113 U. S. 41

"Grain Charter Party, ______ Steamer"

"PHILADELPHIA, August 1, 1879"

"It is this day mutually agreed between T. H. Davison, Esq., owner of the Br. steamship Whickham, of London, built 1876 at Newcastle, of 1,124 net tons register, or thereabouts, classed 100 A 1 in Br. Lloyds, now sailed or about to sail from Benizaf with cargo for Phila., and Mess. A. Schumacher & Co.; that the said steamship, being tight, staunch, and strong, and in every way fitted for the voyage, with liberty to take outward cargo to Phila. for owners' benefit, shall, with all convenient speed, sail and proceed to Philada. or Balto. at charterers' option, after discharge of in ward cargo at Phila., or as near thereunto as she may safely get, and there load afloat from said charterers, or their agents, a full and complete cargo of grain, and/or other lawful merchandise, excluding petroleum or its products. Vessel to load under inspection of either American or British Lloyd's surveyors at her expense, and to comply with their rules. The cargo to be brought to and taken from alongside at merchants' risk and expense, not exceeding what she can reasonably stow and carry over and above her cabin, tackle, apparel, provisions, and furniture, and, being so loaded, shall therewith proceed to Queenstown, Falmouth, or Plymouth, for orders to discharge at a safe port in the United Kingdom, or on the continent, between Bordeaux and Hamburg, both included (Rouen excluded), also Holland excluded, or as near thereunto as she may safely get, and deliver the same, always afloat, on being paid freight as follows: six shillings and three pence sterling per quarter of 480 lbs. delivered, of wheat or maize, other grain or stowage goods to pay in full and fair proportion thereto, as customary at loading port: ten percent extra if discharged on the continent, as ordered from port of call in the United Kingdom, as above; if ordered to a direct port of discharge on the continent, as above, on signing bills of lading, the rate to be the same as to the United Kingdom for orders. In full of port charges and pilotages (the act of God, restraints of princes and rulers, the dangers of the seas and navigation, accidents to boilers, machinery, etc., always excepted),

Page 113 U. S. 42

freight being paid on unloading and right delivery of the cargo, in cash, without discount or allowance. . . . Fifteen (15) running days (if the vessel be not sooner dispatched), commencing when vessel is all ready and prepared to receive cargo, and written notice thereof given to charterers, to be allowed for loading and discharging vessel, and, if longer detained, charterers to pay demurrage at the rate of forty (

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