Wirgman's Adm'rs v. Mactier , 1 G. & J. 150 ( 1829 )

Buchanan, Ch. J.

delivered the opinion of the Court.

This is an action of assumpsit brought to recover a sum of money retained by Charles 8f Peter Wirgman, who were the owners of the ship William Wilson, on account of freight, out of -the proceeds of that part of the cargo, shipped on board that ship, which belonged to the appellee; and the.question is, whether freight was earned or not.

Four bills of exceptions were taken at the trial. The appellee who was the plaintiff below, offei'ed to pr’ove, that the ports of Constantinople on the Dardanelles, of Salónica on the Morea, and of Gibraltar, all on the continent of Europe, were in the year 1810, open to American vessels loaded with colonial produce, an objection to the admissibility of which testimony, made on the part of the appellants, was overruled by the court. This forms the subject of the first bill of exception, and involves the construction of the contract, between the appellee and Charles &f Peter Wirgman

It is stipulated in the charter party, that the master shall proceed with the ship from Baltimore for the island of Sylt; “ and if, on arrival there, it can he ascertained that the ports of Hamburg and Bremen are open to the admission of American vessels, that the said master shall forthwith proceed to which-soever the said ports, the supercargo and himself shall think, most for the interest of the freighters. .But should the said ports of Hamburg and Bremen continue closed, then the said cargo shall be lauded at Sylt if permitted; and in case of refusal to permit the same to be landed at Sylt, that then the said master shall proceed therewith to such permitted port on the JYorth Sea or the Baltic, as he and the supercargo shall order and direct. And should the Baltic be also closed against the admission of American vessels, in such case the said master shall proceed with the said cargo to such other port, as he and the said supercargo may in their discretion think most proper. And that on the arrival of the said ship at the port of delivery, the said master shall and will make a right and true discharge of the said cargo, to the supercargo, or to such other agent, factor or consignee of the freighters, as they may direct, agreeably to the bills of lading to be signed for the same, and so end and finish the said intended voyage, &c.” and the freighters covenant to “pay freight for said cargo agreeably to bills of lading to be signed for the same, provided the said cargo be discharged at a port in the North Sea; but if delivered at any port in the Baltic, not higher than Kiel or Colberg, then &c. to pay unto the owners an advance of &c. on the amount of freight money stipulated in the said bills of lading. If higher than Kiel or Colberg, and not higher than Koningsburg, a like advance of &c. and if higher than Koningsburg a like advance of &c., and should the Baltic be shut, a further advance to be settled by arbitration, &c.”

This is not an action upon the charter party, and it is not perhaps necessary to inquire what would bn the proper construction of that instrument if it stood alone. But taken together with the bill of lading, to which it refers, it seems very clear ' that the permitted port' contemplated, was a port in the North Sea or the Baltic.

- One of the stipulations in the charter party is, that in case of a refusal to permit the cargo to be landed at Sylt, the master shall proceed therewith to such permitted port in the North Sea or'the Baltic, as he and the supercargo shall order and direct. And another is, that on the arrival of the ship at the port of delivery, the master shall discharge the cárgo, to the supercargo, or to such other agent, &c. of the freighters, as they may direct, agreeably to the hills of lading to he signed for the same, and so end and finish the said -intended voyage, with a covenant by the freighters to pay freight agreeably to the hills of lading to be signed. And the hill of lading for the goods of the appellee, states the ship to be hound from Baltimore for Sylt and a permitted port in the North Sea or Baltic, and that the goods are to be delivered at such permitted port, unto Messrs. David Parish Co. Hamburg, or their assigns, he or they paying freight, &c. at certain stipulated rates.

Here then is a charter party, in which the owners engage to deliver the cargo at a permitted port in the North Sea, or the Baltic, to the agent of the freighters, agreeably to the hills of lading- to be signed, and so to end the intended voyage; and the freighters to pay freight agreeably to the hills of lading, with certain stipulated advances.

And a hill of lading of the goods of the appellee, in which, they are contracted to he delivered at a permitted port in the North Sea, or the Baltic, to Messrs. Parish &/• Co. Hamburg, or their assigns, at certain rates of freight therein mentioned.

So far then as concerns the goods of the appellee, it is'a contract for the delivery of them at a permitted port in the North Sea, or the Baltic, to the Messrs. Parish fy Co. Hamburg, or their assigns, at the rate of freight mentioned in the bill of lading, and the advances stipulated in the charter party, and the ending of the voyage by such a delivery of the goods at such permitted port. The charter party by the references to the bills of lading, in the provisions for the delivery of the cargo to the agent of the freighters, “agreeably to the bills of lading to be signed,” and the payment of freight “ agreeably to the bills of lading to he signed,” adopted, and made a part of it, the stipulation in the bill of lading of tbe appellee’s goods, for the delivery of them at a permitted port in the North Sea, or the Baltic, to the Messrs. Parish fy Co. Hamburg, or to their assigns, and for the payment of freight; and is the same, as if instead of referring to the hills of lading, it had expressly stipulated, that the master should deliver the goods of the appellee, at a permitted port in the North Sea, or Baltic, unto Messrs. David Parish Co. Hamburg, or to their assigns, for the freight mentioned, and so end and finish the said intended voyage •, that is, to end and finish the voyage, as respected the interest of the appellee, by a delivery of his goods to the Messrs Parish & Co. or their assigns, at a permitted port in the North Sea or Baltic.

There were a number of persons interested in the cargo besides the appellee; and the different provisions in the charter parly, with the engagement to deliver the cargo agreeably to the hills of lading, (in the plural,) were probably introduced to meet the views and interests of the ábveral shippers, according to the stipulations of their respective hills of lading, and whatever latitude may have been given in any of the other bills of lading, that for the goods of the appellee, limited the contract in relation to them to a port in the North Sea, or Baltic, and surely the parties were competent so to contract.

Then comes the memorandum or agreement of the 'i 4th of May, 1810, entered into by tbe owners, which is in these words: “We hereby agree and acknowledge, that the sundry goods shipped by you onboard the ship William Wilson, Peter Wirgman, master, are to be lauded in a permitted port on the continent of Europe, (meaning that they are hot to he landed on the Island of Sylt,) before the freight, is earned. But should the whole of the continent be shut, the freight with an addition, (as arbitrators may determine,) will be earned, should the property he landed in England, agreeable to the custom of the country.” And this agreement is supposed so to alter and control the voyage, as to extend the contract between the Wirgmans and the" appellee to any port on the continent of Europe.

This cause was once before in this court, on an appeal from the judgment of the Baltimore County Court, and on a reversal of that judgment, was sent back under a procedendo—and it is probable that, that court has been misled by the loose language of the opinion delivered on that appeal, and has supposed, that the contract of the parties was held by this court, to relate not merely to ports in the North Sea or the Baltic, but to any port on the continent of Europe, no matter where, or in what sea, as is now insisted upon here. And perhaps, looking to the opinion alone, that would be its construction; but it was certainly not so intended. Having delivered the opinion myself, I can speak confidently on the subject, and regret that it was not delivered in more guarded and restricted terms.

But the idea, that the contract looked for the destination of that part of the cargo at least, which belonged to the appellee, to any permitted port on the continent of Europe, other than a port on the North Sea or Baltic, was not suggested‘in the argument, which was particularly, and with great force, directed to' the political state of affairs in Europe, in reference to what was commonly called the continental system, and the advanced and inclement season of the year, which it was contended forbid an attempt by the master’to navigate"the Baltic; and with the danger of capture and detention by privateers, justified his proceeding to Hull, and there delivering the cargo. - The whole course of the argument which was a very elaborate one, pointed to a state of things having no connexion with, or relation to, other ports on the continent of Europe, not in the North Sea or Baltic. The question whether the contract contemplated any other permitted port on the continent of Europe, than one in the North Sea■ or the Baltic, was not raised, nor thought of by the court, at least by myself; but looking only to those seas, and construing the engagements between the parties, with reference to the known state of affairs in Europe, as likely to operate upon the governments on the continent, having ports in those seas, and not the governments without the influence of that state of things, and having ports in other seas, the broad terms, the whole of the parts on the continent of Europe, to be found in the opinion delivered, were too carelessly perhaps taken from the agreement, and were not meant to be used with reference to all the ports of the continent, no matter where or in what seas, as the ports intended by the contract, at some one of which the goods were to be delivered, before freight could be earned: but to the ports only on the continent of Europe, in the Worth Sea or the Baltic, according to the subject matter then in the view of the court. And that we think, is the only legitimate construction that can be given to the papers at that time, as now before us.

Looking to the historical facts and occurrences of the time, to which we may judicially look, and cannot well shut our eyes against them, it is manifest that, the voyage was undertaken, and the charter party, the bill of lading, and the agreement entered into, with a view to the political state of affairs in Europe, and should be construed with a view to that state of affairs; and so interpreted, it is not difficult to perceive, that the permitted port on the continent of Europe, in which the goods were, by the agreement to be landed before freight could be earned, was intended to be a permitted port in the Worth Sea or the Baltic other ports on the continent of Europe, such as Constantinople,. the ports in the Morea and Gibraltar not being affected by the system, the state of things, in the view of the parties, and the ports of the continent in the Worth Sea and the Baltic being' alone within their influence.

The question is not what would be the correct construction of the agreement of the 14th of May, 1810, if it stood alone, without any index pointing to the intention of the parties, that could* be properly looked to; or any thing in the context, to restrict the understanding of the general terms used, according to their plain and popular meaning, to a mere special and peculiar sense but it is apparent that, that agreement relates to the voyage,, contemplated by the charter party and bill of lading of the appellee’s goods, and the acknowledgment that they are to be landed in a permitted port on the continent of Europe, before freight is earned, has reference to, and so far recognizes the contract arising from those instruments, and should therefore be construed in connexion with them, and that contract, looking fof the destination of the appellee’s goods, to a permitted port in the North Sea or Baltic, the agreement speaking in relation to that contract,'must be understood, by the terms “on the continent of Europe,” to mean on the continent of Europe, in the North Sea or Baltic, and to have used those terms only for the purpose of showing, that the goods were to be landed on the continent, as distinguished from the Island of Sylt, and that interpretation is given to it, by the clause immediately following in the agreement itself, “ meaning that they are not to be landed on the Island of Syltf that is, that the terms “ on the continent of Europe” mean not bn tlxe Island of Sylt, or denote, that they were not to be landed on the Island of Sylt, but on the continent only, before freight could be' earned, and were used for that, and no other purpose. And the words in the last clause, “ but should the whole of the continent be shut,” have reference to what goes before, and must be construed to mean the continent, in the same restricted sense, in which it is before spoken of, that is, the whole of the continent of Europe on the North Sea and Baltic— and cannot mean any part of the continent, not contemplated in the preceding part of the agreement. Under this construction of the agreement, taken in connexion with the charter party and bill of lading to which it relates, the contract between the parties is, that the goods shipped by the appellee shall not be landed on the Island of Sylt, but at some permitted port on the continent of Europe in the North Sea or Baltic, before any freight shall be earned; but in the event of the whole of the ports on the continent of Europe in the North Sea and Baltic being shut, then, and not otherwise, the owners shall be entitled to freight on the goods being landed in England, with a stipulated addition.

The ports of Coxistantinople, on the Dardanelles of Salónica, in the Morea, and of Gibraltar, were not the permitted ports contemplated by the contract; proof therefore of their being open in the year 1810, to Jlmerican vessels loaded with colonial produce, was irrelevant and inadmissible, and the testimony of John Donnell ought to have been rejected,

By the term shut, as used in the contract, is meant an occlusion by the municipal regulations of the country, and unless in that sense of the term, all the ports on the continent of Europe in the JYorth Sea and Baltic were closed against the admission of the goods of the appellee, on board the ship William Wilson, the vessel could not earn freight by going to England; nor then, unless the instructions given by the appellee in his letter of the 8th of May, 1810, to Peter Wirgman, the master, were complied with.

It has been contended, that if agreeably to the orders and decrees of France, Prussia, Russia, Sweclen and Denmark, all uncertificated colonial produce was prohibited from entry into any of the ports on the continent, in the JYorth Sea or Bailie. It was incumbent on the appellee to have furnished the captain of the ship with a certificate of origin of that part of the cargo which belonged to him; and that if he neglected to do so, the captain fulfilled the contract of affreightment by proceeding to Hull, and there delivering the cargo. But we think otherwise, and that the want of such a document alone, was not sufficient to justify the captain in proceeding to Hull, and there delivering the appellee’s goods. All parties were aware of the unsettled state of affairs in Europe, and the difficulties that would probably attend the landing of the cargo at any of the contemplated ports in the JYorth Sea and Baltic. The charter party and bill of lading show it; the agreement and letters of instruction prove it. The goods were shipped, and the voyage undertaken, with the expectation of having risks and difficulties to encounter, and the contract and instructions were framed accordingly. The ship owners knew when they signed the agreement, which was subsequent to the bill of lading, that no certificate of origin was on board, and with that knowledge, and a knowledge of the character of the cargo, made their engagement with a view to the difficulties that might attend the landing of such a cargo, under such circumstances; and can no more avail themselves of the want of that document, because of the prohibition merely of uncertificated colonial produce, than they could have done of the fact, that the cargo consisted of colonial produce, if the prohibition had been of all such produce, uncertificated or otherwise. If in the latter case, they could not have sheltered themselves under the pretext alone, that the cargo consisted of colonial produce, and was therefore prohibited from entering any'of the contemplated ports, having made their contract in relation to such a cargo; neither can they in this case, avail themselves of the circumstance alone, that the appellees part of the cargo consisted of uncertificated colonial produce, and was therefore prohibited, having made their contract in relation to goods in that known predicament. The same, reason would seem to apply in one case, as.in the other; the prohibition in both being of the goods on board. In one, of goods without a certificate of origin; in the other, either with or without such a certificate, and there is no evidence in the cause to show that it was incumbent on the appellee to have provided such a paper, to enable him to resist the claim of the ship owners to freight, or that he was required to do so. The shipment was made on a calculation of chances, and the knowledge, advice and assistance of the Messrs, Parish fy Co. Hamburg, were evidently much relied upon for the success of. the enterprise. And to obtain the benefit of their counsel and assistance, the appellee, in his letter of instructions to Peter Wirgman, the master, informs him, that he had requested them to consult with him on the further destination of the ship, and the disposal of his interest on board, in the event of an entry being denied at Hamburg; directing him to advise with them, as to what was best to'be done for his interest; and constituting him his agent, if the state of affairs should be such as to prevent his communicating with them; in which case, he tells him to open his letter of instructions to them, to which he refers him for his government. These instructions the master was bound to obey, it was his duty diligently to seek and to pursue, the advice and directions of Messrs. Parish fy Co. and if agreeably to the orders and decrees of the governments of France, Prussia, Russia, Denmark and Sweden, the goods of the appellee were prohibited from entering the ports on the continent of Europe, in the JYorth Sea and Baltic, yet there might have been such occasional suspensions of them, or relaxation in the enforcement of them, as to render the information and advice of Messrs. Parish fy Co. of the first importance. And it would seem to have been in such a state of things, that the appellee wished to have the benefit of their superior intelligence and advice, and not when it could be bad, to trust to the discretion of the master, who could not be so well informed. If there was a port on the continent of Europe, in the North Sea or Bailie, open to the admission of the appellee’s goods, the master was bound to go there, before freight could be earned; it was the contract of the owners with the appellee, and ho had a right 1o staud upon it. And the master could not entitle them to freight by going to England, and there delivering the goods, cither contrary to, or without the advice of .Messrs. Parish, $/■ Co. unless he was cut off from all communication with them by the unsettled state of aflairs at the time. What then was the coursrpursued by the master ? In his letter to Messrs, Parish Co. of the 18th of July, 1810, he informed them of the capture of the ship by a Danish privateer, and that he was taken into a Danish port for adjudication; spoke of his having property on board belonging to the appellee, and asked advice and information, but said nothing of the consignment of the goods to them. That letter does not appear to have been received. In hk letter of the 14th of September, 1810, he informed them, that he had craved their advice in his preceding letter, respecting Ms future designation, but added, that a move extensive knowledge of prize cases induced him to believe, that if he was in possession of it, it would be of no advantage. Thus virtually dispensing with any advice from them upon the subject; and upon that assumption he seems to have acted, as there is nothing to show, that he ever afterwards sought any advice or infimmition from them in relation to the destination or disposition of the appellee’s goods. In that letter he advised them, that a considerable part of the cargo was to their address, without saying; to whom it belonged, or giving any account of the amount or character of the goods. On the 13th oí' October, 1810, he received an answer from them to his letter of the 1.4th of September, dated the 2d of October, and received in eleven days after it was written. In this letter, they requested him to inform them, who were the shippers of the consignment to their address, and to forward any letters he might have for them, with any other information that might be useful, suggesting difficulties respecting the future destination of the ship, in the event of her being liberated, but that there was time enough to correspond on that subject, after being informed of the cargo on hand, and at the same time telling him, that several of their friends had proceeded from Gottenburg to Carlsham, there to unload their cargoes, &c. On the 14th of October he acknowledged the receipt, on the preceding day, of that letter, informed them for the first time of the quantity and description of the goods to their address, and that they were shipped by the appellee, and that he was in daily expectation of his sentence, of which they might depend upon being immediately advised. On the 30th of October they answered that letter; told him they were anxiously awaiting the result of the proceedings in the court of prize; referred him to the public papers for the late French and Danish decrees, and told him that under existing circumstances, it was difficult to point out a proper port of discharge, so many changes were taking place, but that if any further alterations should take place, they would keep him informed. In his letter of the 8th of November, 1810, he advised them of the liberation of the vessel, and the restoration of his papers, on the 5th of the same month, by sentence of the prize court, and of his determination to discharge the cargo at Flekkejiord, where the ship was then lying. Thus announcing his determination not to seek or await any instructions or advice from them, relative to the disposition of the cargo, hut to act upon his own judgment. And on the 10th of tli'e same month, he acknowledged the receipt of their letter of the 30th of October, eleven days after it was written; and after regretting that it contained no information to induce him to alter his determination to unload at Flekkejiord, told them he intended to commence doing so on the Wednesday following—and afterwards without consulting them on the subject, or giving them any intimation of his intention to do so, sailed for Hull, where he unloaded the cargo.

Resting here, there is not a tittle of evidence to show a compliance by the master, with his instructions; hut on the contrary, the whole of it has the opposite hearing. In his first letter to Messrs. Parish Co., he informs them of the capture of his ship; in his second he tells them, that his knowledge of prize cases, induces him to believe that their advice in relation to his future destination, would be of no advantage to him; and in his third, he for the first time, (and that only in compliance with their request, contained in their answer to his second letter,) discloses to them, the quantity and description of the goods to their address, and the name of the shipper—and although requested in the letter to which that is an answer, to forward to them any information that might be useful, and also told that it will he time enough to correspond on the subject of his future destination, after they should be informed by him of the goods he had on hand, he neither communicates to them the nature of his instructions, nor asks their advice. In his fourth, he announces to them the restoration of the ship and papers, and that no appeal was made, and also his determination to discharge the cargo at Flekkefiord. But it does not appear, that he forwarded the letters of instruction to them, from the appellee with which he was entrusted, notwithstanding his saying, that the papers were restored to him on the 5th of November, and their request in their first letter, that he would forward any letters he might have for them; and in his last letter to them, he reiterates his determination to unload at Flekkefiord, and tells them that he intends commencing it on the Wednesday following, though they had before suggested to him, that some of their friends had proceeded from Gottenburg to Carlshcm, there to unload their cargoes; and speaking of the frequent changes that were occurring, had promised in their letter of the 30th of October, to keep him informed of any changes that might take place in the state of affairs. And with a view to those frequent changes, that very unsettled state of affairs it was, that the shipment was made, and his instructions given him to consult with, and be governed by the advice of the Messrs, Parish fy Co. But having as early as the 14th of September, 1810, brought his mind to the conclusion, that the advice of Messrs. Parish <y- Co. would be of no service to him, and acting upon that assumption, he manifestly determined, not to throw himself upon them for information or instructions, but to take the disposition of the cargo upon himself. And he did do it, regardless of their suggestion, that some of their friends had proceeded from Gottenburg to Carlsham, to land their cargoes, their promise to keep him informed of any changes that might take place in the state of affairs, and their intimation of a correspondence to be opened, after they should be informed by him of the goods on hand, all which was before the vessel had been liberated; his advice of which event was accompanied by the information, that he had determined to discharge the cargo at Flekkcfiord, and followed two days after by the information, that he should begin unloading the Wednesday following, without asking any advice or information on the subject, which, added to his having withheld a disclosure of his own instructions, and neglected to forward the letters of instruction to them from the appellee, and thus kept them in a state of ignorance that he was placed under their direction, was calculated to induce the belief, that he was acting by authority, seeing that he withheld himself from all further communication with them, and sufficiently accounts for their not writing to him again, in the absence of proof of any other cause.

If at the time of the liberation of the William Wilson, all the ports of the continent of Europe on the North Sea and Baltic, were, in fact, closed by municipal regulations, against the admission of a vessel and cargo in her predicament, and she was expelled from the ports of Norway, by the orders of the Danish government, so suddenly after her liberation, as not to allow time for a further correspondence between the master and Messrs. Parish 8/ Co., and he was prevented from communicating- with them, by the situation of affairs, and not by his own act or conduct; he would, under such circumstances, to be found by the jury, and by force of his letter of instructions, have become the special agent of the appellee, and by proceeding to Hull, in England, and there accepting that part of the cargo which belonged to the appellee in fulfilment of the contract, have entitled the owners to freight, and die court should have so instructed the jury, if there had been any evidence in the cause to justify such a direction. But we can discover no such evidence.

If it should be conceded that, that part oí' the deposition of James Dooley relied upon for that purpose, was legal evidence, which is not very clear, being only evidence of what he heard a pilot say, there is nothing in it to sustain such a direction. The most that can be made of Dooley's testimony is, that about the 10th of December, 1810, the master went on board the ship accompanied by a pilot, who directed her to be got under way, and said he had received orders from a custom house officer to take her to sea that night. Now there is nothing in this, tending in the slightest manner to prove, that the ship wms expelled from the port of JSTorway by the orders of the Danish government so suddenly after her liberation, as not to allow time for a further correspondence between the master and «Messrs. Parish &f Co., and that he was prevented from communicating with them by the situation of affairs, and not by his own act or conduct. The ship was liberated, as is shewn by the letter of the master himself, of the 8th of November, 1810, on the 5th of that month, and according to Dooley's deposition, was taken to sea by the pilot about the 10th oí’ December, thirty-five days after her liberation; during the whole of which time, she was permitted by the state of affairs, to remain at Flekkejiord. It is also shewn by the letters of the master, that in answer to letters addressed by him to Messrs. Parish & Co., after the capture and during the detention of the ship, he received two letters from them, in eleven days after their respective dates, Dooley's testimony then, so far from tending to prove, or affording the slightest ground for the inference, that the ship was expelled from the ports of JYorway so suddenly, as not to allow time for a further correspondence between the master and Messrs. Parish 8f Co. if it proves any thing, clearly establishes the contrary hypothesis, by shewing that she was permitted to remain at Flekkejiord thirty-five days after her liberation; quite long enough for a communication with Messrs. Parish fy Co., as it only required eleven days for a letter to pass between them—during which time, the master, if he had been so disposed, might, as it was his duty to do, have opened a correspondence with them, relative to the disposition or further destination of the appellee’s goods. And so far from there being any evidence to show, that his not seeking the advice of Messrs. Parish Sf Co., was owing to the situation of affairs, which prevented his communicating with them, the whole of the evidence lies the other way. Ilis telling them in his second letter, that their advice would be of no service to him, and never afterwards seeking it; and his following up that with his letters of the 8th and 10th of November, in the first of which he advises them of the liberation of the ship, and his determination to land the cargo at Flekkejiord, and in the other, of his intention to commence unloading on the Wednesday following; and the evidence of Dooley, that in the month of October or November, before the vessel was released, he heard him and Thomman, the supercargo employed by the other shippers, say, that they had united in the determination to proceed to Hull in the event of the liberation of the ship, with the additional circumstance, that he made no effort to obtain their advice, during the thirty-five days that the ship was permitted to remain at Flekkejiord after her liberation, tend strongly to prove his fixed determination, not to submit himself to their directions, but to act upon his own judgment and responsibility. The hypothetical direction, therefore, which was asked for by the prayer set out in the fourth bill of exceptions, was properly refused, being an abstract proposition, not arising out of the evidence in the cause.

Whether the ship owners were, under the circumstances of the case, entitled in equity and good conscience, to retain the money received on account of freight, was clearly a question not to be left to the jury, but proper only to be decided by the court.

We concur, in opinion, with the court below, on the second, third and fourth bills of exception, hut dissent from the opinion expressed in the first exception, and reverse the judgment AND AWARD A TROOENDO.