LOWBER V. BANGS, 69 U. S. 728 (1864)

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U.S. Supreme Court

Lowber v. Bangs, 69 U.S. 2 Wall. 728 728 (1864)

Lowber v. Bangs

69 U.S. (2 Wall.) 728


A stipulation in a charter party that the chartered vessel, then in distant seas, would proceed from one port named (where it was expected that she would be) to another port named (where the charterer meant to load her), "with all possible dispatch," is a warranty that she will so proceed, and goes to the root of the contract. It is not a representation simply that she will so proceed, but a condition precedent to a right of recovery. Accordingly, if a vessel go to a port out of the direct course, the charterer may throw up the charter party.

Ex gr., a vessel, while on a voyage to Melbourne, was chartered at Boston for a voyage from Calcutta to a port in the United States. The charter party contained a clause that the vessel was to "proceed from Melbourne to Calcutta with all possible dispatch." Before the master was advised of this engagement, the vessel bad sailed from Melbourne to Manila, which is out of the direct course between Melbourne and Calcutta, and did not arrive at Calcutta either directly or as soon as the parties had contemplated. The defendants refused to load, and upon suit to recover damages for a breach of the charter party, it was held that the charterers might rightly claim to be discharged.

Bangs & Son being owners of the ship Mary Bangs, then at sea, on her passage from New York to Melbourne, chartered her at Boston, on the 4th June, 1858, to Lowber, who was there, for a voyage from Calcutta to Philadelphia &c. The charter party contained the following clauses:

"Ship to proceed from Melbourne to Calcutta with all possible dispatch. It is understood that the Mary Bangs is now on her

Page 69 U. S. 729

passage from New York to Melbourne (sailed 3d day May last); that the owners will use the most direct means to forward instructions to the master, with copy of this charter, ordering it to be fulfilled; but should it so happen that the ship should arrive at Melbourne before these instructions, and the master should have engaged his ship before receiving them, this charter will be void."

No provision, it will be observed, was made for the case of the vessel's having left Melbourne unengaged, or, indeed, for anything but for her arriving at Melbourne, and her engagement before receiving the instructions promised by Bangs & Son, to be sent. The vessel reached Melbourne on the 7th of August; she discharged her cargo, and was ready to sail on the 7th of September. She waited for the mail until the 16th of that month. It was due there on the 5th of September, but by an accident did not arrive until the 14th of October. The voyage from Melbourne to Calcutta, at that time of the year, usually consumed from forty-five to sixty-days. Had the vessel proceeded to Calcutta direct, she ought to have reached there before the middle of November. She went, however, to Manila, much out of the direct course from Melbourne to Calcutta, and arrived there on the 16th of November. She left Manila on the 24th of January, and arrived at Calcutta on the 26th of February, more than three months after the time at which she ought to have arrived, if she had gone there directly from Melbourne. The owners addressed to the master five letters, of different dates, advising him of the charter party, and directed them to Melbourne. The charterers, on the 23d of June, dispatched an agent to Calcutta, who arrived there on the 25th of August. As soon as he learned that the vessel had not come direct from Melbourne, he declined loading her under the charter party. Freights, it may be added, had largely fallen between the date when the charter party was made and that of the vessel's arrival at Calcutta, and also that after the arrival of the Mary Bangs, and after she was ready and had offered to receive a cargo, the charterers engaged another vessel of about the same tonnage to take her place,

Page 69 U. S. 730

and loaded her with a cargo purchased after the arrival of the Mary Bangs, with funds provided for her. The case thus showed that the object of the voyage had not been frustrated.

On error from the Massachusetts Circuit, where the case had come before the court as a case stated, the question presented for the determination of this Court was, whether the fact that the ship proceeded from Melbourne to Manila and thence to Calcutta, instead of going to Calcutta from Melbourne directly, gave the charterers a right to avoid the charter party; in other words, whether the clause, "ship to proceed from Melbourne to Calcutta with all possible dispatch," did or did not make a condition precedent; whether, in short, it constituted a warranty, or merely a representation? The court below considered that it was not a condition precedent, but an independent stipulation, which gave the charterers a claim for damages on failure of performance by the owners, but did not give them the right to avoid the contract; the object of the voyage not having been wholly frustrated. Judgment was given below accordingly.

Page 69 U. S. 736

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