U.S. Supreme Court
Gracie v. Palmer, 21 U.S. 8 Wheat. 605 605 (1823)
Gracie v. Palmer
21 U.S. (8 Wheat.) 605
By a charter party, the sum of $30,000 was agreed to be paid for the chanrobles.com-red
use or hire of the ship on a voyage from Philadelphia to Madeira and thence to Bombay, and at the option of the charterer to Calcutta, and back to Philadelphia (with an addition of $2,000 if she should proceed to Calcutta), the whole payable on the return of the ship to Philadelphia, and before the discharge of her cargo there, in approved notes ,not exceeding an average time of ninety days from the time at which she should be ready to discharge her cargo. The charter proceed in the ship to Calcutta, and with the consent of the master (who was appointed by the shipowners), entered into an agreement with P. & Co, merchants there, that if they would make him an advance of money, he would deliver to them a bill of lading stipulation for the delivery of the goods purchased therewith to their stipulating for the delivery of the goods purchased therewith to their agents in Philadelphia, free of freight, who should be authorized to sell the same, and apply the proceeds to the repayment of the said advance, unless the charterer's bills, drawn on G. & S. of Philadelphia, should be accepted, in which event the agents of P. & Co. would deliver the goods to the charterer. The goods were shipped accordingly, and a bill of lading signed by the master, with the clause "freight for the said goods having been settled here." The bills of exchange drawn by the charterer were refused acceptance, and the agents of P. & Co. demanded the goods, which the owners of the ship refused to deliver without the payment of freight. Held that the owners of the ship had a lien on those goods for the freight.
This was an action of assumpsit, brought by the defendants in error against the plaintiffs in error, to recover back the sum of $10,500, paid under the circumstances stated in the following case, to be considered as a special verdict.
On 23 October, 1818, the defendants, being the owners of the ship America, chartered her to Hugh Chambers, by the following charter party:
"This charter party, indented, made, and entered upon, this 23 October, 1818, between Archibald Gracie, William Gracie, and Charles King, the persons constituting the co-partnership or house of trade, under the firm and style of Archibald Gracie & Sons, of the City of New York, owners of the ship or vessel called the America, of New York, of the burden of 460 tons, or thereabouts, register admeasurement, of the first part, and Hugh Chambers, of the City of Philadelphia, merchant, of the other part, witnesseth that the said owners have let and the said Hugh Chambers hath taken and hired the said vessel to freight for the voyage upon the terms and conditions following: whereupon the said owners do covenant, promise, and agree, to and with the said charterer, by these presents that the said vessel shall be tight, stanch, and strong, well and sufficiently fitted, manned, provided, and furnished with all things needful and necessary for such vessel on her intended voyage, hereinafter mentioned, and provisioned for the term of eighteen months, and
fully and properly armed with large and small arms and with sufficient ammunition for the same, and that she shall, on or before 15 November next, be in readiness at the port of Philadelphia to receive and take on board, and shall there, when tendered within reach of her tackle, receive and take on board all such lawful goods and merchandise, as the said charterer may think proper to ship, not exceeding what she can reasonably store and carry over and above her tackle, apparel, provisions, armament, and other necessaries, and the privileges hereinafter reserved for the master and first and second officers, and the lading of the to be shipped by the owners, as herein after mentioned, and that the said ship shall be in readiness to sail from Philadelphia aforesaid, and, on being loaded and afterwards dispatched, shall and will (wind and weather permitting) set sail from the said port of Philadelphia on or before 30 November next and proceed to the Island of Madeira, and shall and will there make a right and true delivery of such quantities of goods and merchandise as shall be there deliverable, loaded at Philadelphia aforesaid, to such persons as the same shall have been consigned to; and the same being so unloaded, the said ship shall and will receive and take on board all such legal goods, wares, and merchandise whatsoever as shall be offered and tendered within reach of her tackle by or for account of the said Hugh Chambers, not exceeding as aforesaid. And as soon as the said ship shall be thus loaded at Madeira aforesaid,
she shall and will set sail and depart from thence (wind and weather permitting), and directly proceed on her voyage, and put into the port of Bombay, in the East Indies; and that she shall, at the option of the said Hugh Chambers, his agent or agents, be allowed also to put into Calcutta, and deliver her cargo and take in returns there."
"And at the said ports of Bombay and Calcutta, respectively, unlade all such goods and merchandise as shall remain on board, and relade such lawful goods, wares, and merchandise, as the said charterer, his agents, factors, or assigns, shall think fit to charge and lade on board, over and above and not exceeding as aforesaid, and the lading, for account of the said owners, in respect of the returns for the said funds, in, to be shipped by them; and that the said ship shall and will, with her said return loading (wind and weather permitting) sail and proceed back to the said port of Philadelphia, and there deliver unto the said charterer, his executors, administrators, or assigns, the full and entire cargo laden and taken on board the said ship at Bombay and Calcutta aforesaid, for his account, upon the entire delivery whereof the said intended voyage shall end and be determined (the dangers of the seas, restraints of princes and rulers, and all other unavoidable casualties always being excepted by these presents). And it is hereby agreed that the said owners shall load and ship on board the said vessel for the said voyage, $15,000 Spanish milled, to be invested in goods and merchandise in India in like manner
as the residue of the cargo in general, and that they shall be chargeable with freight on the returns thereof, at the rate of $50 per ton, or, if the said returns shall be in goods and merchandise usually chargeable with or taken on freight by weight, that the same shall be estimated at such rate as shall be equivalent to that sum by the ton, and also that the commission to be allowed the supercargo of the said ship shall be a clear commission of five percentum on the amount of the investment in India."
"And it is further agreed that the said charterer shall furnish and supply the needful and sufficient cabin stores to and for the supercargo, master, and officers, of the said ship for the said voyage, and that the owners shall and will allow and pay to him therefor the sum of $1.500, and also that the cabin shall belong to the said charterer (excepting the respective staterooms in which the master and officers shall sleep)."
"And it is hereby further agreed and granted and reserved that the master shall have a privilege of six cubic tons freight free; the first officer a like free privilege of three cubic tons, and the second officer a like free privilege of two cubic tons, provided that neither of the said privileges shall be used for the purpose of shipping flour out in the said ship. And the said charterer, for himself, his heirs, executors, and administrators, doth hereby covenant and agree with the said owners that the said charterer will well and truly pay and satisfy all the port charges and expenses of the said ship, as well abroad as at Philadelphia aforesaid, until she shall have discharged
her return cargo, excepting always the sea stores, the wages of the master, officers, and crew, and the repairs and outfits of the said ship, with all which she is to be chargeable. And it is hereby further agreed that there be allowed, and are granted, one hundred and twenty working days in all for the loading and unloading of the said ship at the ports and places of loading and delivery, and that the time not used and occupied at one port or place may be taken or made up at the others, so that the whole do not exceed the number allowed as above mentioned, and that for every detention over and above the said one hundred and twenty days, the said charterers shall pay to the said owners the sum of $75 per day, to be paid in like manner as the freight. And the said charterer, for himself, his heirs, executors, and administrators, doth hereby promise and agree with the said owners, their executors, administrators, and assigns, that he will cause the said ship or vessel to be loaded at the said port of Philadelphia, on her being in readiness to receive her funds and cargo there, and reloaded at the Island of Madeira, and at Bombay and Calcutta in the manner above expressed; and that he will pay to them, on the return of the said ship to Philadelphia, and before the discharge of her cargo there, in approved notes not exceeding an average time of ninety days from the time at which she shall be ready to discharge her cargo, the clear sum of $30,000, and if she shall have proceeded to Calcutta, the further sum of $2,000 for the hire and freight of the said ship for
the said voyage. In witness whereof the said owners and charterer have to these presents, in duplicate, set their hands and seals the day and year first above written."
"ARCH. GRACIE & SONS"
On 28 November, 1818, the America sailed from Philadelphia upon the voyage in the charter party mentioned, laden with sundry goods, and also $15,000 in specie, the property of the defendants. The flour and other merchandise were delivered at Madeira, and the quantity of 207 pipes of wine, purchased with the proceeds or part thereof, was there laden on board the America, and made deliverable in India. The America proceeded from Madeira to Calcutta, where the quantity of about 324 tons of her burden was filled up from the proceeds of the outward cargo and with such parts of the wine, taken in at Madeira, as was not disposed of at Calcutta, and the merchandise so taken in was made deliverable to sundry consignees in the port of Philadelphia. Hugh Chambers, the charterer, was on board the said ship at Calcutta, and it was impracticable to obtain any freight for the said ship at the said port beyond the amount so laden as aforesaid; nor could any person be induced there to ship on board of her any other goods deliverable in the United States upon the condition of paying, or being liable for any freight whatever. Whereupon the said Chambers applied to the plaintiffs to make him an advance for the purpose of purchasing merchandise to ship on board the chanrobles.com-red
ship America, and did then and there, with the knowledge and consent of Edward Rosseter, the captain or master of the said ship America, enter into an agreement with the plaintiffs that if they would make such an advance, he would leave the merchandise purchased therewith in their hands as a security for the said advance while in Calcutta, and would, when shipped on board the America, deliver to them a bill of lading stipulating for the delivery thereof to their agents in Philadelphia, free of freight, who should be authorized to sell the same and apply the proceeds to the payment of the said advance, unless the said Hugh Chambers' bills for the same, drawn upon Messrs. Grants & Stone, of Philadelphia, should be accepted, and the consigner should feel perfectly assured they would be paid at maturity, in which event the said agents should deliver the said merchandise to him. That the said plaintiffs accordingly made the said advance, received the said goods as they were purchased, and shipped them on board the said ship America, for which shipment the said master signed and delivered the following bill of lading to the plaintiffs, which the said Chambers endorsed
"Shipped in good order and well conditioned by Hugh Chambers in and upon the good ship called the America, whereof is master for this present voyage, Edward Rosseter, and now lying in the port of Calcutta, and bound for Philadelphia, to say, seven hundred and forty-six bags, and sixty-five boxes of sugar, five hundred and eighty-nine bags of saltpeter, ten hundred and sixty
bags of ginger, thirty-five bags of aniseed, thirty-two boxes of borax, thirty-two of castor oil, three hundred and three bundles of twine, thirty-five bales of goat skins, six thousand one hundred and sixty horns and horn tips, two hundred and sixty cow hides, fifteen hundred and sixty-nine gunny bags, two bales of seersuckers, two boxes of choppas, six bales of sannahs, five bales of checks, twenty-two bales of gurrahs, and one box of mull muslins. On account and risk of Hugh Chambers of Philadelphia, being marked and numbered as in the margin, and are to be delivered in the like good order and well conditioned at the aforesaid port of Philadelphia (the danger of the seas only excepted) unto Messrs. T. M. & R. Willing, or to their assigns. Freight for the said goods having been settled here."
"In witness whereof the master or purser of the said ship hath affirmed to five bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void. Dated Calcutta, 7 September, 1819."
"Marks and numbers on the back of this bill, countersigned. Hugh Chambers."
That the said Chambers, at the same time, drew, and delivered to the plaintiffs the said bills of exchange upon Messrs. Grants & Stone, for the sum of 8,042 pounds 8 shillings and 4 pence sterling, being the amount of the said advance, which said bills were afterwards duly presented to Grants & Stone for acceptance, who refused to accept the same, and they were afterwards duly protested for chanrobles.com-red
nonpayment, and now remain unpaid. That the said agreement to deliver the said goods without paying freight, and the said bill of lading and endorsements, were made by the said Chambers, by Edward Rosseter, and by the plaintiffs, in good faith, and without them the said plaintiffs would not have made the said advance, nor shipped the said goods, and the receipt of the said goods on board the America by the said master under the said agreement, and signing the bill of lading in the terms aforesaid were, under the circumstances of the case at the time, the best he could do for the interest of the owners of the ship. That the said plaintiffs were informed by Hugh Chambers that the America was chartered by the said Chambers for a specific sum, and that the stock or merchandise originally placed on board of her at the commencement of the voyage, and its proceeds were solely and sufficiently a pledge for the payment of the same. That the America arrived in the port of Philadelphia on or about 29 February, 1820, when the defendants gave notice to the said Chambers that they had entered the ship and were ready to deliver the goods after payment of the freight stipulated by the charter party. On 1 March, 1820, the said Chambers replied to the defendants that he was unable to comply with the requisitions of the charter party. On 2 March, 1820, the deter-party. gave notice to all the consignees of goods on board the America, as by letter of that date to T. M. & R. Willing. On 3 March, 1820, Thomas M. & R. Willing, the consignees of the merchandise shipped by the plaintiffs, demanded chanrobles.com-red
of the defendants and of Edward Rosseter, the master, the delivery thereof without paying freight, and protested against the payment of any freight. On 6 March, 1820, the defendants refused to deliver the said merchandise without paying freight. On the same day, the said T. M. & R. Willing, on behalf of the plaintiffs, replied to the defendants, and repeated the protest against paying any freight for the said merchandise, and their refusal to pay any freight, unless they should be compelled to do it, in order to obtain possession of the said goods. The said T. M. & R. Willing, being unable otherwise to obtain the said merchandises from on board the ship America, paid, as the agents of the plaintiffs and in their behalf, to the defendants the sum of $10,000, which payment was made in acceptances of the defendant's drafts, dated 29 March, 1820, at ninety days, and duly paid, 30 June, 1820. The said payment was compelled by the defendants under their claim of freight and in consequence of their having the custody of the said merchandises, and was made under protest by the said T. M. & R. Willing. In consequence of the said payment, the said merchandises were delivered by the defendants to the said T. M. & R. Willing, as agents and consignees of the plaintiffs. There were other merchandises on board the said ship, exclusive of those consigned to the said T. M. & R. Willing, sufficient in value to pay the whole freight due by the said charter party. If, upon the whole matter, the court shall be of opinion that the defendants had no right to detain the said chanrobles.com-red
goods for freight, judgment to be entered for the plaintiffs for the sum of $10,500, with costs of suit.
If, upon the contrary, the court shall be of opinion that the defendants had such right, then judgment to be entered for the defendants.
Judgment being given upon this case for the plaintiffs below, the cause was brought by writ of error to this Court. chanrobles.com-red