46 Conn. 277 | Conn. | 1878
This is an action of assumpsit for demurrage. On or about December 14th, 1876, the plaintiff received on board of a vessel at Baltimore á cargo of coal consigned to the defendants at New Haven, at which port he reported himself on the 24th of December, and asked for a berth in which to discharge; but he did not come to any dock, for the reason that the ice was so thick that he could reach no wharf in the harbor unless through openings made by steam tugs or otherwise, before the 19th of January, 1877. Between these dates the defendants daily broke a passage through which they towed vessels to and from their own docks. On the day of the plaintiff’s arrival they opened a passage and towed through it vessels loaded with coal consigned to themselves which had arrived prior to that day; and when his turn came they opened a passage for and towed his vessel to their dock. The ice delayed him four days, and for this he demands damages. The defendants had a judgment.
Passing the question made as to the power of the person signing the bill of lading, and assuming for the purposes of
Upon notice to the defendants of the arrival of the plaintiff’s vessel at New Haven it was their duty to be ready to receive the coal, or designate some wharf or other proper place where it could be deposited in a reasonable time. They failing in this duty, it was the right of the plaintiff to treat the contract as broken, and deposit the coal at the usual place, if there was any such, or procure one at their expense. The contract to deliver at the port of New Haven implies more than bringing the vessel into water within a line drawn across the mouth of the harbor; in the absence of any special provision and of any custom to discharge into lighters, it imports that the carrier is to bring his vessel to some wharf, or convenient or customary place of discharge, where he can deliver and the consignees can receive the cargo, according to the usage of -the port. In the case before us the plaintiff was barred by the frost from every wharf or landing place which the defendants could designate or he could select; he could not deliver the coal upon land; the contract did not oblige them to go upon the ice to receive it; in fact his (.progress was arrested before he had brought his voyage to the contract termination, and that by no fault of' theirs; it was a misfortune which the law must leave where it falls.
As the defendants did not contract to protect the plaintiff against the action of frost, they owed him no duty in respect to it. If for any reason they chose to open a way for the passage of another vessel the contract relation between themselves and the plaintiff was not thereby changed; he acquired no right to the way thus made; such other vessel having gained prior access to and occupied it, as a matter of law it did-, not exist so far as the plaintiff is concerned.
In Parker v. Winlow, 7 Ellis & Blackburn, 910, the tides
We do not advise a new trial.
In this opinion the other judges concurred.