Davis v. Pendergast

| U.S. Circuit Court for the District of Southern New York | Aug 5, 1879

WAITE, Circuit Justice.

The lay days allowed by this charter are forty-five running days, that is to say, forty-five days as they run, day by day, from the time the vessel was ready and in a condition to load or unload, and notice thereof to the respondents or their agents. The term “running days” was evidently employed to exclude the idea of working days only. This throws upon the respondents all the risks of detention by intervening Sundays and holidays, as well as by the ordinary interruptions incident to the business, such as custom house and port regulations in reference to the manner of taking in or discharging cargo, lack of wharf-age or lighterage facilities, not due to any fault of the vessel, and the like. The respondents, in effect, agreed that no more than forty-five runnings days should be occupied in loading and discharging the cargo, unless it was occasioned by some fault of the vessel, or some unusual, and extraordinary interruption that could.not have been anticipated when the contract was made. Detention by reason of any of the risks assumed by the respondents placed them in “default,” within the meaning of that term as used in the charter, and rendered them liable for the stipulated demurrage.

It is conceded, that thirty-two days were occupied in putting the cargo on board. No complaint is made by the respondents on this account The testimony shows, that the vessel was ready and in a condition to commence unloading on the 24th of December, and the agents of the respondents were duly notified pn that day. She was then at anchor on the anchorage ground set apart by the port regulations for vessels lying in the harbor for a discharge of cargo. It is also shown, that, by the customs regulations, the assorted cargo could only be unloaded into the custom house from the vessel alongside, or by lighters. If discharged from the vessel into the custom house, it would be necessary for the vessel to wait her turn to come alongside. In this case, lighters were employed and paid by the vessel, as it was supposed in this way time might be saved, other vessels being ahead at the custom house. No specific charges of neglect are made against the vessel. The respondents required that their agents at Bio de Janeiro should be her consignees. This was, undoubtedly, to avoid ■disputes as to her diligence in discharging, and also to accommodate the respondents in receiving cargo. If, by reason of their agency for the respondents, the consignees failed in their duty to the vessel, it is not right that the respondents should be charged with the loss. It was the duty of the consignees to employ lighters for the vessel, when required. In this case, the consignees were repeatedly asked by the master to send lighters along more rapidly, and I cannot but think that the delay was caused by a scarcity of lighters, or an inability to unload them at the custom house, or, by what is, perhaps, even more likely, a desire on the part of the consignees to accommodate themselves, as the agents of the respondents, in making their deliveries to purchasers under sales effected after the vessel arrived in port Certainly, I can see no fault on the part of the vessel. She was ready to unload, within the meaning of the charter, when she was at a place in the harbor where she could be unloaded, and had done all that was required of her in furnishing the facilities for unloading. In point of fact, she was prevented from going alongside of the custom house for want of room; the agents of the respondents preferred to have the lumber put out on lighters, so as to facilitate their own deliveries, and the coal, although finally put out on a wharf, was kept back .by the same agents, to enable them to comply with their own contracts of sale.

Without pursuing the subject further, it is sufficient to say, that, after a careful consideration of all the evidence, I am clearly of the opinion that the detention beyond the stipulated lay days was caused solely by the default of the respondents, within the meaning of the charter, and that, as a consequence, they are liable for the stipulated de-murrage, and interest from January 19th, 1SG7. The charter money and demurrage were payable in Bio de Janeiro. As no attempt has been made to show the legal rate -of interest at that place, it may be calculated •at the rate of six per cent, per annum.

A decree may be prepared in favor of the libellants, for the legal value, in dollars, of .£117, and the accrued interest.