Houge v. Woodruff

19 F. 136 | S.D.N.Y. | 1884

Brown, J.

As the respondents bought this salt from the consignee,, who had entered it as his own, and took no transfer of the charter-party or bill of lading, and had no knowledge of either, they are not responsible upon any of the provisions of those instruments. 1 Maude & P. Merc. Shipp. 393. The whole evidence, however, makes it clear that upon the purchase of the salt, which was by verbal contract only, they were to receive it from the ship. Their obligations with respect to the discharge are, therefore, only to use reasonable diligence, in conformity with the customs of the port, as in cases of the absence of any bill of lading, or of any stipulation in the bill of lading on the subject of discharge. Coombs v. Nolan, 7 Ben. 301; The Hyperion's Cargo, 2 Low. 93; Cross v. Beard, 26 N. Y. 85; Henley v. Brooklyn Ice Co. 14 Blatchf. 522; Kane v. Penney, 5 Fed. Rep., 830.

Considering the sworn testimony of the captain shortly after the transaction, and the contents of his letter of the 28th, I cannot doubt that the vessel went to Merchants’ stores by direction of the respondents. On the 27tb she obtained a berth and was ready to discharge there on the 29th, after a delay of two days. She then went to the Wallabout, at the request of the respondents, where there was a further unavoidable delay of two days; but after those two days she could have obtained a berth had the ice not further delayed her. It cannot be assumed, in the absence of positive proof to the contrary, that the directions of the harbor-master were improper, or that there was any other vacant berth which she could have procured earlier. Where a vessel has once obtained a berth at a dock, directed by the merchant, and is in readiness to discharge there, the merchant certainly has no right, in the absence of a particular usage, or of some stipulation authorizing it, to send the vessel to another berth, except at his own expense for the removal, and for any delay which properly arises from it. Where an established usage has been proved giving the merchant a right to, at least, one change of berth in the discharge of the cargo, he is not liable for the delay caused by the removal, because that is-a part of the vessel’s obligation. Smith v. 60,000 Feet of Yellow Pine Lumber, 2 Fed. Rep. 396, 400; Moody v. 600,000 Laths, Id. 607. No such usage was proved in this ease; nor, in fact, was any part of the cargo discharged at Merchants’ stores.

The Wallabout basin was a proper and customary place for the discharge of salt. The respondents might properly have directed the vessel there in the first instance, but as the vessel had already lost two days’ time in obtaining a berth at Merchants’ Btores under the' respondents’ direction, and the same time would have been necessarily lost at the Wallabput in obtaining a berth by the 31st, the respondents must be charged with the two days’ double delay caused through their own change of direction. The master, it is true, seems to have acquiesced in this removal, because the charter-party required him to make one removal in delivery, if desired; and he does not appear to have understood that the respondents were not bound by the terms of the charter-party. The respondents cannot claim the benefit of this provision, unless they are willing to be bound to discharge at the rate of 50 tons per day, which they do not accept. The charter-party must therefore be wholly disregarded. As the first of January was a holiday, and the 2d was Sunday, there was but one additional day’s lost time, namely, the 3d, before the vessel had got along-side her berth and commenced her discharge. This delay was caused by the ice, and not by the fact that the vessel grounded in the mud at low water. The ice arose from extreme and unusual cold,—a fortuitous accident of the elements, for which the owner of the cargo is not responsible, in the absence of specific lay days, and when liable only under the obligation to use reasonable diligence in receiving cargo. Cross v. Beard, 26 N. Y. 85; Coombs v. Nolan, supra; The Mary E. Taber, 1 Ben. 105; The Glover, 1 Brown, Adm. 166; Fulton v. Blake, 5 Biss. 371; Kane v. Penney, supra. After the 4th, one day, the 9th, being Sunday, there was no delay in discharging beyond the customary rate, which would allow eight working days.

Decree for the libelants for two days’ demurrage, at the customary rate of 10 cents per ton per day, amounting to $84.