BROWN ,. CERTA.IN TONS OF COAL.
i913
ties to a charter. The arrival was reported to the charterers on Febru' ary 5th. The charterers, on the 7th, directed the bark to a. wharf, which she reached on the same day; but other vessels in the slip prevented her beginning to discharge until Monday, the 14th. She was then discharged, and the discharge was completed about noon of the 17th. No reasor: is given for sending the vessel to a wharf where she was detained so long before she could commence discharging. Twenty-four hours after that, in addition to the two days after notice of arrival, were certainly a reasonable and sufficient time, in the absence of further proof, to find a dock and berth where the ship might commence her discharge. It does not appear that the discharge in four days after she began was through any unusual exertions. Four days' time must therefore be taken as a reasonable .time for the actual discharge of this cargo. This leaves fiv& days for which the vessel is entitled to demurrage. Thert' must be a decree, therefore, in favor of 1.he libelant in the first-named cause for the freight and for demurrage for five days, with interest and costs; and decree in favor of the libelants in the second cause for the expense of storage of the cargo at Oran, with insurance, for three weeks, and for :any fall in the market price during three weeks before its arrival, with interest and.. costs; the latter decree to be offset against. the former, the stipUlatt>rson either side to be held only for the difference.
BROWN ,. CERTAIN TONS OF CoAL.
(Dl8trict pO'llh'i,
w: D. Michigan, N. D.
.May 4,1888.)
1
SHIPPINo-CARRIAGE OF GoonS-DEMURRAGE.
Libelant, the owner of three barges, one of them propelled by Iteam, en· tered into an agreement for the transportation of certain coal at a fixed price per ton. the coal to be delivered at the port of discharge on board, and to be there unloaded within three days after its arrival. There was no charter· party or contract of hiring in whole or in part, and the entire negotiations were in Parol. Bills of lading were afterwards made out in the usual form, and transmitted in the ordinary course of business. Upon arrival at port of dis· charge, the facilities provided by consignees for unloading were so poor that only one barge could unload at a time, and about 11 days, including ODe Sun· day, were taken up in the discharge. Held, that the parol agreement for a discharge in three days was superseded by the bill of and that the con· signees were entitled to a reasonable time; that six days. Including Sunday, was such reasonable time; and that demurrage should be allowed for the reo maining five days.
I. ADMIRALTY-JURISDICTION. A libel by the owner of three vessels constituting "one ship" against the cargo for demurrage arising from unreasonable detention by the consignee at the port. of discharge is withiD. the admiralty jurisdiction of the district court. .. 8A:MB-PRACTICB.
Where the owner of the ship libeling the cargo for demurra/l;e had knowl· edge of what had been done by the master, and had proceeded in reco/l;nitioD of it. it is too late for him to object to the authority of the master to execute the bill of lading under which the cargo was carried, on the ground that the bill was made in the home port.
v.a4F.no.11-58
914:
FEDERAL REPORTER.
In Adtnirtdty. George D.VanDyke, for libelant. BaU & Ha1J,800m, for claimant. . (orally.) In the Qase of Bro'l.lJ'l\ v. Oertai'l'l.T0n8 of(Joal, Wallace being the claimant, the proceeding was in admiralty, and the facts in outline were that the libelant, being the owner ofcertain vessels, three in Dumber, entered into an agreement for the transportation of certain coal, ·'from Buffalo to Menominee, at a certain price per ton. The coal was to be'delivered at the port' of discharge on board; that is to say, the expenBes of the discharge were to' be borne by the consignees.. Some preliminary negotiations were had between the libelant and. the other parties to the transaction inregaTd to the transportation of this coal and certain incidentals of the terms 'O'Dwhich it should be done. Afterwards the coal was and bills of lading were made out in the usual form, were transmitted in the ordinary course of business. The vessels proeeedeil to Menominee, and, on arriving there, the consignees had not provided the facilities for unloading.:Which it is claimed should have been proVided, and hI consequen<ie only one of the vessels could be unloaded at a time, and 'the vessels had to take their turn at the dock at a single place of discharge, one after·· the: other; and, of course, the would be such as would be necessary from unloading in that way. All of the vessels constituted substantially onefieet; they were not only one fleet, but were, within the meaning of the term in the admiralty juri8.prudence, one ship; that is to say, one of them was steam-barge, carrying a portion of thecoal,andthe others were twO barges that were in tow of the ·. The, not bei'ng unloaded within the time when it was clahned they should .have been unloaded by the owner of the vessels, a claim for demurrage }:V!'JBput in, the detentioJ:;l. Qf the vessels beyond the tima ,when they should have been discharged, and coal ·for thepllrpose of enforcing his fOf' ., ,. '. i'. ' .It is claimed in thefirst':place, on the part of the .claimant,-at least it 'was so orig1l,lally, case was not one of admiralty j urisdiction; that. the remedy could not' l>e in ,this way, assuDling the facts to be 'as alleged in the liblll; but I have no doubt whatever that it is the admiralty Nrisdiction, and the court has authority to a':Vard'stlch remedy as the nature of the c/lSe,requires. The principal controversy between the parties arose out of the question whetMr there was a preliminary contract which was in the nature of achaJ:tel'o';party. and which was. therefore independ,ently attestil)g the and conditions of the agreement for transportation, or whether What 6:anspiredis'to be regarded as mere preliminary negotiation resting in parol, and which,}Vas merged)ugr superseded,},ythebill ·oflading. which of course was> in writing', and 'is, cf!\iiried by, :t';Wcl.aip,ia:titoperated to supersede the original or "preUminarY.Ji,legotiation:betwe,en,tpe parties. Now, I have no doubt in this case that what transpired between the libelant and the other parties
BROWN. V.
OF COAt..
915
to the .by way of parol, was sufficient to have constituted an agreement; that it was within the understanding of the parties, and therefore one of the terms of the agreement, that this coal shoulq be unladen in three days from the arrival of the vessels j and that the consignees should take measures to have the coal unloaded within that time. But no charter-party was made, and I think it must have been intended that the terms and conditions of the contract should be embodied in the bill of lading. It is claimed by the libelant that, where there is a charter-party, Of an agreement equivalent to it, that that is the substance to be looked to as the agreement between the parties, and that thehill of lading is a merely formal document, issued by the master, and is not intended to cover the ground of the charter-party. Now, in this case, if there had been a charter-party between the parties to the transaction, I should have no doubt that the contention on the part of the libelant was correct, and that the charter-party must be looked to as indicating the agreement between the but where, as here, there was nothing rising to dignity of, a charter-party, nothing partaking of its substance, form, and effect, but the agreement, such as it was, between the parties, standing in parol, I think that the billQf lading, which was ultimately made, must be regarded as superseding the preliminary arl'llngements of the parties, and that a different nile would be applicablehl'lre from that which would apply if the parties had entered into a charter-party, or other definite agreement il1tended f/.8. the equivalent thereof. And it is to be noted in this case, and. a matter of considerable im,portance in determining this point, that the transaction between these parties did not have in contemplation the hiring or employment of vessels, or of any definite capacity of vessels; the parties not 80 much to that as to the simple apd only matter that they had in contemplation, which was the transportation of a certain quantity of coal from one place to another at an agreed price per ton. A question was raised by the libelant as to the authority of the master to execute this bill of lading in the home port,-the port of the owner. There might be .a doubt of that if it had stood without any ratification .on the part of the libelant; but that bill of lading appears to have beep. acted upon by the libelar.tj certainly there is no evidence in the case that he ever repudiated it. It is clear that he must ha,ve kn()wn of the of the bill of lading by the master; and therefore the court holds, upon familiar principles of law, that it is too late now to claim that themaswr . had no authority to sign the bill of lading, whether or not he would have such authority if immediate question had been made upon it. fore I hold. against the libelant upon the proposition that the bill of lading does not supersede what had previously transpired between the parties, The bill of lading must be regarded as attesting the contract betwecnthe parties, and it is be interpreted to its terms, including also what is reasonably implied in itj .for it isa maxim <lithe law is fairly implied in a contrllct iil ail muchapart Of it f!.S though it were expressly'written. It. was therefore a ,part of .tQiilcontract that ,this un' It heingHle duty of loading should be done within a
916 the consignee to unload this freight, it was his duty to prbvide the faeiIitieR for doing so. He was bound to promptitude and diligence. The measure of that diligence is to be estimated by the urgency of the case, by the circumstances surrounding the parties, by the loss and damage which would accrue to the owner of valuable vessels by detention during the earning season of the year; and the circumstances in this case l'equired that the consignee should exercise promptitude and a hig Jegree of diligence in unloading these vessels. I think it was fairly wihdn the expectation of the parties, and fairly within the obligations of the consignee, to provide means of unloading two of these vessels, at least, at a time. All that transpired between the parties seems to have indicated that that was the reasonable expectation which they had. Instead of that, only one of the vessels could be unloaded at a time by the means furnished by the consignee. The dock was incumbered with a quantity of material, of lumber, which lay between the coal-bins and the front Of the dockjfthd I am satisfied from the evidence that the consignee did not procure the necessary help. He refulled to 'pay-whetherjustly or unjustly, I do not know-the price that was charged by the laborers that vicinity for unloadingavesael; he higgled over a little difference of 10 cents an hour to those employes, and permitted: the vessels to lie there until he could coerce the employes to accept 40 cents instead of 50 cents an hour,thereby attempting to save to himself a mere pittance, while subjecting the other parties to serious loss and damage. It is therefore held that, in this case, as a matter of fact, the consignee did not USe reasonable diligence. As I have stated, it was fairly to be expected that the vessels should have been unloading at least two of them at the same time. This would have required the detention of the third in the mean time, and the detention of the two while the third was unloading. Upon the evidence, in my opinion, five days was sufficient for unloading, with reasonable diligence on the part ofthe consignee. Inasmuch, however, as the court holds that there was no contract for three days, in which case Sunday would have been included, tho intervening Sunday must, upon the facts found, and the law as held, be also allowl:ld, which would make six days from the time otthe arrival of the vessels until the expiration of a reasonable time for unloading. This would leave five days for which demurrage would be allowed. The damage from demurrage per day appears to be as claimed Ly the libelant, and it is not unreasonable, I think, in view of the evidence in the c8.se,-$211.58. That sum is allowed. The ant is entitled to a decree for five days at $211.58 per day, amounting to $1,057.90, and interest at 6 per cent. from the date of the filing of the libel, and costs, except, of course,such as were paid on the opening of the default. It may be that the libel should be amended in some particulars. . The proctor fortlie libelant may exercise 'his discretion about that. Leave will be given to amend the libel, if counsel be so advised, so as to clairri demurrage for detention beyond a reasonable time, instead of founding the claim for demurrage upon the agreement to discharge in three days.
in
LEVECK
V.
A CARGO OF WOODEN POSTS.
917
All that remains will be simply the computation of the interest upon the sum stated, which maybe done by the clerk when the decree is entered.
LEVECK v. A CARGO OF WOODEN POSTS. 1 (DiBtrict CO'Urt, E. D. New York. April 14, 1888.) DEMURRAGE-BURDEN OF PROOF.
On the evidence, held, that the delay claimed by the vessel against the cargoowner Lad not been made out, and the libel should be dismissed.
In Admiralty. The canal-boat Martha E. Loomis brought a cargo of posts from East Haddam, Conn., to New York, and the libel claimed that the vessel was delayed after urrival iIi New York by the fault of the consignees. It also claimed damage to the boat from floating ice through the fault of the shipper, which latter claim the answer averred had been settled. The claimant asserted that the boat had been sent at once to a proper dock,and that the delay arose from the slowness and absences of the master, and from the fact that he negligently discharged a part of the <Jargo at the wrong place. Peter S. Carter, for libelant. Oharles Murray, for claimant. BENEDICT, J. The settlement made between Goodrich and the master of the vessel left no claim enforceable except the claim for delay in the unloading of the vessel, which occurred after that settlement. In regard to the claim of a lien upon the cargo for the delay which occurred in unloading the posts, both at Schuyler's dock and at Wallabout, the evidence fails to prove that the delay was caused by fault on the part of the {)wner of the posts, or of the persons to whom the posts had been sold. The burden is upon the libelant to prove a fault causing the delay. 'This has not been done. Libel dismissed. lRepoJ;1i8d by Edward G. Benedict, Esq., of the New York bar.