THE JOHN H. PEARSON, 121 U. S. 469 (1887)

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U.S. Supreme Court

The John H. Pearson, 121 U.S. 469 (1887)

The John H. Pearson

Argued April 11-12, 1887

Decided April 25, 1887

121 U.S. 469


A vessel was chartered to carry a cargo of oranges from Palermo to Boston. The words "captain engages himself to take the northern passage" were written into the printed blank. The cargo was badly damaged, and the charterers libeled the vessel to recover for the loss. The court below found that "northern passage" appeared from the proof to be a term of art, unintelligible without the aid of testimony, that the evidence concerning it was conflicting, and that it was immaterial to decide it, as the claimant was entitled to the least strict definition, and the actual course of the vessel came within that definition. Held that this was error; that if the term was a term of art, it should have been found by the court, and that if there was no passage known as "northern," the vessel was bound to take the one which would carry it in a northerly direction through the coolest waters into the coolest temperature, and the court should have ascertained from the proof what passages between Gibraltar and Boston vessels were accustomed to take, and should have determined which of them the contract permitted the vessel to choose.

This is an appeal in admiralty, and presents the following facts:

The barque John H. Pearson was chartered to carry a cargo, consisting mostly of oranges, for the libellants, from Palermo, Sicily, to Boston, Massachusetts. The charter party contained the words, "captain engages himself to take the northern passage," inserted at the instance of the libellants, for the benefit of the cargo, and written into the printed blank. The cargo was badly damaged on the voyage, and this suit was brought to recover for the loss. The controversy is as to whether the vessel, in going from Gibraltar to Boston, took "the northern passage."

The court has found that

"Shippers of fruit consider it of very great importance for the preservation of the cargo that it be kept in as cold a temperature as possible, short of the freezing

Page 121 U. S. 470

point, and have been accustomed for many years to instruct masters to take a northerly course,"

and after setting forth other facts, stated as "conclusions of law" the following:

"1. The term 'northern passage' appears, in view of the testimony of merchants and seamen introduced on both sides, to be a term of art, and is, when taken by itself, without the aid of such testimony, unintelligible."

"The testimony introduced by the libellants tended to show that the phrase meant a passage from Gibraltar to the Great Banks, and thence direct to Boston, keeping as much to the north as possible during the entire passage; that anything between that and the southern passage was the middle passage."

"That introduced by the claimant tended to show that it meant anything north of latitudes 30 to 35 or 36, or of the southern passage, and that the middle passage was anything between the southern passage and the northern, as described by the respective witnesses. It was admitted that the southern passage was in the trade winds."

"2. Upon this testimony, the court, thinking that the true meaning of the term is very doubtful, does not consider it material, and does not undertake to decide whether a preponderance of the evidence favors one of the above definitions or another, and rules that the claimant is entitled to the least strict definition, and that, as the course of the barque comes within such definition, there is no deviation."

The libel was dismissed, and from a decree to that effect this appeal was taken. The opinion of the circuit court is reported in 14 F.7d 9. chanrobles.com-red

Page 121 U. S. 472


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