1. A charter party for the voyage of a vessel from New Orleans
to certain designated ports contains a recital that said vessel is
"now lying in the harbor of New Orleans," while in point of fact
she was then at sea. In an action by the master of the vessel upon
the charter party, the jury was instructed that if the defendants
knew at the time of executing it that the vessel was at sea, the
words "now lying in the harbor," being merely a representation,
should be regarded as of no significance.
Held that there
was no error in the instruction.
2. The charter party fixed no definite time for the vessel to be
at New Orleans ready to receive her cargo.
Held that if
the master used reasonable diligence in bringing her to that port,
the defendants were bound by the contract.
3. where the bill of exceptions does not show what answer was
made to a question put to a witness, error cannot be assigned upon
the question.
This action was brought against Lovell & Bailey on a charter
party entered into by them March 14, 1871, for a voyage of the
American ship
Adorna, "now lying in the harbor of New
Orleans," from the port of New Orleans to Liverpool, between Havre
and Hamburg, both inclusive, or Cronstadt. It was agreed between
the parties that
"this charter shall commence when the vessel is ready to receive
cargo at the place of loading and notice thereof is given to the
party of the second part or their agent, and to end on a true
delivery of cargo at the port of discharge."
The defense was that by reason of the plaintiff's delay in
presenting his vessel at New Orleans for receiving the cargo, the
defendants had rescinded the contract, and were justified in doing
so. A verdict and judgment were rendered for the plaintiff, the
master of the chartered vessel. The defendants sued out this writ
of error.
The remaining facts, and the instructions to the jury, are set
forth in the opinion of the Court.
MR. JUSTICE MILLER, after stating the facts, delivered the
opinion of the Court.
The charter party contains a recital that at the date of its
Page 101 U. S. 542
execution, the vessel was lying in the harbor of New Orleans,
while the bill of exceptions shows that she was then at sea. The
court charged the jury that if at the time the defendants signed
the charter party, they knew that the ship was at sea, the words
"now lying in the harbor of New Orleans" should be regarded as of
no significance.
That language in the charter is not a warranty or contract, but
a representation, and if the charterers knew certainly that the
vessel was not there, of course they were not deceived or misled by
the recital, which was probably part of a printed form that
attracted no attention. The evidence on the subject of this
knowledge is not in the record, and it is therefore to be presumed
in favor of the action of the court that it was full and complete.
There was no error in this instruction.
The court also charged the jury that as the charter party fixed
no definite time for the vessel to be at New Orleans ready to
receive the cargo, the master was bound to use reasonable diligence
in bringing her to the port, and was bound to use no more. If he
did, the defendants were bound by the contract. If he did not use
such diligence, they were not. To this charge also defendants
excepted.
To the charge in the abstract there could be no just
objection.
But plaintiffs in error argue in effect that it was not
warranted by the testimony.
The evidence tended to show that the master was compelled to
cross the bar at the mouth of the Mississippi and to sail
one-fourth of the way up the river to the city without the aid of a
steam tug (which was the usual mode of carrying such vessels up to
New Orleans) because no such tug was in sight, and that then a tug
which offered itself at the request of the defendants was refused
because of the exorbitant charge asked for the remaining part of
the voyage. The bill of exceptions does not set out all of the
evidence, and what is found there is very meager, especially on
this point.
Under what precise circumstances, the master refused the aid of
the tug which offered its services, to what extent its offer was
exorbitant, how it came to be sent there by defendants and then
refused to serve without excessive compensation, are all unknown to
us, but were probably clear to the jury. The
Page 101 U. S. 543
charge by the court that the master was bound to use due and
reasonable diligence furnished the general rule of law. If there
was anything in reference to his refusal to employ the tug which
made a more definite instruction proper, counsel for defense should
have asked for it. But none was prayed.
We are not able to see, therefore, any error in the charge of
the court.
A question was asked the master as to what he would have done if
the tug boat had offered to take him up the river at the usual
rates, to which defendants objected, and the question being
permitted they excepted.
The answer is not given, and we cannot tell, therefore, whether
it was favorable to plaintiff or defendants. It is settled law, at
least in this Court, that under such circumstances, it is the
evidence given which constitutes the error, if there be one, and
this must be shown by the answer.
Nailor v.
Williams, 8 Wall. 107.
We see no error in the record.
Judgment affirmed.
