44 F. 805 | D. Maryland | 1891
This libel for wharfage arises out of disputes between file same adjoining wharf-owners and with reference to the same adjoining wharves which were involved in the case of Ranstead v. The Wm. H. Brinsfield, decided in this court, and reported in 39 Fed. Rep. 215. The defendant, Fahey, is the proprietor of a wharf fronting 85 feet on a private dock opening into the Patapsco river, and the libelant, Eanstead, is the owner of the next adjoining wharf. Fahey is a dealer in coal, wood, and sand, and the vessels which discharge the cargoes purchased by him at his wharf are of such length that they overlap on to Kan-st end’s wharf. The libelant claims to recover in this case not only a ¿¡•¡•o rata proportion of the customary wharfage charge for a largo number of vessels loaded with wood, which by overlapping made use of a berth c long-side a portion of his wharf, but also to recover a pro rata of the customary wharfage charge for the. cargoes which were discharged from the vessels, although all the discharging was onto Fahey’s wharf, and none onto the libelant's. It was held in the case of The Wm. II. fírins-jirld that vessels at Fahey’s wharf, so overlapping, wore liable to pay to Eanstead his pro rata proportion of the customary charge for the whole berth furnished the vessel, and that, the Wm. H. Brinsfield being a foreign vessel, it was held that thero was a maritime lien. This case presents two other questions: First, whether in addition to the proportion of the customary charge for the vessel, which is rated by her tonnage, the adjoining wharf-owner is also entitled to a proportion of the customary rate of wharfage charged for discharging the cargo, which is rated by the quantity of cargo discharged, and which with respect to wood is reckoned as so much per cord. The second question is whether die defendant in this caso, as the purchasers of the cargoes, by whose direction they were sent to this wharf, is personally liable for either the
It must be conceded that there is no actual use made upon which to base a claim for compensation. The wharf-owner, no matter how his wharf may be occupied, is at the same expense to keep the dock dredged out to enable overlapping vessels to lay along-side, and the vessel lying there has the benefit of it; hut his wharf may be built upon to the water’s edge, or it may be completely covered by merchandise, so that nothing more can be landed upon it, in which case-it would seem unreasonable that he should receive compensation for a constructive use which could not possibly be actually made at his wharf. It is obvious also that for many cargoes a specialty constructed wharf is necessary, so that the adjoining wharf might be unsuitable to receive the cargo, while the wharf actually used might have been fitted by special expenditure to receive it. So long as the customary charge is made up of two distinct items, — one for the use of berth in the dock occupied by the vessel, and the other a charge for the cargo, only exacted when there is actually cargo loaded or unloaded, and only for just so much cargo as is put on
The other question is whether the defendant, Fahey, is liable in personan i for the wharfage on the vessels. The proof shows definitely with respect to some of the cargoes that by the terms of his purchase they were to he delivered to him at his wharf, free of any charge to the vessels for wharf-age; and with regard to all of them the custom of the trade is proven to be that the purchaser of the cargo directs where it shall be delivered, and assumes to pay all wharfage charges at the place provided by him. It is shown that the libelant demanded wharfage of the masters of some of these vessels, and that defendant’s agent in charge of his wharf and of the business of discharging cargoes there stated that the defendant would l>e responsible for whatever charges might be lawfully recovered, the masters having refused to deliver the wood without such an understanding. The defendant and his agents thus received the cargoes with the distinct notice of the claim, and that the defendant would be held for it, and his agents were called upon to see that the measurements of overlapping were correctly made. There can be no doubt, I think, that the whole matter was thoroughly understood, and that the defendant received the cargoes protesting that no wharfage was chargeable, hut with the understanding that if any wharfage was properly chargeable he was to pay it, and that there was an implied, if not an express, contract that lie would pay it. There is no question but that such an implied contract to pay wharfage is a maritime contract cognizable in admiralty. It is similar to the implied contract of the consignee of a cargo.who receives it with notice of a claim for freight, and such implied contracts to pay freight are very frequently enforced in admiralty. Hen. Adm. 166. A decree will be signed in accordance with this opinion.