[253] to the expectations and understanding of liver the cargo, the expense thereof is all parties to this contract, or of any other chargeable to the receivers of the goods, recontract for the carriage of sugar from gardless of any local port customs. Java."

The question that remains is, upon which of the parties the expense of the lighterage should fall. The answer, we think, must be found in a proper construction of the contract between them.

We do not feel constrained to go into an extended consideration of the authorities cited in the briefs of counsel, but shall refer to two or three cases which, in some of their features, seem to be applicable.

or as near

The case of The Alhambra, L. R. 6 Prob. Div. 68, was where the charter party provided that the vessel should go "to a safe port in the United Kingdom, thereunto as she could safely get, and always lay and discharge afloat. Lighterage (if any) always at the risk and expense of the cargo."

It cannot be fairly claimed under the evi-
dence that the expense that would have
been occasioned to the owners of the vessel,
if they had removed or taken down the
mast, would have been trifling or inconsid
erable. There was some evidence that, in
a few instances, the topmasts of vessels had
been taken down in order to permit them to The charterers gave orders to the vessel
pass under the bridge, and that the expense to proceed to Lowestoft and there discharge
in each case was small. But those were the cargo. The average high water in that
cases of vessels with wooden masts, so con-harbor was about 16 feet, and average low
structed as to permit the topmast to be water about 11 feet. The master objected to
lowered. The Benlarig's masts were wholly discharging in Lowestoft harbor, notwith-
of steel, and the testimony of her master standing that the purchasers of the cargo
was that if it became absolutely necessary gave him notice that they were prepared at
to make the vessel pass beneath some ob- their own expense to lighter the vessel in
struction lower than the top of the masts, Lowestoft roads sufficiently to enable her to
the masts would either have to be cut or lie always afloat in Lowestoft harbor, if
removed wholly out of the ship. What cost necessary, should her draft of water so
would have been caused by cutting or re-require. The vessel went to Harwich as the
moving the steel mast does not appear. But nearest safe port and there discharged the
the courts below concurred in regarding
the mutilation or destruction of the ship's
masts as a serious affair.

cargo. The owners of the cargo brought
suit for breach of contract, and offered evi-
dence to show that it was the custom of ves-
sels which were too deep to enter the port
of Lowestoft to discharge *a portion of their[255]
cargo in the roads outside, and that it could
be done with reasonable safety. The cargo
owners recovered a judgment, but the court
of appeals reversed, that court holding that
Lowestoft was not a safe port for the vessel
within the meaning of the charter party,
and that the custom shown by the charter-
ers was inadmissible.

ter party provided that the vessel should proceed from Baltimore "to a safe, direct Norwegian or Lanish port, as ordered on signing bills of lading, or as near thereunto as she can safely get, and always lie and discharge afloat."

In such a condition of affairs we think that resort to lighterage was natural and reasonable and within the obvious and fair import of the terms of the charter party. The clause, which is claimed to give the charterers or their assigns the right to appoint the dock in which to discharge cargo contains conditions that the port must be safe, and that the vessel must discharge, always afloat, either at a safe port or so near the port of discharge as she can safely get. This case was cited with approval by this It would not be a just exercise of the right court in The Gazelle, 128 U. S. 474, 32 L. to select a dock in getting to which the ves-ed. 496, 9 Sup. Ct. Rep. 139, where the charsel could not always be afloat or to which she could not safely get. A ship could not be said to be afloat, whether the obstacle encountered was a shoal or bar in the port over which she could not proceed, or a bridge under or through which she could not pass; nor could she be said to have safely reached a dock if required to mutilate her hull or her permanent masts. [254] *Any doubt that might be felt as to this construction of the clause will be relieved by the express language of § 4: "All goods to be brought to and taken from alongside of the ship, always afloat, at the said charterers' risk and expense, who may direct the same to the most convenient anchorage: lighterage, if any, to reach the port of destination, or deliver the cargo at port of destination, remains for account of receivers, any custom of the port to the contrary notwithstanding." Here, again, is recognized the right of the ship to be "always afloat." The anchorage directed must be the "most convenient;" which must mean convenient as well for the ship as for the consignees; and, finally, if lighterage is necessary, either to reach the port or to de

The charterers tendered to the master for signature bills of lading, ordering the vessel to the port of Aalborg, in Denmark, as the port of discharge, "to be landed at Áalborg, or as near thereto as the vessel cam safely get." The master refused to sign the bills of lading for the reason that Aalborg was not a safe port. Aalborg is situated in Denmark on the Limiford inlet, about 17 miles from its mouth. Owing to a bar at the mouth of the inlet, there was a depth of water of only 10 or 11 feet. The draft of the Gazelle loaded was about 16 feet. The only place of anchorage for a vessel that cannot cross the bar is off the mouth of the inlet, where vessels were accustomed to discharge into lighters. Thereafter the master filed a libel for demurrage in the district court of the United States for the district of Maryland, whose judgment, sustaining the libel and dismissing the cross

libel of the charterers, was affirmed by the
circuit court. This court said, through
Mr. Justice Gray:

the ship could not reach it without cutting off or taking down her masts; and of that opinion were the divisional court and the "By the express terms of the charter par- court of appeal (5 Com. Cas. 59), A. L. ty the charterers were bound to order the Smith, L. J., in the latter court saying "it vessel 'to a safe, direct Norwegian or Da- is abundantly proved that Manchester, nish port, or as near thereunto as she can taken by itself, was not a safe port for this safely get and always lay and discharge vessel, because it was found as a fact afloat.' The clear meaning of this is that that it would have been necessary she must be ordered to a port which she to dismantle the ship to enable her to get can safely enter with her cargo, or which, under Runcorn bridge, which is the first at least, has a safe anchorage outside, bridge vessels going up the canal to Manwhere she can lie and discharge afloat. Dahl chester have to pass." Collins, L. J., was v. Nelson, L. R. 6 App. Cas. 38; The Al- of the same opinion. And Vaughn Wilhambra, L. R. 6 Prob. Div. 68. The char-liams, L. J., said: "On the findings of the terers insisted upon ordering her to the last award it is perfectly plain that in a port of Aalborg. The circuit court has commercial sense the port of Manchester [256]*found that Aalborg is in a fiord or inlet, was not a safe port for the Vanduara to go having a bar across its mouth, which it to." was impossible for the Gazelle to pass, either in ballast or with cargo; and that the only anchorage outside the bar is not a reasonably safe anchorage, nor a place where it is reasonably safe for a vessel to lie and discharge."

This case is pertinent as holding that an overhead bridge which prevents access to the place designated for the discharge quite as effectively renders it unsafe for the ship as a sandbar or other obstacle under the water. The view of the circuit court of appeals, The charterers offered evidence to show that the construction put upon the charter that by the custom of trade between Balti-party by the district court was within its more and the Atlantic ports and the ports of Norway and Denmark, Aalborg was recognized as being, and understood to be, a safe, direct port of Denmark, within the meaning of the charter party. In respect to which this court said: "Evidence of a custom to consider as safe a particular port, which in fact is not reasonably safe, would directly contradict the charter party, and would, therefore, be incompetent as matter of law."

In Re An Arbitration between Goodbody and Balfour, Williamson, & Co. (4 Com. Cas. 119) the facts were that a cargo of wheat per the ship Vanduara had been sold in a contract containing the clause "shipped per Vanduara, sailed, or about to sail, as per bills of lading dated, etc., to any safe port in the United Kingdom of Great Britain and Ireland, or to Havre, or to Dunkirk, or to Antwerp,

letter but not within its spirit, because "an application to novel circumstances of clauses intended for a different set of circumstances," we cannot accept. We are unable to see anything in the undisputed facts of the case that warrants any other construction of the language employed than that suggested by its ordinary meaning.

The decree of the Court of Appeals is reversed, and the decree of the District Court is affirmed, with interest thereon from the time of its entry.

*NORTHERN CENTRAL RAILWAY COM- [258 PANY, Plff. in Err.,

บ.

STATE OF MARYLAND.

(See S. C. Reporter's ed. 258-270.)

calling at Queenstown, Falmouth, or Ply- Contracts reserved power to alter-amend

ment of corporate charter.

state statute fixing the rate of taxation on

the gross receipts of a railroad company, enacted for the purpose of settling by agreement a pending controversy as to a charter right of the company to exemption from taxation, must, notwithstanding its contractual form, be regarded as an amendment to such charter, and therefore subject to repeal by reason of a provision of the state Constitution in force at the time of its passage, reserving the power to repeal, alter, or amend corporate charters.

mouth, for orders as per charter party, vessel to discharge afloat." The vendees declined to take the papers on the ground that A by the bills of lading the cargo was stated to have been shipped upon the Vanduara "to discharge at a safe port in the United Kingdom, Manchester excepted," and that such bills of lading did not comply with the contract for delivery in any safe port in the United Kingdom. It was found in the special case stated for the decision of the court that "the Vanduara when loaded with the said cargo would have been unable to go up the Manchester ship canal to the Manchester docks, because the heads of her lower main and mizzenmasts would have been Argued October 16, 1902. Decided Decem-higher than the limit fixed by the canal company's regulations for passing under the Runcorn bridge."

[No. 43.]

ber 1, 1902.

The vendors argued that the addition to IN ERROR to the Court of Appeals of the

the bills of lading of the words, "Manchester excepted," was immaterial, inasmuch as Manchester, in any event, was not a "safe [257] port” in the sense *of the bills of lading, as

State of Maryland to review a judgment NOTE. As to reserved power to alter, amend, or repeal corporate charters-see note to Green. wood v. Union Freight R. Co. 26 L. ed. U. S.. 961.

which affirmed a judgment of the trial court | Company shall continue to bind said com-
denying a claim of a railroad company to a
contract exemption from a tax imposed by
a statute of the state. Affirmed.

See same case below, 90 Md. 449, 45 Atl. 465, 31 Atl. 1108, 93 Md. 737.

pany and its property as fully as before the
consolidation herein above authorized, or
that the said existing contracts, engage-
ments, and liabilities shall be duly adopted
and assumed by the consolidated company[260]
except as herein expressly altered or re-
scinded; second, that all laws heretofore
made in reference to the said Baltimore &
Susquehanna Railroad Company and not re-
pealed or modified by the legislature of Mary-
Îand, and all ordinances relating to said com-
pany heretofore made and not repealed by
the mayor and said council of Maryland,
shall be binding and operative upon the said
consolidated company, so far as its prop-
erty or its operations may be within the ju-
risdiction of the state of Maryland or the
city of Baltimore respectively, and so far as
the laws or ordinances may be applicable to
and consistent with the new oganization of
the said consolidated company; third, that
the consolidated company shall have power
from time to time to establish its capital
stock at an amount not exceeding eight mil-

Statement by Mr. Justice White:
The Baltimore & Susquehanna Railroad
Company was chartered by an act of the leg-
islature of Maryland in 1827, with author-
ity to construct a railroad from the city of
Baltimore to the Susquehanna river. The
charter contained a provision declaring that
the "shares of the capital stock of the com-
pany should be deemed and considered per-
sonal estate, and should be exempt from the
imposition of any tax or burden." It was
conceded by both parties in the discussion
at bar that the effect of this provision, as
interpreted by the settled adjudications of
the state of Maryland, was to forever ex-
259]empt the company and its property from
taxation. It was also conceded that at the
time this act was passed there was no provi-
sion in the Constitution of the state of Mary-lions of dollars, the same to be represented
land restricting the legislative power to ex-
empt, and that no reservation of the power to
repeal, alter, or amend was found in the Con-
stitution of the state, or expressed or im-
plied in the charter in question. In 1854
an act was passed by the Maryland legisla-
ture, designated as chapter 250 of the laws
of that year. The title of this act was as
follows:

"An Act to Authorize the Consolidation of the Baltimore and Susquehanna Railroad Company with the York and Maryland Lin Railroad Company, the York and Cumbe: land Railroad Company, and the Susquehanna Railroad Company, by the Name of the Northern Central Railway Company."

The companies referred to in this title other than the Baltimore & Susquehanna Railroad were corporations owing their existence to charters granted by the legislature of Pennsylvania, and which were operating railroads in that state connecting with the Baltimore & Susquehanna. The effect of the consolidation was to create one corporation owning and operating one line of railroad from and across the state of Maryland into and across the state of Pennsylvania. The act of 1854 authorizing the consolidation, the title of which has just been stated, by its first section empowered the stockholders of the Baltimore & Susquehanna Railroad, upon their acceptance of the act, "to unite and to consolidate their company or corporation with the York & Maryland Line Railroad, the York & Cumberland Railroad Company, and the Susquehanna Railroad Company of the state of Pennsylvania, so as to form and constitute one company or corporation, to be called the Northern Central Railway Company, on such terms and conditions, and conformably to such agreements and regulations, as the said several companies shall respectively determine and adopt, subject, nevertheless, to the following general provisions: First, that all existing contracts, engagements, and liabilities of the said Baltimore & Susquehanna Railroad

by such number of shares, and the said con-
solidated company shall have power to issue
their bonds convertible into stock on such
terms as the company may prescribe, and to
secure the same by one or more mortgages
for any such amounts as they may find nec-
essary for paying off any existing debt of
the company.'

After providing for a board of directors
and officers of the new or consolidated com-
pany, the act proceeded to say: "That the
company shall make and use a common seal,
and possess all the corporate powers and
privileges, and be subject to all the duties
and obligations, not inconsistent with this
act, and its general intent, which are ex-
pressed in the charter heretofore granted to
the said Baltimore & Susquehanna Railroad
Company, and its supplements: Provided,
that this clause shall not be construed to
deprive the parties to the said consolidated
company of the right or authority to make
such provisions and regulations, notwith-
standing said original charter and its sup-
plements, as may be necessary to create and
establish said consolidated company, and
bring its organization into agreement and
consistency with the terms and conditions
of the charter of the several companies of
which the said consolidated company shall
be composed: And provided also, That the
parties to the consolidated company shall
be authorized and empowered to adopt *and[261]
conform the organization of the said con-
solidated company to such provisions or en-
actments as may be required by the legisla-
ture of the state of Pennsylvania, touching
the name of said corporation, and of the
board of president and directors in said con-
solidated company, and the conditions re-
lating to their appointments."

The 2d section of the act, among other things, provided that "this act shall take ef fect whenever and as soon as the said parties hereinbefore referred to shall have agreed to consolidate their several companies into one, and shall have settled, deter

mined, and agreed upon the terms and conditions of such consolidation in conformity with the provisions of this act.

that time there was no general power reserved in the Constitution to repeal, alter, or amend charters, and that no such reserIn pursuance of the authority thus con- vation was found in the charter of 1827. ferred upon the Maryland corporation, and But the court deemed it unnecessary to pass in virtue of power granted by the legislature upon the question of whether the consolidaof Pennsylvania to the three Pennsylvania tion act of 1854 had endowed the new comcorporations, the consolidation was effected, pany with the exemption from taxation exnew stock was issued, and a company came pressed in the act of 1827, because, concedinto being known as the Northern Centraling, arguendo, this to have been the case, Railway Company, whose affairs were managed by the new board of directors and officers elected or appointed pursuant to the new charter. The corporation, in availing itself of the provisions of the law of 1854, executed articles of consolidation. Although the act of 1854 only provided that the new corporation should have the corporate "powers and privileges" of the constituent bodies, it is stated in argument that the articles of consolidation executed under the law purported to vest the new corporation with, not only the right to the property rights and privileges of the old companies, but also with their immunities. In 1854, at the time the act of consolidation was passed, the Maryland Constitution (of 1850) was in force, and provided in § 47, article 3, as follows:

"Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes; and in cases where in the judgment of the legislature the object of the corporation cannot be attained under general laws. All laws and special acts pursuant to this section may be altered from time to time or repealed."

it was held that as the consolidation had
created a new company with new stock, new
franchises, new rights, and new officers, the
charter of such newly created company as
to all its provisions, including the exemp-
tion from taxation, if such exemption were
found in it expressly or by implication, was
subject to the power to repeal, alter, and
amend, reserved by the Constitution. Con-
struing the acts imposing the tax which
were sued for in connection with *other laws [263]
of the state of Maryland, the court held that
the exemption from taxation had been re-
pealed. 44 Md. 162.

The cause on being remanded to the trial court remained untried in 1880. In that year the legislature of Maryland passed an act on the subject of the taxation of the Northern Central Railway Company. The title of that act purported to adjust and settle finally by agreement all pending controversies on the subject of taxation between the state of Maryland and the railroad company. The preamble referred to and recapitulated the organization of the Baltimore & Susquehanna, the consolidation by the act of 1854, and the pending suits on the subject. The title and preamble are reproduced

in the margin.†

An Act to Adjust and Settle Finally, by Agree-
ment, All Pending Controversies between
the State of Maryland and the Northern
Central Railway Company, by Subjecting the
Franchises and Property of Said Company
within This State to Taxation for State Pur-
poses to a Certain Extent, and by Providing
for the Payment of a Certain Indebtedness-
Claimed by the State of Maryland to Exist
on the Part of Said Northern Central Rail-
way Company to Said State of Maryland,
being an Act Supplementary to the Act of
Eighteen Hundred and Fifty-Four, Chapter
Two Hundred and Fifty, Entitled An Act to
Authorize the Consolidation of the Baltl-
more and Susquehanna Railroad Company
with the York and Maryland Line Railroad
Company, the York and Cumberland Rail-
road Company, and the Susquehanna Rail
road Company, by the Name of the Northern
Central Railway Company.

In the years 1872 and 1874 the legislature [262] of Maryland passed *an act imposing a tax of 1⁄2 of 1 per cent upon the gross receipts of all steam railroad companies incorporated by the state and doing business therein. Two suits were thereafter (the one in 1873 and the other in 1874) brought by the state of Maryland against the Northern Central Railway Company to recover the 2 of 1 per cent tax upon the gross receipts of that company from that part of its railroad lying in the state of Maryland. The defense of the company was substantially, first, that it was entitled to the exemption from taxation granted by the act of 1827 to the Baltimore & Susquehanna Company; that such exemption was existing and had not been repealed, and, if repealed, the repealing act was void because an impairment of the obligations of the contract resulting from the act of 1827 and the transmission of its immunities to the Whereas, a controversy has arisen and exists: new company created by the act of 1854. The causes were decided in the trial court in between the state of Maryland and the Northern Central Railway Company in reference to the favor of the corporation. The cases were rights of the state of Maryland to subject to taken to the court of appeals of the state of taxation the franchises and property of the Maryland. That court (in 1875) reversed Northern Central Railway Company, the said the judgment of the court below, and re- company claiming exemption of the same from manded the cases for a new trial. The taxation upon the grounds that among the Court of appeals in its opinion conceded that terms and conditions of the union and consolwhen, in 1827, the charter of the Baltimore & idation of the several companies by which said Northern Central Railway Company was Susquehanna Railroad Company was grant formed is one, that the latter should have all ed there was no restriction in the Constitu- the rights, privileges, and immunities of each tion of the state on the power of the general of said companies, which said terms were enassembly to make a contractual exemption tered into under the authority given by the act from taxation. It also conceded that at of Maryland of eighteen hundred and fifty-four,

[264] *By the 1st section of the act it was pro In 1890 the state of Maryland passed a vided that the Northern Central Railway general law entitled "An Act to Provide for Company "shall have and possess all the pow-State Taxation on the Revenues of Railers, rights, privileges, and immunities, and road, Telegraph, or Cable, Express or Transbe subject to all the duties and obligations, portation, Telephone, Parlor Car, Sleeping which are expressed in the act of assembly Car, Safe Deposit, Trust, Guaranty, Fidelof Maryland of 1827, chapter 72, entitled, ity, Oil or Pipe Line, Title, Insurance, ElecAn Act to Incorporate the Baltimore & Sus-tric Light or Electric Construction Compaquehanna Railroad Company, and all the nies Incorporated under Any General or franchises and property of every descrip- Special Law of This State and Doing Busition and gross receipts of said Northern ness Therein." [Md. Laws, chap. 559.] By Central Railway Company within the state this act a tax of 1 per cent was imposed of Maryland, shall be subject to taxation for state purposes to the extent of an annual upon the gross receipts "of all railroad comtax of one half of one per cent upon the under the authority of this state and doing panies worked by steam incorporated by or gross receipts from its railroad and fran- business therein." Under the asserted auchise lying within the state of Maryland, thority of this statute a tax of 1 per cent and from all other sources within this state, was levied by the state in each of the years and said franchises, property, and gross re- 1891 to 1895, both inclusive, upon the gross ceipts shall not be subject to any other tax receipts of the Northern Central Railway under the laws of the state of Maryland; Company for the year preceding, and these "The act further provided for the taxes were paid by the company under propayment of a designated sum by the railroad test. Upon demand, however, being made in company for past taxes, declared said pay. 1896 for payment of the tax of 1 per cent ment should acquit such taxes, and directed upon the gross receipts for the year 1895, the discontinuance of all suits pending compliance was refused. A tender by the against the company for such taxes. It company of the taxes, calculated at the rate was, however, provided that its provisions of 1/2 of 1 per cent, was refused by the state, should not be operative until the payment and the present action was thereupon which the act required had been made and brought to recover the taxes thus asserted [265]until the acceptance of the provisions of the to be due and payable under the act of 1890. act by the stockholders of the company. The The company defended on the ground that act was accepted, the money was paid, and the act of 1880 was a contract protecting it[266 the suits were discontinued. At the time from a higher rate of tax on its gross reof the passage of this act of 1880 the Con- ceipts than in that act specified; that the stitution of Maryland of 1867 was in force, act had not been repealed; that if repealed and therein it was provided (art. 3, § 48) the repealing statute was void, because it "Corporations may be formed under gen-impaired the obligations of the contract reeral laws, but shall not be created by sulting from the act of 1880. There was special act, except for municipal purposes judgment in favor of the corporation. The and except in cases where no general case was taken to the court of appeals of laws exist providing for the creation of cor- the state of Maryland and the judgment was porations of the same general character as reversed, the court holding that the provithe corporation proposed to be created, and sions of the act of 1880 had been repealed any act of incorporation passed in violation by state statutes to which it referred, and of this act shall be void. .. All char-that the repeal did not violate the Constiters granted or adopted in pursuance of this section, and all charters heretofore granted and created, subject to repeal or modification, may be altered from time to time, or be repealed." In accordance with the act of 1880 the company year by year paid the tax on its gross receipts.

chapter two hundred and fifty, which, more-
over, declared that said Northern Central Rail-
way Company should have all the powers and
privileges expressed in the charter granted by
the state of Maryland to the Baltimore & Sus-
quehanna Railroad Company, among which
privileges and Jmmunity from taxation.

And whereas, the state of Maryland having, by the act of eighteen hundred and seventytwo, chapter two hundred and thirty-four, and the act of eighteen hundred and seventy-four, chapter tour hundred and eight, imposed an annual tax of one half of one per centum on the gross receipts of all railroad companies worked by steam incorporated by or under the authority of said state of Maryland, and claiming that under said acts the gross receipts of said Northern Central Railway Company are liable to said tax, have instituted suits to recover the same.

And whereas, the property of said company

tution of the United States by impairing the obligations of the contract, as asserted by the company, because the corporation held, its rights subject to the power to repeal, alter, and amend, as reserved in the Constitution at the time both the acts of 1854 and 1880 were passed. 90 Md. 449, 45 Atl. 465. has been also assessed as liable to taxation for county and municipal purposes.

And whereas, the said company has the right to have the question at issue between it and the state of Maryland carried to the Supreme Court of the United States to be there decided.

And whereas, it has been represented to this general assembly that what would be the ultimate decision of said question is a matter of great doubt, and it is deemed to be, moreover, just and proper that an equitable settlement should be made of the matters so in controversy, and it having been represented to this general assembly that the said Northern Central Railway Company, for the purpose of making such settlement, is willing to pay a tax of one half of one per centum on the gross receipts within this state, upon the terms and conditions hereinafter set forth; now, therefore