278 F. 799 | D. Mass. | 1922
This is a libel brought by the owners of the barge Annapolis against its cargo to recover freight and demur-rage. The freight has been paid, and the only question now before the court is whether demurrage is due. The case was heard on a statement of agreed facts and the oral testimony of the master of the barge. The essential facts are as follows:
The charter party was executed on November 29, 1919; a copy of it is annexed to the libel. By its terms the barge was to proceed to Sew-all’s Point, Norfolk, Va., and there load a cargo of coal for Boston; the charterer (the Eastern Massachusetts Street Railway Company) was to have five days for loading and discharging cargo, to commence when the master should report the barge ready to receive or discharge. There was the following provision about demurrage:
“For each and every day’s detention beyond said time by default of said party of the second part or agent, ten cents (100) per ton on bill of lading weight per day and pro r.ata for portion of a day shall be paid by said party of the second part or agent, to said party of the first part, or agent.”
At the time when the charter party was -made, and during the period covered by this controversy, because of a strike of the miners in the bituminous coal fields, the United States government, through its Railroad and Fuel Administration and other agencies, had taken control over shipment of coal by water. It exercised absolute control over the delivery and.loading of coal at Sewall’s Point, and prohibited the loading of coal upon any vessel unless a permit therefor had been issued and was in force.
Prior to the charter party the street railway company had secured the necessary permit for loading the Annapolis. While she was on her way to Sewall’s point to load, this permit was revoked. When she arrived there and reported for loading on December 6, 1919, at 9:30 a. m., the charterer had no permit, and it was therefore impossible to load her.
This state of affairs continued — the barge lying at anchor in the harbor ready at all times to load — until December 12, 1919, at 3:45 p. m., when the charterer obtained the necessary permit. On the same day, however, 42 other permits were issued for other vessels. About 30 vessels were in the harbor for loading when the Annapolis arrived, and by the time the permit was obtained 10 more had come in. Docking facilities were too limited to take care of such a large number promptly, and it was not until 10 days later, on December 22, 1919, at 10:30 a.„m., that the Annapolis was docked for loading, which was completed that evening at 9:45 p. m. The docking and loading were under the control of the government. The Annapolis was not loaded in turn. About half a dozen vessels arriving after her were loaded before her. The claimant had a cargo of coal waiting to be loaded all the time the barge was in port, but was unable to put it on board for the reasons stated.
“ ‘Default’ does not mean ‘fault,’ but merely failure to comply with the agreement to complete the loading in the stipulated time. The only exception is vis major or its equivalent.” So. Trans. Co. v. Unkel (D. C.) 236 Fed. 779.
In that case it was held that prevention of loading by severe weather conditions did not excuse the charterer. See, too, Crossman v. Burrill, 179 U. S. 100, 21 Sup. Ct. 38, 45 L. Ed. 106; The Olaf (D. C.) 248 Fed. 807; M. O. H. of W. I., Inc., v. C. Hannevig, Inc. (C. C. A.) 264 Fed. 311.
term ‘default’ employed In that relation in the charter parties signifies failure on the part of the charterers to do or perform some duly or act which they have stipulated or are bound in pursuance of their contractual relations to do or perform. The term cannot be so broadly interpreted*802 as to include all manner of causes of detention or delay, whether arising from act or omission in the discharge of 'duty on the part of the charterers or not. In other words, the contract is not absolute that there shall be no detention^ beyond a certain day for any cause, but that there shall be no detention on account of the failure of the charterers to perform their contractual obligations with the vessel or its owners.” Wolverton, J., Washington Marine Co. v. Rainer Mill & Lumber Co. (D. C.) 198 Fed. 142.
It has been decided in England that the seller for export of an article then under government control does not undertake absolutely to obtain the necessary permit, but only to use reasonable diligence to do so, and is not liable for failure to deliver if, on making proper efforts, it is unable to obtain a permit. Anglo-Russian Merchant Traders v. Batt & Co., [1917] 2 K. B. 679. The obligation of a seller to deliver the goods sold to the buj^er is somewhat analogous to that of the charterer to deliver cargo to the vessel.