This case was submitted to the court below on an agreed statement of facts. Some time prior to February 6, 1926, the Petroleum Export Corporation had sold 50,000 eases of kerosene to be shipped from the port of Los Angeles in February or March and was negotiating with the Kerr Steamship Company, Inc., for the transportation of the shipment from the latter port to the port of Shanghai, China. The shipper was informed by the carrier that the motorship Silverpine was due to arrive at the port of Los Angeles about April 2, and the purchaser assented to a shipment by that date. A contract of affreightment was thereupon entered into containing the provision, “Expected time of loading, late March/early April.” On or prior to March 30 the carrier notified the shipper that the vessel would not be available for loading at Los Angeles until after the middle of April, and the purchaser, upon learning of the delay, rescinded the contract of sale. The shipper then notified the carrier that it intended to cancel its contract of affreightment. There was further correspondence between tho parties having no material bearing on our present inquiry. It was also stipulated that at the time the affreightment contract was entered into’ the vessel named therein was in such position that she might reasonably be expected to load at Los Angeles within tho time provided in the contract; that the expectation of the carrier and its agents that the vessel would be ready for loading in late March or early April was an honest one and was based upon reasonable grounds; that any delay in the arrival of the vessel and the loading of the cargo at Los Angeles was not the result of any negligence or fault on the part of the carrier or its agents; and that the carrier at all times used every means known to get the vessel to the port of Los Angeles within the time provided in the contract. The vessel did not arrive at the port of Los Angeles until April 21, and was then unable to arrange for a full cargo to take the place of the cargo covered by the contract in suit. The present libel was thereupon filed to recover damages for breach of the affreightment, contract, and from a decree in favor of the libelant the respondent has appealed.

If the carrier had definitely agreed that the time of loading should be late March or early April, it will perhaps be conceded that a delivery of the vessel for loading on April 21 would not satisfy the requirements, of the contract. But the carrier did not so agree. The language of the contract is “expected time of loading,” and the expected does not always happen. Webster defines “to expect” as, to look forward to as certain or probable. A definite statement as to the time of loading would amount to a warranty, while the expected time of loading amounts to nothing more than a representation. Thus in Heiskell v. Furness, Withy & Co. (C. C. A.) 4 F.(2d) 977 , the language of the contract of affreightment was “expected to sail from Newport News and Norfolk last half July/August,” but the ship did not in fact sail from Newport News until two or three weeks after the expected time. In construing this contract the Circuit Court of Appeals for the second circuit, speaking through Judge Hough, said:

The appellee attempts to distinguish this ease from the Heiskell Case because the contract there involved provided that delay was at the risk of the owner; but that provision was not the basis for the decision. The court below had construed the term “owner” to mean the owner of the ship, and not the owner of the cargo; but the appellate court held that this construction was erroneous. This seems to have been the principal reason for referring to that provision of the contract at all, for in stating the question for decision the appellate court said:

For other cases construing the meaning of the term “expected,” see Johnson’s Adm’r v. McCune, 27 Mo. 171 , and Atlantic Coast Line R. R. Co. v. Wells, 130 Ga. 55 , 60 S. E. 170 .

In Corkling v. Massey, L. R. 8 C. P. 395, cited and relied on by the appellant, the provision of the agreement was that the vessel was expected to be at Alexandria about the 15th of December, and it was held that this was a warranty and not a representation. But in that case the breach alleged was, not that the ship was not at Alexandria about the 15th of December, hut that she was not expected to be at Alexandria on that date and was in sneh part of the world and under such engagements'that she could not perform her other engagements and arrive at Alexandria by that date, and the court held that the representation was a warranty that the ship was expected to he at Alexandria about the date named, not a warranty that she would be there in fact.

In Sanders v. Munson (C. C. A.) 74 F. 649 , cited by the appellant, the charter party provided for delivery of the ship about April 10, to be used in the banana trade, and it was held that delivery on April 27 did not satisfy the requirements of the contract. The wide difference between the two contracts is obvious.

The present case is not free from difficulty and involves some hardship. No doubt, the appellant intended to contract for space to ship the kerosene within the time provided in its contract of. sale, hut unfortunately it failed to do so, and the court cannot make a new contract for it. It offered testimony tending to show that it would not have entered into the affreightment contract were it not for the assurance given that the ship would arrive at Los Angeles about April 2; but this testimony would vary the terms of the written contract because, as already stated,, the agreement that the vessel was expected to arrive in the port of Los Angeles on a certain date was not the equivalent of an agreement that she would in fact arrive on that date.

The appellant further objected to that portion of the agreed statement of facts to the effect that the appellee had used every effort to get the ship to Los Angeles on time and was guilty of no negligence in failing so to do. The facts set forth in that branch of the stipulation were no doubt material, but whether the burden was on the appellee to establish them, or on, the appellant to prove the contrary, we need not inquire.

Certain stockholders of the Petroleum Export Corporation were made parties respondent, and a decree was awarded against three of them in “the sum of sixty-five hundred dollars and in the amounts respectively reported due from each and all of them, together with costs to be taxed.” This part of the decree is, we think, void for uncertainty, and inasmuch as the liability of all three stockholders is only $3.12, the amount involved is entirely too trifling to- merit consideration from this court.

The decree will therefore he modified by striking therefrom all reference to the three stockholders, and as thus modified the decree is affirmed, with costs.