Dick Chiarello & Bros. v. Central R. Co. of New Jersey

256 F. 297 | 2d Cir. | 1919

HOUGH, Circuit Judge

(after stating the facts as above). The avowed object of this litigation is not so much to effect a money recovery for this particular libelant as to obtain a decision laying down some general rule covering “lighter delivery” in this harbor, and securing to lighter owners generally compensation when their vessels are not relieved of cargo as rapidly as the various rules of the Maritime and. (probably) Produce Exchanges appear to contemplate.

The attempt must fail, if for no other reason than that there is and always must be immense diversity in the contractual arrangements of many men, one small result of which is “lighter delivery” of goods. As said in Rutherglen Co. v. Houlder, 203 Fed. at 851, 122 C. C. A. 169, there “is a wilderness of law on the subject of demurrage. Decisions depend upon the language of the various charters.” This was one way of saying that identity is rare in any two contraéis, or sets of phenomena, and some controlling or crucial fact must furnish a guide through a “wilderness,” not only of law, but of always varying commercial transactions. In this instance the guides are these truths:

[1] (1) No one concerned with the carriage of these ties could have any claim for what the law calls demurrage, because there was no agreement therefor. Ben Franklin, etc., Co. v. Federal, etc., Co., 242 Fed. 45, 154 C. C. A. 635. The delivering carrier could never do more than demand damages for delay “in the nature of demurrage”; and in order to recover he must sustain the burden of affirmatively proving that the person sought to be charged (e. g., consignee or charterer) was guilty of “some negligence in unloading, * * * or * * * exceeded some customary period which, by implication, is a part” of whatever contract was made. Riley v. Cargo of Iron Pipes (D. C.) 40 Fed. 605.

(2) The only contracts in evidence affecting these respondents are the hills of lading, by which the steamships undertook to deliver ties at the creosoting wharf. It was nothing to respondents that the steamer employed Chiarello to complete .their contracts. Assuming that lighter delivery was proper, it was in legal effect the steamship owners’ delivery, and this libelant was their servant; respondents never had any contractual relation express or implied wilh the lighterman libelant.

(3) The rules of the exchanges do not affect those not members of the corporation making the rule, proprio vigore. Such power as they are usually said to have rests on a good general custom of observing them, and is more accurately described as a custom, expressed or defined by the rule. Dike every other custom, it must usually be proved anew whenever asserted, and must always be shown to fit the facts. No court can construe a custom, as it does a general statute. Customs have legal efficacy, and often very great influence; but no one can define a custom, and then ask the courts to treat the definition like a written law.

[2] Considering the evidence in the light of the foregoing propositions, we find—

(1) That it was a usual and reasonably to be expected thing, that the steamship owners would deliver by lighters.

(2) That, had the steadier gone alongside the wharf herself, she would by custom have been entitled to (say) a delivery of 50,000 feet per day.

(3) There is no evidence whatever of any custom whereby (e. g.) a steamer having a million feet of ties on board could, after signing such bills of lading as are here in proof, put said ties on 20 lighters, send all 20 at once to one wharf, and require the consignee to unload all the lighters in one day. Nor do we apprehend that such custom is ever likely to be provable in any port; yet such in effect is the inference libelant asks us to draw from a proven custom of unloading a “vessel” -at the rate of not less than 50,000 feet per day.

(4) If we could construe a definition of custom, in this instance the exchange rule, like a statute, we should hold that “vessel” meant the vessel that contracted to carry and deliver the ties, viz., the steamship, and that therefore what was customary delivery for the steamship was proper for the lighters that represented the steamship.

But we do not ground decision on such construction, but on the broader ground that neither by contract in evidence, nor custom proved; were the respondents bound to more than they did do. .

(5) In the absence of controlling contract or custom, the duty of these consignees was simply to take cargo in a reasonable time. Milburn v. Federal, etc., Co., 161 Fed. 718, 88 C. C. A. 577.

“It generally happens that there is some particular fact which distinguishes every demurrage suit from every other, so that the court * * * is compelled to go back to the underlying rules.” Donnell v. Amoskeag, etc., Co., 118 Fed. at 15, 55 C. C. A. at 183.

The particular fact here prominent is that the steamships attempted to multiply the duties of the consignees by simultaneous presentation of numerous lighters. They could not thus depart from their bills of lading, which would control, even over a local custom. That libelant did not secure himself by contract with his employer, against the consequences of delay at the other end of the route, is his misfortune. Ben Franklin, etc., Co. v. Federal, etc., Co., supra.

(6) Whether if any custom (applicable to the facts) to pay damages in the nature of demurrage, had been shown, libelant would not' still be required to prove actual damages, we do .not decide.

Whether a customary rate of “demurrage” of $20 per day is a custom enabling one to liquidate “damages in the nature of demurrage,” without proof of actual loss, is a question not necessary to decision.

Decree affirmed, with costs.