229 F. 708 | 2d Cir. | 1916
This is a libel by the owners of the schooner Grace Seymour against the Hilton-Dodge Lumber Company, the charterer, to recover demurrage for 10% days at $49 a day. The charterer, which had sold the cargo to the Yellow Pine Company f. o. b. its wharf, brought it in under the fifty-ninth rule in admiralty (29 Sup. Ct. xlvi).
The charter party provided that the cargo should be discharged as per rules of the Maritime Exchange, rule V of which fixes the lay days for discharging-such a cargo as this at the rate of 35,000 feet per day; Sundays and legal holidays excepted. The total cargo divided by this amount gave the charterers 13% lay days. The charter party also provided that for every day’s detention thereafter by the default of the charterer or agent it was to pay $49.
The common expression that so many days are allowed for loading and discharging a vessel is misleading. There is no obligation on the vessel to load or discharge within any fixed time. The duty is that of the charterers to furnish and to receive the cargo, if the vessel be able to load and discharge it within a fixed period, viz., the lay days. For any delay caused by the vessel the lay days would be pro tanto extended, and any delays due to the charterer would of course be included in the lay days.
Detention. Detention.
December 2 No men f. 513 1
No room f. 170
3 Rigging ¼
4
5
6 ½
7 1
9 1
10 ½
11
12
13 1
14 1
16 Rigging ½
17
18 Rain ¾
19
20 Demurrage begins
The charterer contends that the delays mentioned in the first column were due to the refusal of the master to shift his vessel astern, so as to bring her after hatch opposite the clear space on the wharf, and its refusal to open the bow ports. It is enough to say that the District Judge found on both these points in favor of the-vessel, and we adopt his findings of fact; therefore this detention must be included in the lay days. '
Rule V of the Maritime Exchange provides:
“If vessel isi ready to discharge cargo in questionable weather consignee must receive the same.”
The charterer was not at fault for the delay of three-quarters of a day on the 18th, no cargo being discharged because of rain. The failure to discharge on the 2d was said by the master to have been due to lack of room on the wharf, but by the president of the stevedoring company to lack of stevedores. The detention because of the rigging was of course part of the stevedore’s duty.
“Stevedore at port of discharge to be subject to approval of charterers.”
In the absence of an agreement to the contrary, it is the duty of the vessel to load and discharge the cargo, and clauses regulating the subject are frequently introduced into charter parties. The normal duty of the vessel should not be transferred to the charterer, unless the intention of the parties to do so is clear. Under the language of this charter we have no doubt that the stevedore was the agent of the owners who appointed and paid it. The charterer named the Franklin
The court below relied on the case of IrzQ v. Perkins (D. C.) 10 Fed. 779, but it in no way qualified the vessel’s duty to discharge the cargo, and only imputed delay to the charterers for their failure to carry out the special agreement as to the manner in which the cargo should be discharged. The court below is directed to award the libelants demurrage at the rate of $49 per day for 8 days, beginning December 20th, with interest de die in diem, with costs of the District Court to be paid primarily by the Yellow Pine Company, and secondarily by the Hilton-Dodge Company; the libelants to pay costs of this court to the Yellow Pine Company. The decree, so modified, is affirmed.