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CULLIFORD v. GOMILA.

decided: October 29, 1888.

CULLIFORD
v.
GOMILA.



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

Author: Blatchford

[ 128 U.S. Page 150]

 MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court.

We are of opinion that the Circuit Court ought to have dismissed the libel, and that its decree must be reversed.

[ 128 U.S. Page 151]

     Negotiations for a charter of the vessel were opened in New Orleans, between De Wolf & Hammond and Gomila & Co., on the 16th of June, two days before the vessel arrived. Gomila & Co. then had a contract with Forestier & Co., made on the 7th of June, whereby the former sold to the latter a cargo of not less than 10,000 quarters and not more than 12,000 quarters, of 480 pounds each of corn, at 60 cents per bushel of 56 pounds, "on board seller's vessel, with freight at (6s.) six shillings per quarter, and to be shipped from New Orleans during the month of June, not later than the 30th (midnight), (seller's option)." In such negotiations with De Wolf & Hammond, Gomila & Co. insisted on a guarantee by the owners of the vessel that she should carry 10,000 quarters of 480 pounds each. Thereupon, on the 16th of June, a cable dispatch was sent by De Wolf & Hammond to Mr. Hammond of that firm, who was then in Europe and in communication with the respondents there, stating the terms of the offer which Gomila & Co. had made to charter the vessel, but that she must be guaranteed to carry not less than 10,000 quarters, and that it was proposed that the charterers should have the power of canceling the charter-party if the vessel was not ready to load cargo by the 25th of June. To this dispatch Mr. Hammond replied, on the 18th of June, agreeing to the terms, and directing that the guarantee of the carriage of the 10,000 quarters should be made provided the captain should agree to the quantity, but saying nothing as to the canceling clause. In view of these dispatches and of the previous negotiations, Mr. De Wolf, of De Wolf & Hammond, and the master of the vessel, and Mr. Gomila, of Gomila & Co., had a consultation, on the 18th of June, as to whether the vessel could carry 10,000 quarters of corn. At this consultation, Gomila and the master, both of them, reached the conclusion that the vessel would be able to carry 10,000 quarters, and Gomila advised the master to so cable the owners. This would be a reply to Mr. Hammond's cable dispatch of June 18th, in regard to the captain's agreeing to the quantity. A cable message was then made up by the master and De Wolf, from Gomila's code-book, in which the master said, "the vessel will carry 10,000 quarters of

[ 128 U.S. Page 152]

     grain, if we coal at Halifax." That message does not appear to have been sent, but, after it was prepared, Gomila "gave as his reasons for insisting on a guarantee," that is, a guarantee that the vessel should carry not less than 10,000 quarters, "the aforesaid contract with Forestier & Co., which was produced and read, and Gomila stated that he had no use for any vessel that would not carry 10,000 quarters of grain; that he must have a guarantee, and feared that if the vessel would not carry that amount the consequences would be serious; that the market had declined and was still declining, and the loss would be very heavy, because the buyer would have the right to reject the cargo if the conditions were not strictly fulfilled."

It is not found as a fact, that Gomila, in these negotiations and consultations, insisted upon any other guarantee than the one that the vessel should carry not less than 10,000 quarters of grain, of 480 pounds. Although he produced and read his contract with Forestier & Co., he did not insist that there should be a provision or a guarantee in the charter-party that the cargo "should be shipped from New Orleans during the month of June, not later than the 30th (midnight);" nor did he insist upon any undertaking or guarantee in the charter-party that the vessel should commence her loading of the grain at any particular time, or should finish it at any particular time, or that she should coal at any particular place, or that there should be any canceling clause in the charter-party.

On the 18th of June De Wolf & Hammond sent to Hammond, at Liverpool, a cable message stating that it was the opinion of the captain of the vessel that she could carry 10,000 quarters, coaling at Sydney, and that they had closed the charter-party according to the terms which it contains, stating those terms, (but not excluding Rouen,) subject to the owner's approval. To that message De Wolf & Hammond received, on the 19th of June, from Hammond an answer accepting on behalf of the respondents the offer, excluding Rouen, and the charter-party was then entered into, on the 19th of June.

It contains a provision that the "steamer is guaranteed to carry not less than ten thousand quarters, of 480 lbs." It contains

[ 128 U.S. Page 153]

     no provision as to the time when the loading of the grain shall commence, or when it shall be completed, or when the grain shall be shipped. It contains a provision that the vessel shall "have liberty to call at any ports for coal or other supplies;" and one (Article 13) that sixteen running days, Sundays excepted, are to be allowed the charterers, if the steamer shall not be sooner dispatched, for loading and discharging, and ten days on demurrage, over and above the said lay days, at six pence sterling per gross register ton per day. The net register tonnage was stated in the charter-party to be 1090, or thereabouts. The blank in Article 14, that the charters should have the option of canceling the charter if the vessel should not be ready to load at New Orleans on or before a specified day, was not filled in, and no canceling provision was inserted. By Article 15, the lay days were to commence the day after the steamer was declared ready to receive cargo, and had been passed by the surveyor of grain vessels, and written notice had been given by the master to the charterers, that is, written notice of the readiness of the vessel to receive cargo, and of her having been passed by the surveyor of grain vessels.

It is stated, in the fifth finding of facts, that the canceling date of the charter-party, that is, some date to be filled into the blank left in Article 14, "was not fixed, because Gomila & Co. waived it, as the ship was in port and they had confidence in the ability and willingness of the master to get the ship ready in time." Gomila & Co., by waiving the insertion of such date, abandoned all claim to insist upon the right to cancel the charter-party if the vessel should not be ready to load by a day specified, so as to enable them to comply with the requirement in their contract with Forestier & Co., as to the time named in that contract for the shipment of the grain. Although the contract with Forestier & Co. was produced and read in the consultation and negotiation had before the charter-party was signed, no day for the ...


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