Opinion
October Term, 1852
S. Stevens, for appellant.
Daniel Lord, for respondent.
On the trial it was insisted that the fact affirmed in the charter party that the vessel was of the burthen of one hundred and ninety tons or thereabouts was a warranty; but on the argument here that was not insisted upon by the counsel who argued the cause for the defendant. It clearly was not intended as such by the parties. The construction of the contract was a question for the court, and the judge was right upon that point in his charge to the jury.
But it was insisted upon here that the judge erred in his charge to the jury in respect to the question of damages. I think that the court was correct in its charge in that particular. It is well settled that where a person charters a vessel for a particular voyage, agreeing to furnish a full cargo at specified rates, and fails to furnish such cargo, he is answerable to the owner of the vessel for what the vessel could have taken safely had a full cargo been furnished at the specified rates, being allowed, however, what the vessel earned during the time it would have occupied to perform the stipulated voyage ( Duffie v. Hayes, 15 Johns. 327; Abbot on Ship. 411 and note).
The evidence in respect to errors committed in the registering of vessels, and whether the registered tonnage corresponded with the actual burthen and capacity of the vessel to carry cargo, I think was correctly admitted; it was pertinent in respect to the question of a fraudulent representation of the tonnage of the vesse in question.
It was wholly immaterial whether the insurance officers in New York refused or not to insure a cargo for Ireland on board of the plaintiff's vessel in consequence of the smallness of her registered tonnage. The plaintiff had not stipulated that she had any particular capacity. The evidence offered therefore that they did so refuse was properly rejected.
The judgment should be affirmed
1. There was no error in admitting the evidence as to the common variance between the register tonnage and actual burthen. It was competent to show the circumstances under which the contract was made, and was incompetent only on the ground that the statement of the tonnage was a warranty, which I will by and by consider.
2. Nor any in excluding evidence as to a vessel of 140 tons register getting freight or shippers getting insurance on her as readily as if 190 tons. These were considerations addressed to the parties themselves and not to the court. It was their business to have looked out for that, and the evidence could not have changed the contract. The legitimate effect of the evidence would have been to let the defendants off because they had made a bad bargain.
3. The objection that the court excluded the evidence as to the underwriters refusing to insure is liable to the same answer. The evidence tended merely to show that the defendants had made a bad bargain.
4. The statement of the tonnage of the vessel was mere matter of description, as much so as the words that followed, "Now lying in the harbor of New York."
And I confess. I do not comprehend the argument that a representation which is neither a warranty nor fraudulent, is good ground of an action when material.
5. As to damages, the true rule was laid down to the jury; for the hazard of getting a return cargo, and what might have been made or lost upon the return voyage, is altogether too remote to enter into the account between these parties.
Judgment affirmed.