Lovell v. Davis,
101 U.S. 541 (1879)

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U.S. Supreme Court

Lovell v. Davis, 101 U.S. 541 (1879)

Lovell v. Davis

101 U.S. 541


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by reason of the plaintiff's delay in presenting his vessel at New Orleans for receiving the cargo, the defendants had rescinded the contract, and were justified in doing so.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.

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