Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co.

Nos. 43 and 44 | D. Minnesota | Oct 21, 1895

NELSON, District Judge

(after stating the tacts). When the bill of lading mentions nothing about demurrage, the acceptance of the cargo is evidence of an agreement by the consignees to pay demur-rage, as well as the freight; and when it specifies no particular time to be allowed the consignee for discharging the cargo, and no lay days are mentioned, the unloading must be done with reasonable diligence on the arrival of the vessel, according to the custom of the port, or damages can be recovered for detention of the vessel against the consignee. Liability for demurrage does not; exist in the absence of an express contract, unless such demurrage is caused by the negligence or fault of the consignee. The consignee is entitled to a reasonable time to unload, taking into consideration the custom of the port and all surrounding circumstances; and what is a reasonable time depends on such surrounding facts and circumstances. Any improper detention of the vessel is demurrage, and liability for the same is only a reward to the vessel in compensation for the earnings she is improperly caused to lose. Where the consignee, as in this case, is the freighter and owner of the cargo, there can be no doubt of his liability for unnecessary detention of the vessel in unloading. Sprague v. West, Abb. Adm. 518, Fed. Cas. No. 13,255; Holt, Shipp. pt. 8, c. 1, § 25.

Certain facts stand out and cannot be disputed. The consignee, on the arrival of the vessel at the dock, proceeded to unload her cargo with all reasonable dispatch, when, without warning and without fault of the consignee, the men in a body, on the (ith of July, refused to work. An ultimatum was then presented by the strikers to the effect that unless 50 instead of 40 cents per hour was paid, and unless an agreement to pay that rate for a year was enterad into by all the dock owners in the two ports, they would not resume work. Not only did they not work, but by threats and intimidation they stopped those who were willing to do so. It was not a mere question of paying 50 cents an hour for unloading this boat, for this demand was coupled with another that these rates should be kept up for a year, and that every dock owner in Superior and Duluth should become a party to the contract before any boat would be unloaded. On these demands being refused, threats, intimidation, and coercion were resorted to by the strikers, in face of the fact that plenty of men were willing and anxious to work at the old rate. Under these circumstances, it cannot be said that the claimant was bound to accede to the unjust and unreasonable demands of *270the strikers, and bind itself to pay for a whole year wages largely in excess of the going rates. There is no doubt but that sufficient men could have been .procured to unload the boat but for these threats and intimidations. I think that the defendant used reasonable and proper diligence to unload the boat, under all the circumstances of the case, and that the libelant cannot recover for the detention that occurred.

The case of Brown v. Certain Tons of Coal, 34 F. 913" court="W.D. Mich." date_filed="1888-05-04" href="https://app.midpage.ai/document/brown-v-certain-tons-of-coal-8126628?utm_source=webapp" opinion_id="8126628">34 Fed. 913, strenuously relied upon, is perhaps the strongest case cited by libelants. In that case the company was paying 40 cents, and the men demanded 50 cents, an hour, and would have gone to work had they been paid the latter amount. The court said:

“He [the consignee] higgled oyer a little difference of ten cents an hour to these employes, and permitted the vessel to lie there until he could coerce the employés to accept forty instead of fifty cents, thereby attempting to save himself a mere pittance, while subjecting others to serious loss and damages.”

Here the evidence shows a very different state of affairs, which it is not necessary to recapitulate.

A decree must be entered for the defendant, with costs.

The facts in the case of the steamer Gratwick No. 2 being the same as in this case, a decree for defendant, with costs, will also be entered therein.