18 F. Cas. 708 | E.D.N.Y | 1875
This action is to enforce a lien upon a cargo of timber and lumber for the amount of freight and demurrage claimed to be due upon a charter, made between the master of the schooner Gertrude E. Smith and H. H. Colquit & Co., of Savannah. The charter fixes the freight at the rate of $7 on timber, and if6 on lumber, per thousand superficial feet, payable on proper discharge of cargo, for each thousand feet delivered. There is no clause in the charter in terms binding the cargo to the performance of the contract. Under this clause the lumber and timber proceeded against was loaded; and, as the libellant insists, a claim for six days’ demur-rage was created by delay on the part of the charterer in loading the vessel. After the loading was completed, the master issued bills of lading for the timber and the lumber, respectively, which provided for a delivery to order in New York on paying freight as per charter-party. These bills of lading contain no other reference to the charter, and make no mention of a claim for demurrage. Afterwards these bills came into the hands of two parties in New York, who made advances upon them, without notice of the existence of any other charge upon the cargo except that for freight, at the rates of §7 and $6 per thousand feet, as stated in the bills of lading. Upon the arrival of the cargo in New York, delivery was tendered, on payment of freight and demurrage. The holders of the bills of lading offered to pay freight, but refused to pay the demurrage; whereupon the ship-master libelled the cargo for the freight and demurrage. The holders of the bills of lading intervened and defended separately. Upon these facts the question to be determined is, whether the shipmaster was entitled to hold this merchandise as against the holders of the bills of lading, not only for the freight named in the bills of lading, but also for the amount of the demurrage, which he claimed to have shown to have become due by reason of the charterer's delay iii loading.
This question I must determine adversely to the libellant. Such bills of lading as were in this instance given, in the hands of innocent third parties who have advanceu upon the faith of them, have the effect to release the merchandise from any lien, except for the freight. Consequently, the master had, as against the claimants, no lien on the cargo for the demurrage, and should have delivered it upon payment of freight. It appears that, as respects the lumber, there'has been a full payment of the freight on that since the commencement of this action. The freight upon the timber has not yet been paid. It also appears that the consignees of both the lumber and the timber were at all times ready and willing to pay the freight upon receipt of the cargo.
The decree will accordingly be, that the libel against the lumber be dismissed, with costs to be taxed; and that, as against the timber, the libellant recover the freight according to the bill of lading, less the claimant’s taxed costs.
