121 U.S. 469

7 S.Ct. 1008

30 L.Ed. 979

FILIBERTO and others

April 25, 1887.


This is an appeal in admiralty, and presents the following facts: The bark John H. Pearson was chartered to carry a cargo, consisting mostly of oranges, for the libelants, from Palermo, Sicily, to Boston, Massachusetts. The charter-party contained the words, 'captain engages himself to take the northern passage,' inserted at the instance of the libelants, for the benefit of the cargo, and written into the printed blank. The cargo was badly damaged on the voyage, and this suit was brought to recover for the loss. The controversy is as to whether the vessel, in going from Gibraltar to Boston, took 'the northern passage.' The court has found that 'shippers of fruit consider it of very great importance for the preservation of the cargo that it be kept in as cold a temperature as possible, short of the freezing POINT, AND HAVE BEEN ACCUSTOMED FOR MANY years to instruct masters to take a northerly course;' and, after setting forth other facts, stated as 'conclusions of law' the following: '(1) The term 'northern passage' appears, in view of the testimony of merchants and seamen introduced on both sides, to be a term of art, and is, when taken by itself, without the aid of such testimony, unintelligible. The testimony introduced by the libelants tended to show that the phrase meant a passage from Gibraltar to the Great Banks, and thence direct to Boston, keeping as much to the north as possible during the entire passage; that anything between that and the southern passage was the middle passage. That introduced by the claimant tended to show that it meant anything north of latitudes 30 deg. to 35 deg. or 36 deg., or of the southern passage; and that the middle passage was anything between the southern passage and the northern, as described by the respective witnesses. It was admitted that the southern passage was in the trade winds. (2) Upon this testimony the court, thinking that the true meaning of the term is very doubtful, does not consider it material, and does no undertake to decide, whether a preponderance of the evidence favors one of the above definitions or another, and rules that the claimant is entitled to the least strict definition, and that, as the course of the bark comes within such definition, there is on deviation.'

The libel was dismissed, and from a decree to that effect this appeal was taken. The opinion of the circuit court is reported in 14 Fed. Rep. 749.

H. W. Putnam, for appellant.

Frederic Dodge, for appellee.

[Argument of Counsel from pages 470-472 intentionally omitted]



As the libelants deemed the agreement to 'take the northern passage' of sufficient importance to have a printed form changed, so that it might be incorporated in express words into the charter-party, and this 'for the benefit of the cargo,' which was perishable, it is evident that the words used had some meaning which indicated clearly to the minds of the contracting parties the direction the vessel was to take on her way from Gibraltar to Boston. It is also evident, from the fact that the vessel was bound to take the northern passage, that the parties understood there was more than one passage which vessels were in the habit of taking in making that voyage, according as their bills of lading or their charter-parties required, or the circumstances made desirable. It implies that there were one or more other passages which those engaged in the trade knew by other names or other descriptions. What 'the northern passage,' as used in this contract, means, therefore, is either a question of fact, or a question of construction applicable to understood facts.


If it is, as the court below says it appears to be, a term of art, which, taken by itself, without the aid of the testimony, is unintelligible, then its meaning in 'the art'—the trade—is one of the material facts in the case, on which the rights of the parties depend, and it should have been found and put into the findings of fact which the circuit court was required by law to make. The statement of the court, now in the record, implies that there is in fact some particular passage between Gibraltar and Boston which those engaged in that trade know as 'the northern passage.' If there is, then that is the passage the vessel was bound to take, and it was error in the court to decide that its determination, according to the preponderance of the evidence, was immaterial, for the choice of passages was matter of obligation, not of convenience merely.


If in point of fact there is no passage to which the name or description of 'the northern' has been given in the trade, then the question becomes one of construction, as applied to the known facts of the business. The inquiry is not as to which passage would be the quickest, or even the best, or which another contract would require of another vessel, but which is 'the northern passage' within the meaning of this contract. The evident purpose of the libelants was to keep the vessel as far as possible in the coolest of the passages that those engaged in the trade were accustomed to take, because it is found as a fact in the case that a cool temperature is necessary to the preservation of the cargo, and that the coolest water is north of the Gulf Stream, owing to the fact that there is a cool current between it and the American coast moving in an opposite direction.


Under these circumstances, if the testimony failed to show that any particular passage had acquired in the trade the name of 'the northern,' it was error to rule that the vessel might voluntarily take any other of the known or accustomed passages than one which would carry it in a northerly DIRECTION THROUGH THE COOLEST WATERS, AND into the coolest temperature. that this was the expectation of the parties is shown by the fact that the stipulation as to the passage was made 'for the benefit of the cargo,' the preservation of which required that it should be kept 'in as cool a temperature as possible, short of the freezing point.' The court should have ascertained from the evidence what passages there were between Gibralter and Boston which vessels werea ccustomed to take, and then determined which of them this vessel was allowed by its contract to choose as 'the northern.'


The decree is reversed, and the cause remanded for further proceedings in conformity with this opinion.


Reversing 14 Fed. Rep. 749.

The following state regulations pages link to this page.