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of a charter party. The district court rendered a decree for libelant. 58 Fed. 894. Respondent appeals.
Joseph Hutchinson and George W. Towle, for appellant.
Before MCKENNA, Circuit Judge, and HANFORD and HAWLEY, District Judges.
HAWLEY, District Judge. This is a libel in personam, in admiralty, brought to recover damages alleged to have been sustained by appellee by reason of the refusal of appellant to fulfill the terms of a charter party alleged to have been entered into by it, through its agents, Balfour, Williamson & Co., of Liverpool, with John Joyce & Co., agents of the owner of the ship Galgate. Appellant denies the making of the agreement and also denies that Balfour, Williamson & Co. were its agents for the charter of the ship. The district court, after the trial and hearing of the case, entered an order dismissing the libel, with costs. It subsequently vacated this order, and granted a rehearing, and, after argument of counsel, it adjudged that the appellee herein was entitled to recover from appellant the sum of $19,180. Galgate Ship Co. v. Starr & Co., 58 Fed. 894.
Appellant is a California corporation, and is extensively engaged in the shipment of wheat and flour to foreign countries. Appellee is a foreign corporation, having its principal place of business in Liverpool, and is the owner of the ship Galgate. Balfour, Guthrie & Co. are San Francisco merchants, who include in their business the chartering of vessels for themselves and for other parties. Balfour, Williamson & Co. are Liverpool merchants engaged in like business. These respective houses or firms are intimately related to each other by a community of partnership interests. The charter party, for a breach of which this action is brought, is dated at Liverpool, June 4, 1891. It is signed by John Joyce & Co., managing owners of the Galgate, as the party of the first part, and "by authority of Starr & Co., Balfour, Williamson & Co. as agents," the party of the second part. It provides for the chartering of the steel ship Galgate to Starr & Co. for a voyage from San Francisco to certain ports in Europe, at the option of the charterer, with a cargo of wheat, flour, or other lawful merchandise, and recites the fact that the vessel was then on a voyage from New York to Melbourne, with liberty to take cargo from Newcastle to San Francisco for owners' benefit. It was filled out on a printed form which, among other things, contained the following printed condition: "Vessel to be properly stowed and dunnaged; and certificate thereof, and of good general condition, draft of water, and ventilation, to be furnished to the charterers from charterers' surveyor." When executed the word "charterers" in the last clause was erased, and the word "competent" interlined in lieu thereof, so that it read "competent surveyor," instead of "charterers' surveyor." The contro verted question as to the agreement between the parties centralizes around these words "competent surveyor" and "charterers' surveyor," and, incidentally, as to the meaning of the words "usual terms"
or "usual conditions," as used in certain cables and letters hereinafter referred to.
The contention of appellant is that it never authorized the signing of the charter party except it contained the condition that the certificate referred to in the clause above quoted was to be furnished by "charterers' surveyor." This is denied by appellee. The oral testimony upon this point is conflicting. It therefore becomes necessary to closely examine all the facts and circumstances furnished by the documentary evidence on both sides, so that from all the evidence the truth may be ascertained. There is no controversy whatever as to the importance of the provision in the charter for charterers' surveyor. It is admitted that there are certain risks attending the stowage of a cargo of wheat or flour not covered by the ordinary insurance policy; if, for instance, the previous cargo has left any taint in the ship, the flour will absorb it, and thus become damaged. There is also a risk of loss and damage arising out of the stowage of certain goods or merchandise in contact with or in proximity to flour. For the purpose of guarding against these and other like risks, Starr & Co. have a surveyor in their employ, whose duty it is to visit the ship constantly as the cargo is being received on board, to see that the vessel is properly lined and dunnaged; to go below into the hold of the ship, and personally superintend the stowage of the cargo. It is also his duty to see that all the ship's stanchions, and parts composed of metal near the cargo, are carefully wrapped in bags, gunnies, or other material to protect flour from contact with rust; in short, he does whatever is necessary to reduce the sea damage to the cargo to the smallest possible amount. The marine surveyor who represents the insurance companies may be entirely competent for the services for which he is employed, but he is not required to render the special services secured by the charterer in the employment of his own surveyor. It has, therefore, been customary in the port of San Francisco for charterers to provide in the charter party that the certificate of the ship's condition shall be furnished by the charterers' surveyor, or they have it understood that he may be so employed. The first negotiations for the charter of the ship took place in San Francisco about June 1, 1891, when Robert Bruce, of the firm of Balfour, Guthrie & Co., offered the ship for charter to Alfred Bannister, vice president of appellant. On June 2, 1891, Balfour, Williamson & Co. cabled Balfour, Guthrie & Co.: "Galgate: We offer, for reply here to-morrow, 14s. Newcastle, N. S. W., to San Francisco, 39 U. K., Havre, Antwerp, and Dunkirk, 44 continent, 1s. 3d. less direct, 28 February canceling, 1s. extra freight 31 January canceling." Upon the receipt of the telegram, several interviews were had between Bruce and Bannister, which resulted in an offer by Mr. Bannister, on behalf of Starr & Co., to Bruce, which was communicated, June 2, by Balfour, Guthrie & Co. to Balfour, Williamson & Co. by cable, as follows: "Galgate: We offer, for reply here noon to-morrow, Starr & Co. 38s. 9d. U. K., H., or A., Dunkirk, 5s. extra freight for one month's earlier arrival." To this cablegram Balfour, Williamson & Co. replied, June 3, 1891: "Gal
gate declined. We might arrange with firm offer in hand, 38s. 9d. U. K., H., A., D., 43s. 9d. continent, 2s. 6d. off direct, 31 March canceling, 1s. 3d. extra freight for one month earlier arrival." This offer was accepted by Starr & Co., and on the same day Balfour, Guthrie & Co. cabled Balfour, Williamson & Co.: "Galgate: Starr & Co. willing to accept your last quotation. Exceptional offer. We recommend acceptance." Balfour, Williamson & Co. replied June 4, 1891: "Galgate: We have arranged 14 Newcastle to San Francisco 38-9 U. K., H., A., D., 43-9 continent, 2s. 6d. off direct, 31 March canceling, 1s. 3d. more for one month's earlier arrival. We are arranging and signing here homeward charter for Starr & Co." What occurred in Liverpool in relation to the signing of the charter party is testified to by P. D. Toosey, as follows:
"There was no discussion between John Joyce & Co. and Balfour, Williamson & Co. direct, for they never met, but there was some discussion, through me as broker, as to the word 'competent' being inserted before 'surveyor,' instead of 'charterers'. The charter party was first signed by John Joyce & Co., and at the time of signing it they inserted the word 'competent,' instead of 'charterers'.' I took the charter party over to Balfour, Williamson & Co., and Mr. Fortune objected to the alteration. I then said that Mr. Joyce might possibly agree to the words 'charterers' surveyor, provided competent,' and Mr. Fortune agreed to this, and the words were inserted. I then took the charter party back to John Joyce & Co., but Mr. Joyce refused to agree to the alteration I had suggested, and insisted on the word 'competent' alone being substituted for 'charterers'.' I then took the charter party back to Balfour, Williamson & Co., and Mr. Fortune reluctantly agreed to the alteration which Mr. Joyce required rather than let the charter fall through. Before Mr. Fortune agreed to this alteration I told him, in order to induce him to give way, that I knew Starr & Co. had agreed to the words 'competent surveyor' being inserted in the charter party of another vessel, the 'Speake,' only a short time previously. This discussion took place in Liverpool on the 4th and 5th of June, 1891."
The facts in relation to the "Speake" are that the ship, after being chartered with the words "competent surveyor," was rechartered to Starr & Co. with the verbal understanding that Starr & Co. should employ their own surveyor, which was done. In the interviews had between Bruce and Bannister prior to June 4th nothing had been said with reference to the place where the charter party of the Galgate should be signed. There is nothing in the record to show that any authority had previously been given by Starr & Co. to have the charter party signed in Liverpool. The previous cablegram that had been sent had no reference to the signing of the charter, and the cable last sent by Balfour, Williamson & Co. was the first information that the parties in San Francisco had that it would be signed in Liverpool. In reply to this cable, Balfour, Guthrie & Co., on June 4th, cabled Balfour, Williamson & Co.: "Galgate: Confirm charter to be signed on your side. Be particular. Usual terms. Charterers' surveyor." Mr. Bannister testifies that June 4 was the first day that Starr & Co. had any firm offer on the ship; that, after the offer was made, he authorized Bruce to cable to his friends that Starr & Co. would accept the offer, and that he then and there stated to him the terms and conditions upon which the charter party was to be signed. In answer to the question: "You say you told Mr. Bruce, as he stepped outside, it was to
be on the San Francisco form of charter, and certain other things?" he said:
"I intended to say that the charter was to be written on the San Francisco form of charter party, drawn by San Francisco shippers, a committee of which I was one, and Mr. Balfour was one, and Mr. McNear, and other shippers. It specified a great many conditions that we had all agreed on, uniformly putting in the strike clause, as Mr. Bruce testified, and many other conditions that we all agreed we would adhere to. It had the stiffening clause, the surveyor's clause, the loading clause, places of loading, and everything distinctly specified. I stated to Mr. Bruce, just as he was quitting the office, it was understood, as usual, between our two firms, that this charter was to be drawn on that form, giving us the usual conditions and charterers' surveyor in the document. *** To which he replied: 'Oh, yes; that is all right; that is always understood with you.' I had a general understanding with him before to that effect."
Mr. Bruce had previously denied that any such conversation occurred between him and Mr. Bannister. His testimony in chief, in the main, tended to support the contention of appellee that, while Starr & Co. were giving authority to an agent to execute a charter party in their behalf, they failed to instruct the agent in this important particular as to charterers' surveyor, and that the agent voluntarily undertook to secure the condition, “charterers' surveyor," as a favor to Starr & Co., and for the further reason that such a condition in the charter was remotely beneficial to the agent. Mr. Bruce testified that he did not know who originated the provision for "charterers' surveyor" in this case, and that he did not remember who sent the cablegram of June 4th. Upon his cross-examination, he testified as follows:
"Q. Do you know anything about Starr & Co.'s negotiations with you at that time, as to whether the terms were expressed that 'charterers' surveyor' should be incorporated? A. I have no recollection of Mr. Bannister ever bringing the subject up. I am rather confirmed in my opinion from the fact that he sent on the original offer for Starr & Co. on the 2d day of June, and there was not a single word in that cable conveying any special conditions. If there had been any, it was our duty to have sent them forward. Q. Who inserted that requirement, 'Usual terms, charterers' surveyor'? A. That would mean that there was to be no deviation in the conditions under which the ship was to be loaded at this port, and that it should cover wheat, flour, and general merchandise. Q. And charterers' surveyor? A. If the charter came out containing charterers' surveyor, Mr. Bannister would be extra well pleased, probably, in having his own way. Q. What I want to find out is whether or not that particular provision of this cable originated from Balfour, Guthrie & Co. or originated from Mr. Bannister. A. My impression is that it originated from Balfour, Guthrie & Co., and not from Mr. Bannister. Q. They simply made it a gratuitous suggestion for them to make it charterers' surveyor? A. That is my impression from the fact that the cable sending the positive offer contained no provisions. Q. You say Mr. Bannister might be extra well pleased to have his own way, if the charter came out that way. Having his own way how? A. Mr. Bannister very often used to remark that ship owners were generally getting everything their own way, and that it was just as well for charterers occasionally to have a little their own way. I suppose when the charter came out containing those words, 'charterers' surveyor,' that Mr. Bannister might be extra well pleased that he was getting what you might call a straight charter. Q. That is, one satisfactory to himself; the usual charter in this case? A. The usual charter, I consider, has nothing whatever to do with the term 'surveyor.' *** Q. Do you wish to be understood as saying that that cablegram was sent with that express caution with reference to 'charterers' surveyor' without any understanding between Balfour, Guthrie & Co. and Starr & Co. with reference to it? A. Yes;
that is my impression at this existence of time. Q. From what did Balfour, Guthrie & Co. get the information that Starr & Co. desired such a stipulation? A. I do not know that they ever got the information at all until the receipt of the charter parties. *** The Court: Q. Now, then, 'charterers' surveyor,' -how did you happen to insert that in this cable? A. I have no recollection of Mr. Bannister ever referring to the charterers' surveyor in connection with that vessel. Probably the reason that that was put in was simply because Mr. Bannister was always glad when he got a little more than he expected. If the charter came out containing the words 'charterers' surveyor,' he probably would be extra well pleased. That is the only conclusion I can come to. Q. Do you think you had any conversation with him about it? A. I really do not recollect whether I had any conversation or not on that subject. Q. Can you say whether you had any conversation about the usual terms? A. It is possible he may have spoken about the usual terms; it is quite likely he did. Q. You are of opinion that you conferred with him as to the charter being signed on the other side? A. I am positive of that. Q. You had his agreement to that? A. It could not have been signed there without his consent. Q. With respect to the other portion of the cable, you do not know whether you consulted him or not? A. I do not recollect."
It will readily be observed that the testimony given by this witness upon his cross-examination materially qualifies the denial of the conversation testified to by Mr. Bannister about having the provision for charterers' surveyor inserted in the charter. Bruce admits that there was a conversation about inserting the "usual terms," but says that that had no reference to the surveyor clause. He does not remember who originated the condition in the cable as to "charterers' surveyor," but thinks it must have been Balfour, Guthrie & Co., and that they put it in so as to please Mr. Bannister by getting Starr & Co. a straight charter. When witnesses disagree, courts must look at the conditions and surroundings of the respective parties; the probabilities or improbabilities of their respective statements; their interest, if any, in the result of the litigation; their manner of answering questions. Their memories must be tested; their credibility established by satisfactory evidence. The presumption is that witnesses tell the truth. Courts usually hesitate to disregard the testimony of any witness unless he has been impeached or his credibility successfully established. They seek to determine the weight of evidence by other means. The wholesale and gratui tous assaults upon the character of a witness, too often indulged in by counsel, are not looked upon with favor, and are never given any weight unless it is clearly shown that the witness is unworthy of belief. Ordinarily, abuse of a witness does not reach the dignity of an argument. It is always better, where discrepancies exist, to search for the truth from the surrounding circumstances,-the reasonableness of the testimony; whether the acts alleged to have taken place did occur, or whether a conversation upon the particular subject was naturally liable to take place. These, and other considerations of like character, which readily suggest themselves to the mind, are the safest guides to enable the court to determine where the weight of testimony is to be found. In this case the witnesses seem to be of even credit; their interests are equal; their character and standing alike. Both are entitled to respectful consideration. The contradictions and discrepancies of each upon other points con