Blanchard v. Bucknam , 3 Me. 1 ( 1824 )

WestoN J.

delivered the opinion of the Corn*!.

This is an action of covenant broken on a charter party, brought to recover the money covenanted to be paid, for the victualling and manning and for the freight of the brig Paymaster. To this the defendants have pleaded five several pleas. Upon the fourth and fifth pleas, issue has been joined by the plaintiff. To the first plea, the plaintiff has replied, and the defendants, in their rejoinder thereto, have traversed the matter alleged in the replication ; and upon this traverse, issue has been joined. The plaintiff, in. his replication to the second plea, has also tendered an issue, which has been joined by the defendants. To the third plea the plaintiff has demurred specially ; and the defendants have joined in demurrer. Upon the issues to the country, a verdict has been returned for the plaintiff, subject to the opinion of the Court.

If any one of the issues may. not appear to be supported by the evidence on the part of the plaintiff, the verdi.ct will npt bp set aside for that cause, but sustained, as if stands, or as it may be amended, if upon the merits the plaintiff ought to recover ; as. uppp examination we do.not perceive that any issue could have been found for the defendants, which would have been decisive of. the case,, so as. to entitle them¡ to judgment.

As to the freight, stipulated to be paid by the charter, party, we are satisfied, from the authorities cited, and, others which, might be adduced, that none is due ; that t.he whole voyage is.to. be regarded as one, and not susceptible, according to the terms, of the contract, of the division, into two, outward and homeward, contended for by the plaintiff.

To .the claim for yi’ctualling and, manning, it is urged that the return of the vess.el to Portland is made a condition precedent to. its payment ; and that it was not to be paid until thirty days after, such return — But, upon inspecting the charter party, the agreement to pay a certain sum monthly for .the victualling and manning appears to be a distinct, and independent, stipulation on the part of the defendants, and is not, from. its. terms, or upon a fair construction of the whole instrument, made to depend upon the prosperous termination.of the voyage. There seems, therefore, to be no well founded objection to the plaintiff’s right to recover for the victualling.

With regard to the, manning, it is insisted that the plaintiff ’s claim, if he is entitled to any thing, should be limited to one month’s advance to the seamen ; inasmuch as their, right to wages is made by the marine law to depend upon the. earning of freight , j and as in the pres'ent case none was earned. By the charter, party, as between the owners and the defendants, the right of the plaintiff to,,demand freight depended upon the completion of the voyage. But the right of the seamen to their wages is not affected by this condition, unless they, have assented to it, by express stipulation. Abbot, 431. 1 Peters, adm, 186, there ref erring, to the decisions, of Judge. Winchester,. In Coffin v. Storer, 5 Mass. 552, cited by, the counsel for. the defendants, the voyage to Surinam and a market and back to Biddeford, -was held to be one voyage ; and, as it was not completed, it was further held that no. hire of the vessel was recoverable by force of the charter garty. But by the same instrument, the defendant was to pay a quarter of the outfits, wages, and expenses, And. Parsons, C. J. says, “ it seems very clear that he must pay one fourth of the “ outfits and expenses, and also of the wages, until the outward, “ cargo was landed at PtmararaP

By the custom of merchants, seamen’s wages become due at every delivering port ; although by a law of the United States, only a third part of what may be due at each delivering port is there to be paid, unless it has been otherwise expressly stipulated ; the payment of the residue being, from motives of public policy, postponed until the voyage is ended. In the case before us, is St. Bartholomews to be regarded as a delivering port, so as to entitle the seamen to wages, within the true intent and meaning of the marine laws ? In certain cases, says Judge Peters, in reference to seamen’s wages, in the case of Giles and others, mariners vs. the brig Cynthia, 1 Peters adm. 203, a port of destine ation “ is the same as a port of actual delivery ; and it matters “ not,” he adds, “ that the vessel didnot carry thither any goods, “ but went in ballast. She earns her freight and the wages are “ due out of it, as much in legal contemplation, as if she had been “ fully laden.” And in his opinion, the same rule applies, where a vessel is.sent to a designated port for a cargo, and, being unable tp procure one, returns without any.

In the present case, every thing appears to have been done at St. Bartholomews, which the defendants contemplated, or the master, acting in pursuance of their instructions, deemed necessary. A part of the cargo was actually landed and re-shipped, and the whole was entered and cleared at the custom house in that island, and the duties thereon paid. The defendants probably proposed to themselves some benefit or advantage, from this course of proceeding. They thought proper to direct the outward cargo to be returned, giving it the form of an original shipment there ; and there seems to be no ground in reason or justice why, as to the seamen, that port should not be regarded as a delivering port, so as to entitle them to their wages, as in other cases. They faithfully performed their duty ; the vessel arrived at the port of destination in safety; and every thing was there done in relation to the cargo, which was required by the defendants or the master. We are therefore of opinion that the plaintiff is entitled to recover for the victualling and manning, from the date of the charter party to the arrival of the brig in St. Bartholomews, and for half the time she remained there ; with interest thereon from the date of the writ.

With regard to the demurrer and joinder to the third plea, if that was intended to apply to the whole declaration, it would be clearly bad ; as it leaves one of the breaches unanswered. But it professes only to answer the breach assigned, for the nonpayment of freight. As we have determined that the plaintiff’s claim for freight is unsupported by the evidence, it‘has become unnecessary to consider the effect of the exceptions taken to this plea.

After the verdict has been amended, in conformity with this opinion, judgment is to be rendered thereon.