ATWATER FUELS, Inc. v. POCAHONTAS FUEL CO., Inc., 185 F.2d 337

PER CURIAM. p2ajntiff; Pocahontas Fuel Company Incorporated brought a civil action jn the ,11, 1 n j . , * _ * t0 llave been earned by lts vessel S- SFreeman on a voyage from Hampton Roads, Virginia, to l1 all River, Massachusetts, with a cargo of coal for the defendant, Atwater Fuels, Inc. Trial without jury in the court below resulted in a verdict for the plaintiff in the amount alleged as due and Qwi ¡n the compiaint; with interest ^ 1 ,« , £ 1 . thereon and costs, and the defendant appea]ed Federal jurisdI.clion under 28 U.S.

C.A. § 1332(a) (1), (diversity of citizenship and amount in controversy) is adequately alleged and clearly established by conceded facts.

Tllere is no dispute that the Freeman -carried a cargo of coal from Hampton Roads to Fall River for Atwater’s account by prearrangement between the parties, or that gfog was delayed in loading at Hampton Roads beyond the date agreed upon for the voyage by reason of Atwater’s faiIul;e t0 Provide a ca^°- Tlle PrinciPal fiuesti°n on this appeal is whether Atwater, arrangin& with Pocahontas for the voyaffe *be Freeman under consideration, undertook any obligation to pay demurrage tbe event of delay in loading caused by iadure to provide a cargo, The parties did not enter into a formal charter party with respect to the voyage of the Freeman with which we are here concerned.

That voyage was arranged for between the executive officers of the corpo-rations involved orally, and by supplemental and confirmatory letters. And all that they specifically settled was that the named vessel was to report at Hampton Roads to load a cargo of coal for Atwater on or about a certain date.

That is to say, in the arrangements between the parties for this particular voyage no provisions were made with respect to providing the vessel with a suitable ¡berth, with the amount of space available in the ship for cargo, with the amount of cargo to be carried, or with free time for loading and discharging cargo and for demurrage, and moreover nothing was said with respect to the costs of towing and docking, and loading and discharging, or indeed even with respect to the freight' to be charged.

Largely on the basis of the 'sketchiness of the arrangements made by the parties with , , t- ) _ t respect to the Freemans voyage, but also to some extent on the basis of the relative credibility of opposing witnesses, the District Court concluded as a matter of fact that the parties understood and agreed that that voyage was to be undertaken undei the terms and conditions embodied in a certain fully ¡integrated written charter party for a series of like voyages for Atwater by . . .

L’ , , a sister ship of the Freeman owned by Pocahontas named the James Ellwood Jones which the parties 'had entered into several months before, and which, with oral modifications, was still in force at the time the Freeman made the trip with which we are here concerned. The District Court therefore concluded that demurrage for the Freeman should be computed on the , . , , basis provided m the written charter for the computation of demurrage for the James Ellwood Jones, as the plaintiff alleged in its complaint, and consequently the court entered the judgment from which this appeal was taken.

The understanding and agreement of the parties obviously poses a question of fact, and a study of the record discloses ample evidence to sustain the District Court’s conclusion. Indeed the conclusion ,,,, „ , __. j reached below seems to us to be supported , ,, ., , by the more persuasive evidence and the : , , . , . . ,, clearer and more logical inferences there- „ „ . , , , from. Certainly we cannot say that the _. . _ , , . , . . .. , , District Courts ultimate finding is clearly , r~->, . t— , t. , erroneous , Rule 52(

a) Fed.Rules Civ. r0C' ' In view of this conclusion the appellant’s contentions with respect to asserted errors made by the Court below in admitting certain evidence do not call for discussion. The judgment of the District Court is affirmed.