Hamilton v. Warfield , 2 G. & J. 482 ( 1830 )

Martin, J.

delivered the opinion of the Court.

It appears from the charter-party relied on in this case., that the schooner Independence was chartered by Warfield, to perform a voyage at and from Baltimore, to any port or ports, in the West Indies, Spanish Main, or in the Gulpk of Mexico, and back to Baltimore. The intention of the parties where it can be fairly obtained from a charter-party ought to prevail in its construction, and we think it is manifest from the terms of the agreement, that this constituted but one voyage, to commence at and from Baltimore, and to terminate on the return of the vessel to the same place: It is agreed in express terms that the freight should be $200 a month, for the time the vessel was performing this voyage, to be paid in ten days after her return to Baltimore. We do not take into consideration that part of the charty-party, that allows a pro rata freight for the time the vessel was engaged in the voyage, in case of a total loss, because we think it forms no part of this case, that relates only to a loss, proceeding from the dangers of the sea. The cases referred to in the argument to shew a covenant, that a vessel forthwith be made tight, staunch, and strong, &c. is not a condition precedent, and if the freighter uses the vessel he shall be chargeable with freight pro rata, &c. would have great weight, where the case rested upon sucha covenant alone, but in this charter-party the stipulations are, not only that the schooner on, and during the said voyage, should be tight, &c. but also that thefreight should be paid in ten days after the return of the vessel lo Baltimore- The question then upon which this case depends, and upon which it must be decided, is, whether under this charter-party, the return of the Independence back to Baltimore is a condition precedent to the payment of freight ? Upon examining the English, authorities, many nice, and almost imperceptible distinctions, may be found upon the doctrine of freight pro rata iteneris, but it seems to be settled, that where freight is to be paid after the return of the vessel from her destined voyage, her return is a condition precedent, and no freight is demandable, until that condition is performed. Here is a contract between the parties, in writing, under seal, and the terms of their agreement expressed in plain and unambiguous language. It cannot, we think, be doubted, that it was the clear intention of the contracting parties, that Warfield, should have the benefit of the whole voyage, at and from Baltimore, and hack to the same place; and this voyage being performed ho was in ten days afterwards to pay the freight; this is an indivisible contract, the freight depending upon the performance of the whole voyage, and by the express agreement of the parties, not to be demandable until after the vessel should return to Baltimore; if the vessel was lost by the dangers of the seas, then a pro rata freight was to be allowed, and paid in ten days after the loss was ascertained; but if no injury was sustained from that cause, the whole Voyage was to be performed, and then, and not till then, the charterer had a legal claim for freight. The case of Smith, its, Wilson, 8 East. 437, is an authority in point to sustain this case on the part of the appellee. That was an action to recover freight on a charter-party of affreightment, not exactly similar in all its provisions to the one now before us, hut sufficiently so, to decide the question upon which this case depends. In the reported case, among other covenants not necessary to he here enumerated, it was stipulated that the ship being properly fitted, &c. should receive or take on board at London or Portsmouth, such goods as the freighter might think proper to ship, and should sail and proceed therewith to Monte Video, &c.; and being arrived there, should give due notice thereof to the agents of the freighter, and make a right and true delivery, &e. and after such de - livery should receive and take on board from the freighter, or his agents, &c. a full and complete cargo of lawful goods, and immediately set sail from thence, and proceed, to some one port of discharge in Great Britain, &c. and there deliver the said cargo, Sic. and there end his said intended voyage, (the act of God, the King’s enemies, and the dangers of the sea excepted,) in consideration whereof the freighter covenanted that he would pay £670 sterling per month, for every calendar’ month the ship should be employed by him, during the said intended voyage to Monte Video and back to her port of discharge, and so in proportion for any less time, in full for the freight, or hire ojf said ship during her intended service; such freight to commence from the day the ship should be ready to receive the goods on board at Portsmouth, and end when she should have finally discharged the whole of her said cargo, &c. such freight, £yc. to be paid on the arrival of the said ship at her destined port in Great Britain. The ship took on board a cargo at Portsmouth and commenced the voyage, but from causes stated in the report, never did arrive at her destined port in Great ^Britain. The Court decided that by the terms of the charter-party, the freight, &e. thereby covenanted to be paid, on the part of the defendant, are all of them expressly covenanted to be paid, on the arrival and discharge of the ship at her destined port in Great Britain; and of course, are made to depend on the event of such arrival and discharge, at her destined port in Great Britain, as a condition precedent to the plaintiif’s right to demand the same. This doctrine is recognized by Lord Ellenborough, in Ritchie vs. Atkinson, 10 East. 308, — he says where, as in Smith and Wilson, the freight is made payable upon an indivisible condition, such as in that case, the arrival of the ship with her cargo at her destined port of discharge; such arrival, &e. must be a condition precedent, because it is incapable of being apportioned, Cook vs. Jennings, 7 Term. Rep. 381. We are of opinion, that as the schooner Independence did not return hack to Baltimore, within the terms of the charter-party, the freight claimed, never became demandable by law.

judgment affirmed.