Monsen v. American Importing & Transportation Co.

1. The evidence as to the hurricane in Jamaica and the consequent inability of the defendant to procure merchantable fruit for carriage was properly excluded. By the terms of the charter party the owner was to furnish the vessel with a full complement of officers and crew, and she was to be employed in the carriage of any “lawful merchandise, including petroleum or its products,” between ports named in the charter party, including certain Atlantic ports of North and South America and the West Indies. That the hurricane in Jamaica, affecting as it did only one kind of merchandise, was not an “act of God” within the meaning of the eighth section of the charter party sufficiently to avoid the same is too clear for discussion.

2. The tenth section of the contract provided that the vessel’s bottom should be kept cleaned and she was to be docked at least once in every four months, and payment of hire was to be suspended until she should be again in proper condition for the service. The defendant did not at any time during the six months for which the vessel was hired request or demand that she should be docked and her bottom cleaned, and this was not done. One Paasche, who signed the charter party on behalf of the plaintiff and acted as his agent and representative with reference to the management of the vessel testified that, as he remembered, he told the defendant that the owner would have the vessel docked and cleaned at any time the defendant desired to have it done. This testimony was uncontradicted, and the defendant does not argue that it is not true.

But it contends that the failure to comply with this requirement is in any event a bar to this action. It does not appear that the *390defendant company, which by the terms of the contract had full control of the movements of the vessel, ever gave the plaintiff an opportunity to do this work; and, as before stated, it never intimated a desire to have it done. The vessel was not surrendered until the expiration of the six months, the time for which she was chartered. There is no good ground for contending that this provision was intended to work a forfeiture of the right to charter hire. The clause properly construed means that charter hire shall be suspended so long as the charterer is deprived of the use of his vessel by the process of dry docking and cleaning. In legal effect this was an agreement either to dry dock the vessel at least once in every four months, or else allow the charterer his actual loss from the failure to clean her. Falls of Keltie Steamship Co. v. United States & Australasia Steamship Co. 108 Fed. Rep. 416. See also Munson Steamship Line v. Miramar Steamship Co. 150 Fed. Rep. 437, and Bollman v. Tweedie Trading Co. 150 Fed. Rep. 434. If the defendant suffered any loss by the failure to clean the vessel, its remedy was by way of recoupment. But no such claim is made. We are of opinion that under the circumstances the failure of the owner to dry dock and clean the vessel is no ground of defense to this action.

Exceptions overruled.