The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-21
United States District Court.
Before Hon. Judge Ingersoll.
DECISION IN ADMIRALTY.


Francis Leland agt. WiUiam Agnetc and Others.
The libel in this case is filed by the owner OF the
ship President Fillmore to recover the freight on
enc hundred and sixteen hogsheads of tobacco,
brought from New Orleans TO this port in August,
1868, under bill of lading which specified that the
tobacco was shipped deliverable at the tobacco in
spection wharf, to be carried to the port of New
York and there delivered to the respondents. The
ship arrived ut this port during the latter part OF
August and, as the yellow fever then prevailed at
New Orleans, she was compelled 70 undergo quaran.
tine Tobacco, however, was permitted to be brought
up to the city without undergoing quarantine. The
ship having been ordered to be discharged the Ii
bellant notified the respondents to get permit and
take their tobacco from the ship. The respondents
insisted that the bellant should lighter it mp to the
tobacco inspection wharf, but the hbelant refused
to do this telling them that if they did not send
lighters for 1T, it would be stored at the Atlantic
Docks at their expense. Thereup0n, the respond
ents sent lighters for the tobacco, and brought it up
to the CITY, The libeant then brought this suit for
the freight, and the respondents rendered and paid
into court the amount of freight less the expense
OF lghterage, claiming TO deduct that from the full
freight.
Held by the Court, that the contract of the
bacco inspection wharf, and that upon the
performance OF that contract on his part,
the payment of freight depends, unless
there has been waiver of performance by the
owner OF the goods, or some act ON his part which
prevents performance. That the lbellant was not
prevented from performing his contract by the ne
cessty Of discharging the ship at quarantine. The
tobacco was not detainei and he was permitted to
tranship it into lighters to bring it to the city, and
could have done 80. That usage or custom that
is consistent with the terms Of contract and is not
contrary 10 such TERMS may, in order to ascertain
what was the meaning of the parties to contract,
be proved. The object of proving the custom is,
that it may be known what the meaning Of the par.
ties was, when they adopted the use of particular
terms employed by them when they entered into
the contract. The object is to ascertain what the
parties meant. Therefore, a custom or usage con-
sstent with the terms of the contract and not con-
trary to such terms, may be proved. Thus, IN q
mercantile contract where certain mercantile tech
meal terms are used, 1t may be shown what by
usage, is meant by such mercantile technical
terms. II there has been any dispute as to what
was Tobacco Inspection wharf, II might have
been determined by proof of usage. But when
the terms Of the contract are express precise, and
Observation-Disclosures no technical mercantile
terms are used in it-when there is no uncertain
ty in regard to it-ovidence cannot be introduced
to vary its apparent import and to show that, by
usage and custom, under certain circumstances, the
contract need not be kept and performed according
to its terms. Usage cannot be set up to vary the
terms OF an express contract. usage may be
proved to give construction to contract, but is
not allowed to alter what the parties have express
~ and clearly agreed upon. A usage may be proved
to explain and control a general rule, but not to
alter that which has been agreed upon. usage is
proved to ascertain what the parties to contract
mean by the use Of certain TERMS but not to alter
what they have agreed upon. That the usage at
tempted to be proved by the lbellant, authorizing
him to deliver these goods at Quarantine under
these Giro umstances, in spite Of the clause in the
bill Of lading is not consistent with the contract,
but contrary to it, and proof Of it cannot be admit
ted: That the proof offered by the lbellant is in.
sufficient to establish such usage even if it could
be admitted That the receipt Of the tobacco by the
respondents after the notice given them by the Ii
bellant, was waiver by them of their right to de-
mand delivery at Tobacco Warehouse wharf. De-
cree, therefore for bellant for $496 &c. the amount
If thn rn
spondents subsequent to the tender to be deducted
therefrCm,