The John H. Pearson
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]
WAITE, C. J.