Weisser v. Maitland — 5 N.Y. Super. Ct. 318

Majority

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Weisser v. Maitland.

Headnote

In a charter party for a voyage from New York to Liverpool, it was agreed that the charterer should be allowed for the loading and discharging of the vessel, “ lay days as follows: to load, twenty days from the 12th inst., the owner guaranteeing to have the vessel ready by that timeand by a subsequent stipulation, the charter party was to commence when the vessel was ready to receive cargo, and notice thereof should be given to the charterer: Held, that the readiness of the vessel by the day named was a condition precedent to the charterer’s liability to accept and employ her.

Held, also, that the charter party was to commence, whenever notice was given that the vessel was ready to receive cargo, provided she were ready on or before the day stipulated.

Time is often the essence of the contract, in commercial transactions; and where the time fixed in a charter party for the vessel to be ready, appears to be essential, and the words are plain, it must be construed a condition precedent.

(Before Oaklet, Ch. J., and Vandemoel and Samdford, J.J.)

Nov. 16 ;

Nov. 24, 1849.

Demurrer to pleas. The declaration was upon a charter party, between the plaintiff, as the agent for the owners of the brig Linnea, and the defendant, (who executed the same under seal, in the name of Maitland, Phelps & Oo., of which film he was a member,) dated April 7th, 1847, by which, among other things, the plaintiff chartered the vessel to the defendant for a voyage from Hew York to Liverpool, and engaged that she should be provided with every requisite, and should, with some trifling exceptions, be at the sole use and disposal of the defend

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ant during the voyage. The vessel was to take a cargo of corn in bulk. The defendant engaged to furnish to the vessel a full cargo, and to pay at certain rates specified in the charter party, for the freight. It was further agreed, that the defendant should be allowed for the loading and discharging of the vessel at the respective ports, as follows, that is to say: “ lay days, to load, twenty days from. Monday, the 12th inst.,” the plaintiff “ guaranteeing to have the vessel ready by that time, and to discharge with dispatchand in case of detention, the defendant was to pay demurrage at thirty dollars a day. It was subsequently provided, that the charter party should commence, when the vessel was ready to receive her cargo at the place of loading, and notice thereof given to the defendant, or his agent.

The declaration averred, that the vessel was ready to receive cargo at the port of Mew York, her place of loading, by the 12th day of April, in the charter party mentioned. And that on the 13th of April, notice to that effect was given to the defendant, and he was requested to furnish the vessel with the cargo of corn in bulk, and to commence the voyage and charter party. That the cargo was not furnished, nor would the defendant employ or load the vessel, or dispatch her upon the voyage so agreed upon, by reason whereof the vessel was detained on demurrage, for the space of thirty-one days, and was prevented from earning the freight agreed upon, and the plaintiff had been subjected to various heavy expenses, for all of which he claimed damages to four thousand dollars.

The defendant interposed three pleas. The first averred, that the vessel was not ready to receive the cargo mentioned in the charter party, by the 12th day of-April, as provided therein, and that thereupon the defendant forthwith gave notice to the plaintiff of his abandonment of the voyage. The second plea contained the same averment, and, in addition thereto, an averment that no notice of any such readiness was given to the defendant by the 12th day of April, in consequence of which the defendant abandoned the loading of the vessel, and the employment thereof, and gave notice thereof to the plaintiff. The .third plea averred, that on the 12th of April, the firm of Maitland, Phelps & Co., in the charter party mentioned, had a

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cargo of corn in bulk, ready for shipment, and to receive which, the charter party had been made by the defendant, and which defendant was ready and willing to ship and load on board the vessel, and would have done so, if the vessel had been in readiness, of which the plaintiff then had notice, but that the vessel was not, by the 12th day of April, ready to receive the same on board for the voyage. ■ Wherefore the defendant abandoned, &c., as before.

The plaintiff demurred to the pleas, and assigned various causes; among them, that the pleas amounted to the general issue.

F. B. Cuttmg, for the plaintiff.

I. The pleas are bad in substance, because—1. The fact alleged that the vessel was not ready to receive cargo by Monday, the 12th April, is not an answer to the right of action. There is nothing in the charter party which makes the hiring dependent upon the condition, that the vessel should be ready to receive cargo by the 12th day of April. The time when the vessel was to be ready, was a distinct and independent covenant. If it were a condition, it relates only to the time when lay days were to commence. (Abbott on Shipp. 326, 342 [250, 266]; 10 East. 555; 1 M. & M. 297; Constable v. Clobare, Palm. 397; Bornman v. Duke, 1 Camp. 377; Hall v. Cazenove, 4 East. 477; Ritchie v. Atkinson, 10 Ibid. 295; Storer v. Gardner, 3 M. & Sel. 308; Galloway v. Jackson, 3 Scott’s N. R. 768; S. C. 3 M. & G. 960. 2. The pleas are also bad in point of form, because they amount to the general issue. The allegation, that the vessel was not ready to receive cargo by the 12th of April, merely puts in issue a similar averment in the declaration, and ought, (if the issue was material,) to have concluded to the country, or with a traverse. (1 Chitty Pl. 557; 19 John. 309 .)

D, Lord, for the defendant.

I. The plaintiff specially warranted the time when the loading should commence, and it was the basis of the arrangement;

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and no remedy in damages would be adequate. There is no other provision which prescribes the commencement of the charter. It was to commence as soon as notice was given that the vessel was in readiness, and at all events by the 12th of April.

II. The breach of the warranty of the plaintiff was sufficient to entitle the defendant to leave the vessel to the plaintiff; and the pleas show such right properly exercised by the defendant. (Glaholm v. Hays, 2 Mann. & Gr. 257; Abbott on Shipp. [249,] 325; O live v. Booker, 1 Exch. R. 416.)

There is no doubt that these pleas are bad in form, under the old system of pleading, as being equivalent to the general issue. But under section 17 6 of the code, a defect of this character is no longer to be regarded; and it would be proper, under the provisions of that section, to amend the pleas by striking out the conclusion with a verification, and inserting one to the country.

The allegation contained in the second plea, of want of notice to the defendants that the vessel was ready by .the twelfth of April, is entirely immaterial. If the time of the readiness of the vessel to receive her cargo is to be regarded as a condition precedent, it is a sufficient defence, if she were not ready by that date.

The main question which the parties wish us to decide, is whether this provision is a collateral covenant, or a condition precedent.

The principle applicable to cases of this character, as the same is gathered from the authorities, seems to be, that every charter party is to be construed according to the clear intent of the parties, if that can be collected from the face of the instrument.

The stipulation in the charter party in question, in reference to time, seems to be introduced as a parenthesis in the agreement by which the defendant was to have twenty lay days from the twelfth of April, the plaintiff guaranteeing that the vessel-should be in readiness at that time. It is quite apparent, that if these words stood alone, they would be considered, without doubt, as equivalent to a warranty, and a positive stipulation, that the vessel should be ready at the time specified. It is con

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tended, however, that the words relate only to the lay days, and that those were to commence on the 12th of April. But such cannot be the true construction of the instrument, because it is apparent, on that view, that the lay days might be defeated altogether. If the lay days were to commence on the 12th of April, and the agreement is to be construed that the vessel was to be ready in a reasonable time, that time might not elapse until the whole twenty days had expired. This is clearly the consequence.

The plaintiff refers to the other clause of the charter party, by which it was provided that the charter should commence when the vessel was ready to receive cargo at the place of loading, and notice thereof was given to the defendant; and he argues that the meaning of the whole instrument is, that the vessel was to be prepared for the voyage in a reasonable time, and then she should load and the lay days commence. This last clause is in the printed part of the charter party in the usual form; the former, guaranteeing the time, is written in the agreement, and in accordance with a familiar rule, must govern the construction of the instrument.

Aside from this, the liability was to commence when notice should be given, and if notice were given before or by the 12th of April, the party was bound to proceed. Time was of the essence of the.contract-, and is often so in commercial transactions. The success of the enterprise often depends upon dispatch. It was plainly the intent of these parties to be ready by the twelfth of April, at all events. Hie cases show that the great principle to be considered is the intent of the parties, and where the time is essential, and the words of the charter party are plain, as is the case here, we cannot doubt that the agreement, in reference to the day when the vessel was to be ready, is to be regarded as a condition precedent.

Judgment for the defendant on the demurrers, with leave to the plaintiffs to reply on payment of costs.