| S.D.N.Y. | Mar 22, 1885
The claimants, by their charter-party, had a right to direct the ship to her place of discharge. They first directed her to a dock at Jersey City. The captain objected to going there, reporting to the claimants that on inquiry he had been told that there was not sufficient water at the dock assigned. The evidence as to the actual depth of water there is, however, inconclusive and unsatisfactory. Had the unloading taken place at the dock at Jersey City, the discharge would have been made into cars rapidly and without interruption. The ship was at that time j ust outside of the Atlantic docks, Brooklyn. Upon this objection of the captain, the claimants told him that he might go into Atlantic docks, and that they would discharge on lighters there. The captain, accordingly, moved inside the docks, but did not get a berth along-side any wharf; and the claimants had lighters in readiness, before the ship was prepared with proper appliances, or “ready to discharge.” There was some ice inside the Atlantic docks when the ship moved in; but no objection was made to this dock on that account, nor does the libel claim that the assignment to these docks was, under the circumstances, improper. The continued and increasing cold caused such an accumulation and freezing up of the loose ice within the docks that the necessary changes in the position of the lighters in order to receive the ore could not be made without numerous delays. The actual discharge commenced'on the twenty-seventh of January, and was not completed until the eleventh of February, occupying 14 working days. The stipulated rate of 70 tons per day would have occupied but 8 days. I am satisfied from the evidence that the entire detention was caused through ice from increasing and continued cold weather, after the ship had taken up her position within the docks, and after the lighters were along-side. There was no delay in bringing the lighters along-side from first to last.
The customary mode of discharging iron ore in New York is either upon the dock or upon lighters. When discharged in lighters, the usual practice is to move the lighter along from time to time beneath the place where the ore is dumped. The difficulty here was that the lighters were so wedged in by the ice that great delays were caused, first, in the shifting of the lighters, in order to trim the cargo properly, and, afterwards, in trying to trim the cargo without shifting. The libelants claim that the cargo might have been trimmed faster by employing men with wheelbarrows to trim the cargo by wheeling it fore and aft, instead of moving the lighter. But that was, at best, a slow mode of loading; and it was very speedily adopted when the lighters became frozen in, and it was applied with reasonable diligence. That was not, however, the customary mode of unloading into lighters; and the “customary” mode of unloading was all that this charter-party required. In Tapscott v. Balfour (L. R. 8 C. P. 46, 53) it was held that these words refer specially to the mode rather than to the time of unlading; while in Postlethwaite v. Freeland (5 App. Cas. 599) the words
If, in the present case, the detention by ice in handling the lighters during the process of unloading was a detention by “frost” “hindering the discharge,” within the meaning of these words in the charter-party, then the detention in this case is within the exception of the charter, and the defendants are not liable unless the detention could have been avoided by ordinary and reasonable diligence. The evidence satisfies me that from the first all the usual men were employed, and ordinary diligence -was used, for trimming the cargo and for changing the lighters; and that, when it became apparent that more men were needed to trim the cargo, ordinary diligence was used in getting additional men with wheelbarrows for that purpose. Extraordinary diligence and efforts to this end certainly are not obligatory on a charterer in order to avoid the consequences of the very cause that is contemplated and provided for in the exception. The requirement to discharge 70 tons per day -was subject to this exception of “frost.”
I see no reason to doubt that the obstruction in moving the lighter caused by ice, as the result of “frost,” is within the meaning of this exception of the charter-party. Frost here means freezing; and it includes any freezing that would hinder or obstruct the loading or unloading of the ship. This is the most natural, if not the only, moaning that the word “frost” could have in this connection. In the cases of Kay v. Field, 8 Q. B. Div. 594, and 10 Q. B. Div. 241, and Coverdale v. Grant, 8 Q. B. Div. 600, and 9 App. Cas. 470, both of which were elaborately considered, no question was made that an impediment through ice was within the meaning of the exception of “frost” in the charter-party. But it was held that it did not apply to impediments by ice in transporting the goods from some other place to the place of loading; but only to such impediments existing at the very place of loading or unloading. Such is precisely this case. Hudson v. Ede, L. R. 2 Q. B. 566 and L. R. 3 Q. B. 412; The Norman, 16 Fed. Rep. 879.
The charter-party in this case provided that the time was to be counted only from 6 o’clock of the morning next after the vessel “is reported and all ready to load or discharge, of which the captain is to give notice to the consignees.” This manifestly means a present readiness to commence the actual discharge. No time can be counted, therefore, as lay days, except from the time of the ship’s actual readiness to begin the discharge, either upon the wharf or upon lighters. Carsanego v. Wheeler, 16 Fed. Rep. 248; Teilman v. Plock, 17 Fed. Rep. 268, and 21 Fed. Rep. 349; Murphy v. Coffin, 12 Q. B. Div. 87. The ship accepted the proposed discharge upon lighters as the mode of discharge in this case. She never got a berth along-side a wharf where she was ready to discharge in any different manner. Tho exceptions of the charter-party must, therefore, be applied to the
No evidence b$ing offered to excuse the two days’ delay at Carthagena, and the lost time not being made up through any more rapid discharge here, so as to fall within the average clause of the charter, the libelants are entitled to a decree for two days’ demurrage, and to that only, amounting to £16, with interest and costs.