Mactier v. Wirgman , 4 H. & J. 568 ( 1819 )

Buohanan, J.

delivered the opinion of the court. It has been urged in argument on the part of the defendants, that the plaintiff, by his letter of instructions to Peter Wirgman of the 8th of May 1810, constituted him his supercargo or agent, and that he could not in that character prejudice the ship owners by any violation of his instructions, notwithstanding he was himself a part owner of the vessel; but was liable, if at all, only in his individual capacity. That question does not belong to the case, and is not necessary to be inquired into. The suit was brought, not for damages for a violation of instructions by Peter Wirgman as supercargo, but to recover a sum of money retained by the defendants, on account of freight, out ot the proceeds of that part of the cargo which was the property of the plaintiff. The only question is, whether freight was earned or not? And that question lies within a narrow compass. The contract between the parties to this suit, to be collected from the charter party, the bill of lading, and the agreement of the 14th of May 1810 is, that the goods shipped by the plaintiff shall not be landed on the Island of Sylt, but at some permitted port on the continent of Europe, before any freight shall be earned; but in the event of the whole of the ports on the continent being shut, then, and not otherwise, the defendants shall be entitled to freight on the goods being landed in England, with a stipulated addition. By the term ‘‘shut,” as here used, is meant an occlusion, by the municipal regulations of the country; and unless in that sense of the term all the ports of the continent of Europe were closed, the vessel could not earn freight by going to England, unless the plaintiff by some act of his has made himself liable. And it i3 said that he has so made himself liable; that the letter of instructions to Peter Wirgman, of the 8th of May 1810, vested in him, as agent, a discretion to do whatever in his opinion would be most to the interest'of the plaintiff, in the event of his being prevented by live situation of affairs in Fait ope, from communicating with the Messrs. Parish fy Co. and entitled the shipowners to freight, on the cargo being landed, in the honest exercise of that discretion, at Hull in England, which it is contended, is a port in the North Sea, within the meaning of the charter party and bill of lading. That paper being ' of anterior date, must be considered as revoked by the agreement of the 14th of May 1810, so far as it may contain any thing inconsistent with that instrument; but on an attentive examination it will be found to give no such discretion. Pfiter Wirgman by it is referred for his government to a letter of the same date from the plaintiff to the 'Messrs. Parish & Co. in which they are expressly instructed!, that “the ship is not discharged from her freight until the cargo is landed in a port on the continent of Europe,” thus tying down the ship-owners, in relation to the freight to be earned, to a delivery of the goods at some port on the continent. These two letters, taken together, and not that to Peter Wirgman alone, must be understood as furnishing his instructions. But it is argued, in relation to the letter to the Messrs. Parish 8f Co. so far as it respects a delivery of the goods at a port on the continent, that the plaintiff had no power, by any instructions either to the Parishs or to his supercargo, to deprive the defendants of rights acquired under the charter party, or to control the general voyage, in which other shippers were concerned. The answer to that is, that the ship-owners had a right to make any other contract they pleased with the plaintiff, varying or annulling the charier party, in relation to his part of the cargo. They did enter into a subsequent separate agreement with him, to which we must look, for the rights of the parties. In that instrument the stipulation, that no freight shall be earned by landing the cargo in England, unless all the ports on the continent of Europe should be shut, is just as explicit as the agreement not to land the goods on the Island of Sylt. It may therefore as well be said, that the defendants would have been entitled to freight on the goods being landed at. Sylt, as in England; and it has not been contended that freight could have been earned by landing them at Sylt, though by the terms of the - charter party they might eventuallyhave been landed at that port. _ Hence it is not material to this case, what the true meaning of the charter party is, or what would have been the rights of the parties under that instrument as it originally stood. But admitting, for a moment, that the letter of the 8th of May to Peter Wirgman did give hitn the eventual discretion contended for, whether the contingency happened of not, on which the discretion was to arise, was a question for the consideration'of the jury, and perhaps the judge stepped aside in saying that it did . IJirgmañ was bound to seek a communication with the Messrs. Parish, & 6o. and to obey their instructions, and was not tied down to a communication from SyU only, which is merely mentioned as a convenient point of intercourse; and to show that he was not prevented from communicating with them, seven letters that passed between them were offered in evidence, two of which were from the Parishs to him. In their first letter of the 2d of October 1810, they request information concerning the cargo consigned to them, and by whom, and suggest difficulties respecting the future destination of the vessel, in the event of her being liberated, but sav there will be time enough to correspond on that subject, after being informed of the cargo on hand; at the same time telling him what course liad been pursued by several of their friends. And in their letter of the 80th of the same month, they instruct him, in the event of condemnation, to proceed to Copenhagen to prosecute an appeal; inform him of recent French and Danish decrees respecting colonial produce, and of the heavy duties imposed in Hamburg and Holstein, and speak of the difficulty at that time of pointing out a proper port of discharge, but promise to keep him informed of the state of affairs. To their avoiding to give positive directions touching the future destination of the ship, before she was liberated, no objection can be taken. But what was the course pursued by Peter JVirgman? In bis letter of the 8th of November he advised the Messrs. Parish fy Co. that the vessel had been released on the 5th, and that it was his determination to discharge the cargo in Flekke-fiord, and without waiting for instructions; and as if to prevent any, in his last letter of the 10th of the same month, only two days later, he informed them that it was hits intention to commence unloading on the Wednesday following; and afterwards, without consulting them on the subject, or giving any intimation of his intention, sailed for Hull in England, where he landed the cargo. It was his duty, after advising the Parishs of the liberation of the vessel, to wait at least a reasonable time, for their directions,- anti ifhe either declined, or by any improper act of his, prevented their further interference, he thereby violated his instructions, and removed the only ground on which the claim of discretion could rest. Thejudgmentofthecountycourtcan* not in any view of the subject be sustained. Whether it would or would not have been expedient to attempt the landing of the cargo on the continent, was not a matter to be inquired of by the jury. The only question properly before them was, whether the whole of the ports on the continent of Europe, were by municipal regulations closed against the admission of the goods of the plaintiff which, were on board the ship I'PHHam Tfilson? If they were, the vessel earned freight by going to England; if on the contrary any of them were open to such goods, the defendants had no right, under the stipulations in the agreement, tp charge freight on landing them in England\ and the plain* tiff is ¡entitled to recover any sum of money retained by them on that account, notwithstanding the distracted state of Europe might have rendered it hazardous to seek such open ports.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.