The Ada , 2 Ware 407 ( 1849 )

WARE, District Judge.

This is a suit on a foreign contract, in which all the parties are foreigners, and is to be governed by the laws of the country where it was made, and to which the parties belong. The libellants proceeding on their lien against the ship herself, and that being ■within the jurisdiction of this court, whatever scruples may be entertained by courts of admiralty in other countries, there is no doubt according to the decisions of our courts, and in my opinion there is none on general principles, that this court, notwithstanding the alienage of the parties, may take cognizance of the case, and enforce the lien, if by law the libellants are entitled to it. Conk. Pr. Adm., pp. 24-37. The Jerusalem, [Case No. 7,293;] The Bee, [Id. 1,219.] In suits in rem, the locus rei sitae necessarily gives the jurisdiction, because it is only in the courts of that country that a jus in re can be directly enforced, though in foreign contracts the law of the place, where the contract was made, furnishes the rule of decision. The libellants shipped at Liverpool, April 4th, 1S49, for a voyage, which is described in the shipping articles to be from the port of Liverpool ‘to Savannah, and any other port or ports in the United States of America, and any port or ports in British North America, and any port or ports in the West India Islands, at the discretion of the master, or consignees, as freight or cargo may offer, and back to her final port of discharge, of Great Britain and Ireland: term of time on the voyage not to exceed twelve months. The vessel’s complement of officers, seamen, and apprentices, eleven in number, and any over or above the number of said complement to bo considered as extra hands.’ The vessel performed her voyage to Savannah, and having discharged her cargo there, went in ballast to Calais. There the libellants, having learned that the master was preparing for a voyage to San Francisco, in California, refused to go on that voyage, and demanded their discharge and wages. Four and a half of the twelve months, to which the time of service was limited, had then expired.

The master contends that the refusal of the libellants to proceed on that voyage was a breach of their duty, by which they have forfeited all right to the wages they had earned for their past services. The libel-lants, on the other hand, say that this new voyage to California was a deviation from that originally contemplated and for which they engaged themselves, and amounted to a breach and dissolution of the contract, and released them from its obligations; that they might, therefore, well demand their discharge, and to be paid their wages, for the time they had served.

The right of the libellants to their discharge, and to be paid their wages, has been ably vindicated by tlieir counsel on several grounds; but they may perhaps all substantially be resolved into one, at least in the view that I take of the case, it will be necessary for me to consider only one, and that is this, admitting, what is denied by the counsel, that San Francisco is properly a pert of the United States, not having been made such by any laws, whether it can in any just sense be deemed to be one of the ports contemplated by this contract. Every contract is morally binding on the parties in the sense in which it is understood by them at the time when it is made; and it is to the same extent, and no further, binding on them in law, when this sense can be clearly ascertained. ‘Whatever,’ says Paley, ‘is expected on one side, and is known to be so expected on the other, is to be deemed a part or condition of the contract.’ Moral Philosophy, bk. 3, pt. 1, c. (5. This proposition I hold to be as sound in law as it is in morals. All the rules for the interpretation of contracts have for their object to ascertain what this common understanding of the parties is, and when it is discovered, the law comes forward and applies itself to their mutual and common intention, and holds the parties bound by their agreement thus far and no farther. It is commonly said that the intention of the parties is to be collected from the words in which the contract is expressed. Tins, as a general proposition, is perfectly true; but it is not universally true that we are to look at the words alone. The greatest of the Roman ju-risconsults has told us that, In conventioni-bus eontrahentium voluntatem. potius quam verba, spectari placuit. Dig. 50, 16, 219; Pa-pinianus. Lib. 2, Responso rum. It is the intention that is sought. The language may be ambiguous and susceptible of two interpretations; or it may have a popular sense, in local usage, or in its application to the subject-matter of the particular contract, more or less comprehensive than the words naturally import when taken by themselves. In these cases we are obliged to look beyond the words. Now I think that the case before us is one to which the latter distinction may apply. Within the words of the description of this voyage, the master might carry his crew to any port in British North America. But the British possessions extend across the whole breadth of the continent, and without going beyond the literal sense of the language of the contract, he might carry them on a voyage to the extremo north-west coast. Can it be imagined that the owners, when they prepared this shipping paper to be read to the crew, supposed, unless some verbal explanations were given at the time; that the men would understand that they were binding themselves to go a voyage to the mouth of the Columbia liver, or to Vancouver’s island, if the master chose to carry them there. The description would naturally suggest to them-a voyage to those ports which were familiar to the commerce of their country, and which were frequently and ordinarily visited for the purposes of trade, and in the popular and usual sense, they would suggest nothing more. That is, it would be taken to be a voyage in which the vessel might visit any of the American or British ports on the eastern shore of the continent. This is the interpretation that I should have given to the contract, if the description of the voyage had terminated with merely naming the ports which might be visited, in the order in which they stand in the shipping articles. They would, without some further explanations were given, suggest to the seamen a voyage embracing the ports on the eastern shore of the continent and nothing more. It was justly urged, by the counsel for the libellants, that, if there is a fair and reasonable doubt as to the true meaning of the articles, the seamen are on every principle entitled to claim a construction favorable to themselves. It is the owners who give the description of the voyage, and on general principles applying to all contracts, if the language is ambiguous or uncertain in its meaning, the construction shall he against the party -who uses it, because he is bound to express himself clearly, and this principle applies with all its force to contracts between owners, who are always men conversant in business and shrewd and watchful in looking to their -own interests, and seamen, who are proverbially careless, improvident, and ignorant. The disparity in the condition of the parties imposes on the court the duty to take care that the improvidence of seamen is not entrapped, by the superior watchfulness and sagacity of owners, into engagements that they did not intend to make.

In the present case, this construction of the contract is forfeited by another clause in the articles, which appears to me to be entirely decisive. It is the limitation of time. The whole period of the service was not to exceed twelve months. The first port the vessel was to make was Savannah, and if a voyage around Cape Horn to the northwestern coast of the continent had been contemplated, it is incredible that the' time should have been limited to twelve months. The decisions of the high court of admiralty in England, referred to in the argument, though not in cases precisely parallel in their facts with those of the present case, bear considerable analogy to them, and from the tone and language in which they were pronounced, I cannot entertain a doubt that an English court would hold, that the voyage to San Francisco was such a deviation from the voyage contemplated by the shipping articles, as to discharge the seamen from their contract; that the voyage was broken up as to them, and that they are entitled to ■heir wages. The Coimtess of Harcourt, 1 rlagg. [Adm.] 248. The Minerva, Id. 347. The George Home, Id. 370. The Cambridge, 2 Hagg. [Adm.] 243. If wages are decreed, the master contends that there are equitable deductions to be made from the amount due; in the first place, certain sums which he paid for the libellants in Savannah, for fines imposed on them by the local authori-ses of that place, for breaches of the peace. The payment of these sums is admitted, and it is not denied that they constitute an equitable set-off against their wages, unless the claim of the master has, for a valid consideration, been released, and in my opinion it has. When the vessel was ready to be got under way to leave Savannah, she was found to be short-handed, three of the men, and two of the boys having deserted. The vessel’s complement was eleven hands, including the officers, so that she had but barely more than half her complement left. In this state of things, the crew refused to proceed on the voyage, and to induce them to forego their determination, the master promised to release this claim against them. I should not be inclined to hold the master bound by this engagement, if it had been extorted from him under the pressure of necessity, without any reasonable or colorable pretext. But this can hardly be considered as a mere wanton refusal to do their duty, on the part of the crew. Whether, on the requirement of tlio master, they might have been bound to proceed on the voyage, with half a crew, being then in a port where additional hands might be obtained, I do not think it necessary to decide. By going with half their complement of men, they subjected themselves to do double duty, and if the weather should prove boisterous, to increased danger, and at the same time relieved the owners from the expense of nearly half the ordinary crew. My opinion is that their consent thus to proceed on the voyage, under the circumstances, was a sufficient consideration to uphold this release. The master also claims a deduction of the amount of certain forfeitures, alleged to have been incurred by the libellants. These, if any have been actually incurred, arise under St. 7 & 8 Vict, c. 112, § 7, (Sept. 5, 1844), not for desertion, as they seem to be considered by the master, but for temporary absence without leave. This statute provides that a seaman shall forfeit, for every willful absence from the ship, without leave, or refusal to do his duty, two days’ pay, and for every twenty-four hours’ absence six days’ pay, or, at the option of the master, the expenses necessarily incurred in hiring a substitute; provided always, that no forfeiture shall be incurred, urn-less the fact of the seaman’s absence, or neglect, or refusal to do his duty shall be entered on the ship’s log-book. These absences were for short periods, the longest but half a day, except one of thirty-six hours for the purpose of consulting the British consul on the subject of this deviation from the original voyage. This was a very proper and prudent act on their part, and could in no sense be called a willful absence. But, with respect to all of them, there is this fatal defect in the evidence. It is not mentioned, in the agreed statement of facts, that the absences were noted in the ship’s log. The admission of the absences, in the statement of facts, is not sufficient to cure this defect This entry is not required merely as a medium of proof, but for the purpose of showing that it was regarded, at the time, as a criminal act on the part of the seamen, and to prevent the master, on any subsequent difficulty with the seamen, from bringing forward past absences, and creating forfeitures, when, at the time, they were considered, if not entirely venial, as not deserving to be punished by statute forfeitures. Decree for libellants.