142 N.Y. 279 | NY | 1894
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *281 We should affirm this judgment upon the opinion of the General Term, but for a criticism upon it which seems to require an answer. The whole present contention of the appellant turns upon the distinction asserted, that delivery by the shipper did not include the loading and stowing upon the vessel. Since there was no delay in bringing the timber alongside, but only in loading and stowing it, it is argued that there *284 was no basis for the demurrage which the charter party contemplated; that if demurrage became due it flowed from a neglect of duty which was outside of the contract, creating a cause of action in tort not pleaded, and to which the contract measure of damages did not apply. The learned counsel for the appellant insists that this view of the case was not met by the General Term, and that its decision was manifestly erroneous.
The effectual answer to this contention lies in a correct construction of the charter party, and a denial of the distinction attempted to be drawn. That instrument should have a reasonable rather than a technical construction, and its general purport should prevail over the narrowness of a single word. The vessel was to be loaded afloat. The charterer was to bring the timber alongside, and load and stow it upon the vessel. The latter was simply to furnish steam if required to operate the steam winches, but the charterer was to do the stowing of the cargo, which it is conceded includes the loading, and to supply the dogs and chains necessary for handling it. There is a further provision that the cargo is "to be delivered alongside at merchant's risk and expense, and to be received by the master and secured with the ship's dogs and chains when so delivered and to be then at ship's risk." This clause was needless if a mere delivery alongside was a complete delivery to the vessel, for after such complete delivery the liability of the ship would of course attach. The need of the provision lay in the fact that delivery alongside was not a complete delivery, because the merchant was still to remain in possession and control of his lumber for the purpose of loading and stowing it, and before that was accomplished the ship would assume no risk unless by force of a particular and specific provision, which, therefore, was added, and which put upon the vessel simply the duty of holding the timber safely alongside to enable the shipper to complete his delivery by loading and stowing. And so when the parties agreed in the terms of their contract that if the cargo should "not be delivered to vessel at Pensacola" within the specified time demurrage *285 at a specified rate should be allowed, the delivery referred to is the complete and final delivery, not merely "alongside," but to the vessel, which did not occur until the lumber was loaded and stowed and so passed out of the custody and control of the merchant and into that of the ship. Wherever a delivery "alongside" alone is meant that qualifying word is used, and its omission when "delivery to the vessel at Pensacola" is prescribed in the clause relating to demurrage indicates that a complete delivery to the ship, ending the duty and control of the charterer, was what was meant.
This construction is supported by a reference to the situation and relations of the parties. The vessel might be delayed not merely by the delay of the merchant in bringing the lumber alongside, but also by his delay in his further contract duty of loading and stowing it. The purpose of demurrage was to compensate the ship for loss of time occasioned by the fault of the merchant, and it is not reasonable to suppose that delay in one respect only was the thought and purpose of the parties when delay in the other would accomplish the same injurious result. This construction of the contract, which was undoubtedly the understanding of the parties at the time of its execution, furnishes a sufficient answer to the principal contention of the appellant.
His exception to the refusal to charge that the three Sundays intervening between the 17th of April and the 7th of May should be deducted was not well taken. The request was too broad. The 17th of April was the end of the lay days and the 7th of May was the date of sailing. Sundays are not to be deducted after the demurrage begins to run. (Lindsay v. Cusimano, 12 Fed. Rep. 503; The Oluf, 19 id. 459.)
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *286