11 F. Cas. 1127 | S.D.N.Y. | 1876
There is not, in the bill of lading in this case, any clause as to the number of days to be allowed for discharging the cargo, or as to demur-rage, or any clause requiring dispatch in discharging, or relating to discharging, except that ice and dunnage are “to be discharged by consignees with assistance of crew.” Under these circumstances, the only obligation resting on the respondents, under the bill of lading, was to take the ice in the usual and customary way, with reasonable diligence. Their liability resulted from implication of law and extended only to the exercise of proper diligence in the customary manner. Ford v. Cotesworth, L. R. 4 Q. B. 127, L. R. 5 Q. B. 545; Cross v. Beard, 26 N. Y. 85; Coombs v. Nolan [Case No. 3,189]. In this case no fault or negligence is shown on the part of the respondent. A fleet of vessels all laden with ice arrived together, having been delayed by bad weather. They were discharged in the order of their arrival, in the customary way. The case is not like that of Keen v. Audenried [Id. 7,639], where the charter party required “dispatch in discharging,” and where' it was held that the vessel was not obliged to await her turn, in respect of other vessels which the consignees of her cargo were discharging, nor to yield to any custom to that effect obtaining with such consignees. In cases like the present, it is not sufficient to show delay, but some deliquency or fault must be shown. In the present case, with such a cargo as ice, and under the course of dealing with such cargoes by the respondents, as shown by the evidence, I think the respondents were entitled to all the time they took to unload the cargo of this vessel. The libel is dismissed, with costs.
This decision was affirmed by the circuit court, on appeal, June, 1878. [Case No. 6,364.]
