19 F. Cas. 492 | S.D.N.Y. | 1867
In regard to No. 58, she was bound by the contract to go to Catharine street. She went there and was then ordered by the respondent to go to Dover street, and she then went there. Undoubtedly, the respondent ordered her to the place where he thought she could be most quickly discharged. But, by the contract, the whole duty of the libellants was discharged in taking the cargo to Catharine street, and notifying the respondent of its arrival, and awaiting his orders. This was done. The plain interpretation of the provision of the contract, “demurrage $10 per day, after four days,” is demurrage $10 per day, after four days from the time the' vessel arrives at Cath-arine street with the cargo, and her captain notifies the respondent of his arrival. So, too, No. 75 was bound to go to the place where she should receive instructions at New Brunswick to go, and it being shown that she was at New Brunswick instructed to go to Dover street, the contract stands as if Dover street had been originally inserted in it as the place of destination. Her arrival at Dover street having been notified by her captain, the same observations, apply as In the ease of No. 58.
The proof as to a custom or usage, that the words, “after four days,” and “after four lay days,” mean, “after four lay days from and after the time when the boat gets a berth, so that she can commence discharging her cargo,” does not establish any such custom or usage. The burden of proving such a custom is on the respondent, and he has failed to make out any such custom. Besides, I do not think the evidence as to such a custom has any reference to bills of lading like those in this case, where, by the terms of the contract, the cargo is to be delivered at a particular place. It might, perhaps, apply to a contract where the cargo was deliverable generally at New York. The usage, if made out and applied to bills of lading like those in this case, would throw on the owner of the vessel the loss by delay in getting a berth, when he had no discretion as to the selection of one, but was bound to deliver at a particular dock. This would be unreasonable. Where the contract is for delivery generally at New York, there ought to be a propriety in throwing on the owner of the vessel the burden of finding a place to discharge the cargo, and in holding that the days allowed to discharge it, by the contract, did not begin to run till the place had been found, so that the consignee could actually receive the cargo, and in allowing evidence of a custom to that effect. But, where the consignee of the cargo requires it to be takei to a particular place, he ought to be held li:. ble for any delay caused at that place, with which the vessel cannot be shown to be directly chargeable, and no usage ought to be allowed to vary a plain contract to that effect.
In the present case, it is shown, in regard to No. 5S, that the respondent was notified, two days before the boat arrived at Catharine street, that it would be impossible for her to discharge there because of the condition of the dock, and that there was then abundant time for him to have sent instructions to the
The libellants are entitled to a decree for $90 demurrage on No. 58, being for nine days, at $10 per day, and for $120 demurrage on No. 75. being for 12 days, at $10 per day, with interest thereon from the date when a demand was made for it