54 F. 185 | N.D.N.Y. | 1893
The steamer J. E. Owen left Chicago with the schooner E. A. Nicholson in tow November 20, 1891, and arrived at Buffalo Friday, November 27, 1891, at 6 P. M. The Owen carried a cargo of corn, consigned to the order of the shippers under a bill of lading containing the following provisions: “Order of Boy den and Go. Notify McIntyre and Wardwell, New York. Care oí G. J. Boss, Agt. N. Y. C. B. XL, Buffalo, N. Y.” The Nicholson carried a cargo of rye consigned to the order of the shippers under a bill of lading containing the following provisions: “Order Irwin Green & Co. Notify Power, Son and Co., New York. Care S. D. Caldwell at City
What is'the law applicable to this situation?
Demurrage is an extended freight or reward to the vessel in compensation of the earnings she is caused to lose improperly. Strictly . speaking, demurrage can only be recovered where it is reserved by the charter party or bill of lading. Where no such express reservation exists the remedy is by an action, in the nature of demurrage, for damages for the wrongful detention. Cage v. Morse, 12 Allen, 410. Every wrongful detention may be considered a demurrage, but in the absence of an express agreement damages can only be recovered upon proof that the delay complained of was due to some fault or negligence on the part of the respondent. The ourden of proving this
Applying the law to the facts in hand it is clear that the libelant is not entitled to damages for the detention of her boats. The onus was upon her to prove negligence and she has only succeeded in raising a doubt The interpretation of the testimony most favorable to the libelant only establishes the proposition that if the consignees had been informed of the exact capacity of the other elevators during the time in question they might possibly have secured the necessary room. This, in no circumstances, is sufficient to establish negligence. The grain was consigned to elevators having New York Central Bailroad connections; this was part of the contract; was well known to the libelant’s agent and, I am Inclined to think, exonerated the consignees from providing another elevator; but assuming that they were required to look elsewhere the proof falls far short of showing that they were guilty of laches in this respect. They certainly were not required to lake a floating elevator or receive the grain for storage on an island or in canal boats. They were at least entitled to have their grain go on to its destination, and it could not go otherwise than by rail. I am not satisfied that they could have provided, during the week beginning November 30th, another elevator which could have released the vessels sooner than the City elevator. It is possible that they might have done so, but this possibility ⅛ not enough. Certainly the court would be un
It follows that the libelant is not entitled to damages,' but is entitled to recover freight in each action and interest from December 9, 1891, besides costs.