224 F. 806 | S.D.N.Y. | 1915
“It is agreed that the lay days for loading and discharging shall be as follows: At an average rate of not less than forty thousand superficial feet of lumber or equivalent of laths, per weather working day.”
The first point is whether the time taken in loading and discharging shall all be brought into hotchpot, or whether each period must be reckoned separately. The authorities are not very helpful. Judge Brown’s decision in The Ocean Prince (D. C.) 50 Eed. 115, does not raise the question at all, because the ship earned dispatch money on both loading and discharging; it was not, therefore, necessary to bring both periods into hotchpot. In Marshall v. Bolckow, Vaughan & Co., L. R. 6 Q. B. D. 231, the rate was different for loading and for discharging, unless “loaded at other than Portugalette or Lucana shipping staithes,” when it was to be the same. The loading did not take place at either of the ports mentioned, and was therefore in fact subject to the same rate as discharge. The ship claimed the right to separate the periods, as here, and the court decided with the ship; but it is not clear that the decision would have been the same, had the main body of the charter party not distinguished between the rates.
Avon S. S. Co. v. Leask, 18 Session Cases (4th Series) 280, is a stronger case for the libelant. There the charter read:
“Cargo to be loaded and discharged as fast as steamer can receive and deliver during usual working hours.”
The court by a vote of three to one decided that each period must be reckoned separately, because otherwise the ship’s lien for demur-rage could not exist, and because customarily the intent to merge the whole period into one appears if intended. The first consideration applies to the case at bar, the clause of the charter party at bar being:
“Vessel to have an absolute lien on cargo for freight, dead freight, and demurrage.”
If the charter brings the whole period into hotchpot, no lien arises for demurrage in loading, until it appears during the period of discharging that with the utmost expedition the average rate for both periods would be less than the charter requires. Even then the lien could not be measured until all had been delivered and the lien lost. Such an interpretation would make the provision for a lien wholly im
The cesser clause has no application. Crossman v. Burrill, 179 U. S. 100, 21 Sup. Ct. 38, 45 L. Ed. 106. The bill of lading, signed by the master, did not incorporate the charter party," and gave no lien upon the cargo and no obligation against the consignee for demurrage. Dayton v. Parke, 142 N. Y. 391, 37 N. E. 642. In such case, if the cesser clause relieved the charterer, there would be no obligation for
In the case at bar there is absolutely nothing to lead one to suppose that the sum was not put in in good faith. The charterers called no one to show how it was arrived at, or to show that it was not what it purports to be. They rest upon the earnings of this voyage, and even those are not conclusive, since we do not know whether the parties contemplated a larger cargo, or how long they thought it would take to load and discharge. The lay days are the outside limit, after which the charterer must pay; they are not necessarily the expected period. The voyage from Bathurst to New York took 20 days; the loading at Bathurst 10 days; the voyage to Bathurst probably a week more. This period, at $76, would, it is true, amount to all the freight earned upon the voyage, with no allowance for the time of discharge at New York. However, we cannot tell whether voyages west were as prof-
A decree will pass for demurrage from July 29th, with the possible exception of delays due to the ship’s default as noted. It will hardly be necessary to have a reference.