
    Ashburner v. Balchen.
    Charter-party.— Warranty. — Measure of damages.
    
    Where a charter-party describes the vessel as “ of the burden of 190 tons, or thereabouts, ” it is a description, and not a warranty; and, if there were no fraud, the fact that her burden is 142 tons only, will not avoid the contract, though it may not be so easy to obtain shipments by, or insurance upon, vessels of her size.
    The measure of damages, in an action against a charterer, for refusing to furnish a cargo, is the stipulated contract price, deducting the net earnings of the vessel, during the time she would have been occupied in the charter voyage, including lay-days.
    Appeal from the general term of the Superior Court of the city of New York, where a judgment upon a verdict in favor of the plaintiff, had been affirmed.
    This was an action upon a charter-party, dated the 18th February 1847, made between the plaintiff and the firm of Schmidt & Balchen, but executed by Balchen only, for refusing to furnish a cargo.
    The charter-party purported to be made between A. E. Ashburner, of Philadelphia, managing owner of the schooner John Hartman, of Philadelphia, “of the burden of one hundred and ninety tons, or thereabouts, now lying in the port of New York,” and the firm of Schmidt & Balchen. By it, the plaintiff covenanted to receive a cargo on board the schooner, for a voyage to a safe and convenient port in Ireland; and the charterers agreed to furnish her with a full cargo of corn in bags, at New York, and 300 barrels of flour or meal; and to pay for the charter twenty-nine pence sterling per bushel, of fifty-six pounds, with five per cent, primage, and eight shillings two pence sterling per barrel for the flour or meal, payable on the discharge of the cargo. The charter .was to commence when the vessel was ready to receive cargo, upon notice to the charterers.
    It was shown upon the trial, that the vessel was ready to receive cargo, on the 2d March 1847, *of *263 ] which notice was ■ given to the charterers; but they refused to furnish a cargo, on the ground, that the schooner was registered at 142 tons only. The plaintiff proved, that freights had then fallen; that he was unable to obtain a charter for Europe; and was compelled to employ the vessel coastwise, at a less rate of compensation. He also showed, that when the contract was made, nothing was said relative to her tonnage, but merely that she could carry 8000 bushels grain, which, it was proved, she could do with safety. That the tonnage was stated in the charter-party, by the agent by whom it was drawn, supposing it to be a formal and immaterial part; and as he judged from the eye, that the vessel was of that tonnage, he so described her. The plaintiff also proved, under objection and exception, that it was common for such errors to exist in the register of vessels of her class.; and that the registered tonnage did not correspond with their capacity.
    The defendant moved for a nonsuit, which was denied. He then proved that the schooner was registered at 141||_ tons; and offered to show that a vessel of 140 tons register could not so readily have obtained freight in Ireland ; that shipments by her could not have been insured upon as good terms, as if she had been of 190 tons register; and that insurance had been refused upon cargo from New York to Ireland, by the John Hartman, on account of her size. These offers were overruled, and exceptions taken.
    A statement of the earnings and expenses of the schooner, during' the period which would have been required for her-voyage to Ireland and home, was then put in evidence.
    
      *The learned judge before whom the case was tried, charged the jury, that the description of the tonnage of the schooner, in the charter-party, was not a warranty ; but that if the jury should find it was fraudulently inserted therein, by the plaintiff or his servant, and that the defendant was deceived thereby, the fraud would constitute a defence; that if they found against the defendant, upon this point, he should be charged with the full amount of freight which he agreed to pay under the charter, and for the purpose of determining it, the jury must find how much cargo the vessel could safely have carried. The. defendant should then be credited with the amount of the schooner’s earnings, during the time that an average passage to Ireland, with the lay-days, would have occupied. The defendant’s counsel took an exception to the charge of the court.
    There was a verdict for the plaintiff for $4090.77; and the judgment entered thereon having been affirmed at general term, the defendant took this appeal.
    
      Stevens, for the appellant.
    
      Lord, for the respondent.
   Jewett, J.

(after stating the facts.) — On the trial, it was insisted, that the fact affirmed in the charter-party, that the vessel was of the burden of one hundred and ninety tons or thereabouts, was a warranty; but on the argument here, that was not insisted upon by the counsel who argued the cause for the defendant. It clearly was not intended as such by the parties. The construction of the contract was a question for the court, and the judge was right upon that point in his charge to the jury.

But it was insisted upon here, that the judge erred in his charge to the jury, in respect to the question of damages. I think, that the court was correct in its charge in that particular. It is well settled, that where a person charters a vessel for a particular voyage, agreeing to furnish a full cargo, at specified rates, and fails to furnish such cargo, he is answerable to the owner of the vessel, for what the vessel could have taken safely, had a full cargo been furnished at the specified rates, being allowed, however, what the vessel earned during the * 265 1 **me ^ *wou^ have occupied to perform the -* stipulated voyage. (Duffie v. Hayes, 15 Johns. 327; Abbott on Ship. 411 and note.)

The evidence in respect to errors committed in the registering of vessels, and whether the registered tonnage corresponded with the actual burden and capacity of the vessel to carry cargo, I think, was correctly admitted ; it was pertinent in respect to the question of a fraudulent representation of the tonnage of the vessel in question. It was wholly immaterial, whether the insurance officers in New York refused or not to insure a cargo for Ireland, on board of the plaintiff’s vessel, in consequence of the smallness of her registered tonnage. The plaintiff had not stipulated that she had any particular capacity; the evidence offered, therefore, that they did so refuse was properly rejected. The judgment should be affirmed.

Edmonds, J.

1. There was no error in admitting the evidence as to the common variance between the register tonnage and 'actual burden. It was competent, to show the circumstances under which the contract was made, and was incompetent only on the ground that the statement of the tonnage was a warranty, which I will, by and by, consider.

2. Nor any in excluding evidence as to a vessel of 140 tons register getting freight, or shippers getting insurance on her, as readily as if 190 tons.- These were considerations addressed to the parties themselves and not to the court; it was their business to have looked out for that, and the evidence could not have changed the contract. The legitimate effect of the evidence would have been, to let the defendants off, because they had made a bad bargain.

3. The objection that the court excluded the evidence as to the underwriters refusing to insure, is liable to the same answer. The evidence tended merely to show that the defendants had made a bad bargain.

4. The statement of the tonnage of the vessel was mere matter of description, as much so as the words that followed, “ now lying in the harbor of New York.” *And I confess, I do not comprehend the argu- f ^ ment, that a representation which is neither a *- warranty, nor fraudulent, is good ground of an action, when material.

5. As to damages, the true rule was laid down to the jury; for the hazard of getting a return-cargo, and what might have been made or lost upon the return voyage, is altogether too. remote to enter into the account between these parties.

Judgment affirmed.  