Citations
- 7 N.Y.3d 262
Full opinion text
Jewett, J.
(after stating the facts.) — On the trial, it was insisted, that the fact affirmed in the charter-party, that the vessel was of the burden 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 * 265 1 **me ^ *wou^ have occupied to perform the -* stipulated voyage. (Duffie v. Hayes, 15 Johns. 327; Abbott 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 burden 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 vessel 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.
Edmonds, J.
1. There was no error in admitting the evidence as to the common variance between the register tonnage and 'actual burden. 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 argu- f ^ ment, 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.