Stewart v. Reed , 46 Me. 321 ( 1858 )

The opinion of the Court was delivered by

Hathaway, J.

The plaintiffs chartered the brig Mary Stewart of Bangor, to the defendants, for a voyage, “from Bangor to Palermo and Messina, in the island of Sicily, and back to Boston or New York,” for the freight of thirty-eight hundred dollars, and all port charges, including consul’s fees, interpreter’s fees and lighterage, and, if said brig was required to go to the second port, before named, thirty-nine hundred and fifty dollars, and all port charges, as above J It was also stipulated that “ the party of the second part shall be allowed for the loading and discharging of the vessel, at the respective ports aforesaid, lay days, as follows; that is to say, — dispatch at Bangor and Boston or New York, — twenty-five running lay days in both ports, in Sicily.”

The case finds that, “ by the written directions of the defendants, the brig went from Bangor to Messina, and back to the port of Boston, and performed the voyage, to the satisfaction of the defendants, and in pursuance of their directions of the same.”

The question presented is whether, by the true construction of the charter party, “the second port” mentioned therein was Messina or New York. The plaintiffs contend that it was Messina, and the defendants insist that it was New York.

It was, obviously, contemplated by the parties that the brig might be required to go to one only of the ports in Sicily. She went to but one, and to that by the defendants’ written directions.

It is equally obvious that she might have been required to go to both ports in Sicily. There was a provision, in the charter party, for “twenty running lay days, in both ports in Sicily.”

The charter party is in the form usual in such cases, and its plain meaning is that, as to her ports of destination, the brig should be under the direction of the defendants, limited to the ports specified, and that she should go to both ports, in Sicily, or either, and return to Boston or New York, as the defendants should require.

The stipulation for extra freight was, “if said brig is required to go to the second port before named.” The brig was bound to go to Sicily “and back to Boston or New York.” To go back is to return. The construction contended for by the defendants would not be in accordance with the common use of language. The port, to which the brig might be required to go, was one in which consul’s fees, interpreter’s fees and lighterage were to be paid; and the case finds that such charges were required to be paid in Messina, but none such, for an American vessel, in New York; and besides, by looking at the charter party, it will be perceived that Messina was literally, “the second port, before named,” therein. The case is free from doubt.

Tenney, C. J., and Appleton, Cutting, and Goodenow, J. J., concurred. Rice, J., dissented.