A vessel was chartered to carry a cargo of oranges from Palermo
to Boston. The words "captain engages himself to take the northern
passage" were written into the printed blank. The cargo was badly
damaged, and the charterers libeled the vessel to recover for the
loss. The court below found that "northern passage" appeared from
the proof to be a term of art, unintelligible without the aid of
testimony, that the evidence concerning it was conflicting, and
that it was immaterial to decide it, as the claimant was entitled
to the least strict definition, and the actual course of the vessel
came within that definition.
Held that this was error;
that if the term was a term of art, it should have been found by
the court, and that if there was no passage known as "northern,"
the vessel was bound to take the one which would carry it in a
northerly direction through the coolest waters into the coolest
temperature, and the court should have ascertained from the proof
what passages between Gibraltar and Boston vessels were accustomed
to take, and should have determined which of them the contract
permitted the vessel to choose.
This is an appeal in admiralty, and presents the following
facts:
The barque
John H. Pearson was chartered to carry a
cargo, consisting mostly of oranges, for the libellants, from
Palermo, Sicily, to Boston, Massachusetts. The charter party
contained the words, "captain engages himself to take the northern
passage," inserted at the instance of the libellants, for the
benefit of the cargo, and written into the printed blank. The cargo
was badly damaged on the voyage, and this suit was brought to
recover for the loss. The controversy is as to whether the vessel,
in going from Gibraltar to Boston, took "the northern passage."
The court has found that
"Shippers of fruit consider it of very great importance for the
preservation of the cargo that it be kept in as cold a temperature
as possible, short of the freezing
Page 121 U. S. 470
point, and have been accustomed for many years to instruct
masters to take a northerly course,"
and after setting forth other facts, stated as "conclusions of
law" the following:
"1. The term 'northern passage' appears, in view of the
testimony of merchants and seamen introduced on both sides, to be a
term of art, and is, when taken by itself, without the aid of such
testimony, unintelligible."
"The testimony introduced by the libellants tended to show that
the phrase meant a passage from Gibraltar to the Great Banks, and
thence direct to Boston, keeping as much to the north as possible
during the entire passage; that anything between that and the
southern passage was the middle passage."
"That introduced by the claimant tended to show that it meant
anything north of latitudes 30� to 35� or 36�, or of the southern
passage, and that the middle passage was anything between the
southern passage and the northern, as described by the respective
witnesses. It was admitted that the southern passage was in the
trade winds."
"2. Upon this testimony, the court, thinking that the true
meaning of the term is very doubtful, does not consider it
material, and does not undertake to decide whether a preponderance
of the evidence favors one of the above definitions or another, and
rules that the claimant is entitled to the least strict definition,
and that, as the course of the barque comes within such definition,
there is no deviation."
The libel was dismissed, and from a decree to that effect this
appeal was taken. The opinion of the circuit court is reported in
14 F. 749.
Page 121 U. S. 472
MR. CHIEF JUSTICE, after stating the case, delivered the opinion
of the Court.
As the libellants deemed the agreement to "take the northern
passage" of sufficient importance to have a printed form changed,
so that it might be incorporated in express words into the charter
party, and this "for the benefit of the cargo," which was
perishable, it is evident that the words used had some meaning
which indicated clearly to the minds of the contracting parties the
direction the vessel was to take on her way from Gibraltar to
Boston. It is also evident from the fact that the vessel was bound
to take the northern passage, that the parties understood there was
more than one passage which vessels were in the habit of taking in
making that voyage, according as their bills of lading or their
charter parties required or the circumstances made desirable. It
implies that there were one or more other passages which those
engaged in the trade knew by other names or other
Page 121 U. S. 473
descriptions. What "the northern passage," as used in this
contract, means, therefore, is either a question of fact or a
question of construction applicable to understood facts.
If it is, as the court below says it appears to be, a term of
art which, taken by itself, without the aid of the testimony, is
unintelligible, then its meaning in "the art" -- the trade -- is
one of the material facts in the case on which the rights of the
parties depend, and it should have been found and put into the
findings of fact which the circuit court was required by law to
make. The statement of the court, now in the record, implies that
there is in fact some particular passage between Gibraltar and
Boston which those engaged in that trade know as "the northern
passage." If there is, then that is the passage the vessel was
bound to take, and it was error in the court to decide that its
determination, according to the preponderance of the evidence, was
immaterial, for the choice of passages was matter of obligation,
not of convenience merely.
If in point of fact there is no passage to which the name or
description of "the northern" has been given in the trade, then the
question becomes one of construction, as applied to the known facts
of the business. The inquiry is not as to which passage would be
the quickest, or even the best, or which another contract would
require of another vessel, but which is "the northern passage"
within the meaning of this contract. The evident purpose of the
libellants was to keep the vessel as far as possible in the coolest
of the passages that those engaged in the trade were accustomed to
take, because it is found as a fact in the case that a cool
temperature is necessary to the preservation of the cargo, and that
the coolest water is north of the Gulf Stream, owing to the fact
that there is a cool current between it and the American coast
moving in an opposite direction.
Under these circumstances, if the testimony failed to show that
any particular passage had acquired in the trade the name of "the
northern," it was error to rule that the vessel might voluntarily
take any other of the known or accustomed passages than one which
would carry it in a northerly
Page 121 U. S. 474
direction through the coolest waters and into the coolest
temperature. That this was the expectation of the parties is shown
by the fact that the stipulation as to the passage was made "for
the benefit of the cargo," the preservation of which required that
it should be kept "in as cool a temperature as possible short of
the freezing point." The court should have ascertained from the
evidence what passages there were between Gibraltar and Boston
which vessels were accustomed to take, and then determined which of
them this vessel was allowed by its contract to choose as "the
northern."
The decree is reversed, and the cause remanded for further
proceedings in conformity with this opinion.
