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THE AUGUST

September 8, 1933

THE AUGUST; A/S D/S MATHILDA
v.
BETHLEHEM STEEL CO.



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This suit is brought to recover the sum of $852.70, deducted by the charterer's agent from gross freight payable to the libelant under a charter party between the libelant, as owner of the steamship August, and Manganexport, G. m.b. H., as charterer. The deduction was made under clause 2 of the charter party as a charge for the use of shore cranes employed in unloading a cargo of ore at Baltimore, Md. The charter party is dated December 11, 1931, and was for the carriage of a cargo of ore from Nicolaieff, in Soviet Russia, to Baltimore, Md.

Freight was to be paid at the rate of $3.10 per ton 20 hundredweight delivered. The total weight of the cargo transported and delivered was 8,527 tons, and the gross freight thereon at the charter party rate of $3.10 per ton amounted to $26,433.70, from which, according to the charter party, the respondent or its agents or the charterer or its agents were entitled to make deductions for advances, discharging expenses, etc., so that only the net freight after such proper deductions was payable to the libelant. In computing and paying the net freight, the charterer's agents deducted 10 cents per ton for the use of respondent's shore cranes, and the sole question is whether or not the deduction of the said sum of $852.70 was proper under the charter party.

 In the stipulation of facts on which this suit was tried, it is stipulated as follows: "If libellant is obligated to pay cranage in the circumstances of this case, in addition to the 55 cent rate for discharging, libellant admits that 10 cents per ton would be a reasonable rate. But libellant denies that it was obligated to pay any cranage whatsoever."

 This removes any question of the reasonableness of the charge and leaves only the construction of the contract to determine whether a charge for cranage was proper.

 So much of clause 2 as is necessary for consideration as originally printed reads as follows: "Ship paying for discharging one shilling per ton on quantity delivered, also cranage if delivered in a Scottish port."

 Before execution, the charter party was changed by striking out the words "one shilling," and interlining in handwriting in black ink the words, "55 cents U.S. currency," and by striking out the words, "discharged in a Scottish port," and interlining in typewriting in red ink the words "shore cranes are employed," thus making the clause in the charter party as executed read as follows: "Ship paying for discharging 55 cents U.S. currency per ton on quantity delivered, also cranage if shore cranes are employed."

 This clause seems to be free from ambiguity, and should be construed as it plainly reads, and of course most strongly against the one who prepared the contract, and also as intending to change the printed form of contract by the interlineations in handwriting and typewriting, which must be considered as overruling any portions of the printed contract which are inconsistent with them.

 It seems to me to have been the intention of the parties, as expressed in the charter party, that the ship should pay the expense if shore cranes are employed.

 Libelant contends that the charterer was only entitled to be reimbursed for such charges as it might have to pay, but the contract does not so provide.

 The duty of discharging is a duty resting on the ship, and the ship furnishes winches and men to operate them, but in the contract in question provision is made for paying a certain sum by the ship to the charterer's agents for discharging and also cranage if shore cranes are employed.

 If the ship's winches were used, the steam and men would be furnished at the expense of the ship. What reason is there if the charterer's agent employs its shore cranes why it should not be paid its reasonable expenses for the steam used, labor employed in operation, and the wear and tear of the cranes?

 This would be so even if we assumed the correctness of libelant's argument, that the rate to be paid when shore cranes were employed, not being fixed, the charterer or its agent could not make money at the expense of the shipowner, but is limited to reimbursement, because no question is presented in this case as to the reasonableness of the charge of 10 cents a ton, as that has been stipulated as reasonable if any charge is to be allowed. Lowry v. United States Shipping Co. (D.C.) 84 F. 685, cited by libelant, is not in point.

 That a charge has not been made for shore cranes employed by the same charterer's agent for cargoes discharged at Baltimore from vessels in a majority of cases where the vessels of various owners had been chartered by the same charterer, even in cases where such provision was contained in the charter party, does ...


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