[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 261 It appears that, when 362 tons of cargo had been placed upon the steamer, she drew fourteen feet of water. The complaint of the defendant is, that he was not allowed to load her with 700 tons in weight, or that she could not carry 700 tons in weight without drawing more than fourteen feet of water. It is insisted, that the contract gave the defendant the absolute right to load the vessel to the extent of 700 tons, in weight, and even to a greater weight, provided such excess did not sink her below fourteen feet. It is argued, in effect, that tons in weight and tons in measurement are the same thing; and that the expressions are simply different terms to indicate the same idea. This is an error, I apprehend. A ton, in measurement, is forty cubic feet. (McCulloch's Com. Dic.; Webster's Dic.) A ton, in weight, is 2,240 pounds. A vessel, having the capacity of 1,000 tons measurement, has space or room to the extent of 40,000 cubic feet. This, however, has nothing to do with the question of the weight she can carry. If this space is occupied by straw goods, wooden ware, or the like, the whole space might be occupied, without sinking the vessel to the depth of fourteen feet. If, on the contrary, the cargo consisted of lead or iron, the depth might easily be obtained before one-tenth of the space should be occupied. There is no identity, nor even similarity between tons of measurement and tons of weight. There is no more resemblance than between the lightness of the day, and the lightness of the cork, or other material substance. In each instance, the same word is used, but, in a sense and meaning, quite different.
The plaintiff stipulated, that his vessel should carry out 700 tons measurement of assorted cargo, if she was not thereby made to draw more than fourteen feet of water. We are not informed, whether the term, an assorted cargo, has any especial commercial signification, or, if so, what it is. If it stands upon its general meaning, it imports the idea of a miscellaneous cargo; a freight distributed into various sorts, or kinds, or classes, in short, whatever the defendant should reasonably select, as the kinds or sorts of goods, with *Page 263 reference to his own interests. If the defendant chooses to mingle railroad iron, bar lead, pork, beef, molasses, dry goods, crockery, wooden ware, straw goods, he has the right to do so, and he can load the vessel with these articles, until she draws the given depth of water. It is not stated in the admission, that she was loaded to 362 tons by measurement with the goods enumerated, and that she was unable to carry these tons of measurement without exceeding her depth of water. It is simply said, that she was loaded to the extent of these tons, "with the goods contained in schedule No. 1." This schedule contains beef, pork, ham, lard, lemons, eggs, brooms, which, to an uninstructed reader, would import a mixed or assorted cargo. How many tons of measurement these goods occupied is not stated. The footing up is forty-four tons, by weight, ninety-one and an eighth tons, by measurement; "our cargo, 225, 34, 40," with a total below of "360, 39, 40." Whether this final result is tons weight, or tons measurement, or tons of any character, does not appear, and whether the particular articles specified in schedule number one, form either and which of these items, is not clear. If this footing is of tons by measurement, and if it falls fairly within the description of an assorted cargo, then the defendant is in a position to raise the first point, on the writing, to wit: That the limitation of fourteen feet only applied, in the case of a cargo exceeding 700 measured tons. When it simply appears that freight to the amount of 362 tons was placed on board, but it does not appear that it was tons by measurement, and does not appear that it was an assorted cargo, the question is not reached.
Assuming the question to be fairly before us, the defendant can only succeed in his defence upon proof that the plaintiff refused to allow the freight to be put on board, although the fourteen feet draft of water had not been reached. This was the defendants' claim, in his answer: "Fourth, that when the said vessel departed on her said voyage, loaded as aforesaid, she neither carried seven hundred tons cargo, nor did she draw fourteen feet of water." The defendant was entitled to load *Page 264 with freight to the extent of the storage room of the vessel, without limit, except as regulated by the draft of water. That limit was for the plaintiff's security, and was inexorable. This qualification applies to the 700 tons, as well as to the expression, "or more." The fair construction of this clause for the outward, as well as for the return voyage, was, that this draft of water, should, in no case, be exceeded, and under the circumstances of this case, there is no contract to carry any amount, except subject to this limitation. I can discover no ground of defence in any branch of the case.
Judgment should be affirmed with costs.