21 F. 681 | E.D. Wis. | 1884
On the seventeenth day of August, 1882, R. R. Hefford, as agent for Pratt, Parker & Co., shipped on board the following
Two English cases (Phillips v. Rodie, 15 East, 547, and Birley v.
It would, perhaps, be enough to say of those cases that as tfiey were suits at common law, requiring judgments upon the common-law
“When the common law of England was modified by the introduction of many rules from the law-merchant, the former law had no process for enforcing this reciprocal privilege of the ship and the goods, [that is, the privilege which has its origin in the rule that the ship is bound to the merchandise and the merchandise to the ship,] and had succeeded in repressing the only court that had the requisite modes of action, and was therefore obliged to say that it could not recognize the maxim even when embodied in express contract, as it usually is in English charter-parties. Birley v. Gladstone, 3 Maule & S. 205; Gladstone v. Birley, 2 Mer. 401. Erom the time of those decisions to that of Gray v. Carr, L. R. 6 Q. B. 522, the history of this question in the courts of common law in England has been that of a struggle between the ship-owners to create liens by stipulation, especially liens for demurrage, and of the courts to narrow the stipulations by construction. See Phillips v. Bodie, 15 East, 547; Faith v. E. I. Co. 4 Barn. & Ald. 630; How v. Kirchner, 11 Moore, P. C. 21; Tindal v. Taylor, 4 El. & Bl. 219; Bishop v. Ware, 3 Camp. 360. In nearly all the cases the obvious intent of the parties has been disregarded, and a remedy refused for a violated right. In this country the courts of admiralty have retained their proper jurisdiction, 'and can enforce the-privilege by whichever party this action may be invoked. Dupont de Nemours v. Vance, 19 How. 162; The Belfast, 7 Wall. 624; The Maggie Hammond, 9 Wall. 450.”
And upon the point whether the privilege extends to demurrage, not expressly stipulated for in the bill of lading,—
“The cases at common law do not afford much aid, because they recognize ho general responsibility of the goods to the ship, but only a right of retainer, which they say cannot be conveniently exercised in support of a demand for unliquidated damages,—a point of no consequence in the admiralty.”
These remarks are applicable to the cases of Crommelin v. N. Y. & H. R. R. Co. 4 Keyes, 90, and C. & N. W. Ry. Co. v. Jenkins, 103 Ill. 588, cited on the argument. , It was once held, and by some courts is yet held, that, in the absence of a stipulation in the bill of lading providing for the payment of demurrage, no claim for damages can be made. In Jesson v. Solly, 4 Taunt. 52, it was decided that if a consignee accept goods under a bill of lading, at the bottom of which is a memorandum that the ship is to be cleared in 16 days, and £8 per day demurrage be paid after that time, the master, upon delivery of the goods, may recover demurrage against the consignee. In Brouncker v. Scott, 4 Taunt. 1, which was a suit in assumpsit by the master of a ship upon an implied promise to pay demurrage, Mansfield, O. J., said:
“This form of action for demurrage, without a special contract to that effect,, is not of long standing, even in the case where the owners .of the ship are the plaintiffs; and, as it generates a question whether the time elapsed was a reasonable time, and also what is a reasonable compensation for the úse of the ship, it would be much better if it had not been encouraged, and iLtlie'ownor had-always made it a subject of special contract.”
And in Gage v. Morse, 12 Allen, 410, which was a suit at law by the owners of a vessel against the consignee named in the bill of lading for demurrage, it was held that if a bill of lading contains no provision for the payment of demurrage by the consignee, he is not liable therefor, even upon his acceptance of the cargo; citing Jesson v. Solly and Young v. Moeller, supra, and Chappel v. Comfort, 10 C. B. (N. S.) 802, and Smith v. Sieveking, 5 El. & Bl. 589. But it was held otherwise in admiralty, where the consignee was the freighter, in Sprague v. West, 1 Abb. Adm. 548, a leading case, decided by Judge Butts, in which, upon a review of the authorities, he said:
“Courts of admiralty act upon the rights arising out of maritime transactions, without regaid to modes or names of actions, and independent of all forms. Tlie suggestion that demurrage can be claimed upon the footing of express contract aLoue is undoubtedly giving too narrow an effect to the term. Every improper detention of a vessel may be considered a demurrage, and compensation in that name be obtained for it. 2 Hagg. Adm. 317; The Apollon, 9 Wheat. 362. ”
In The M. S. Bacon v. Transp. Co. 3 Fed. Rep. 344, it was held that an express stipulation for demurrage in a contract of affreightment is not necessary to entitle the owner of a vessel to compensation for her unnecessary or improper detention in loading or unloading: “Reasonable promptitude in delivering a cargo at its point of shipment, and in receiving it at its destination, is a duty implied in such contracts; and for a violation of it, damages, in tlie nature of demur-rage, are recoverable. This is too well-settled, both in England and in this country, to need discussion or authority.”
The observations of Judge Blodgett in Fulton v. Blake, 5 Biss. 375, 376, are also in point:
“All persons engaged in dealing with ships, whether master, crow, or consignee, are bound to give them dispatch, and whoever causes any unreasonable delay is answerable in damages. A consignee to whom the cargo of a vessel is consigned should, within the time prescribed by the usage of the port, after notice of the arrival of a vessel, furnish a suitable place for unloading or he shall pay damages for detention, whether demurrage be noted on the bill of lading or not. It may not be what is technically called demur-rage in the books, but it is damages for unreasonable detention, unless the vessel has arrived so far out of her expected time as to make such prompt dispatch unreasonable.” See, also, Cross v. Beard, 26 N. Y. 85.
• If is thus apparent that, in the present state of decision, there is no ground for the contention, at least in a court of admiralty, that the right to maintain a claim for demurrage or damages for unreasonable detention of a vessel is dependent upon the existence of a demurrage clause in the bill of Jading. That an admiralty action in personam will lie, in such case, against the consignee of the cargo, if he is responsible for such detention, is also beyond question, whether the bill of lading contains any stipulation on the subject or not* "Why has not the ship-owner also a lien on the cargo for demurrage,
But the-course of argument has led me to consider the question and the authorities at some length, and I am constrained to say that if the question wore an original one I should have little hesitation in coming to the conclusion announced. The libelants received from the consignee, or the consignee’s representative, the freight money due them, but it was received under protest and subject to the demurrage claim; and, upon the facts shown, I am of the opinion that the lien for demurrage was not waived or lost by reason of anything that transpired in relation to delivery of the cargoes or receipt of the freight moneys.
Decree for libelants.