20 F. Cas. 621 | U.S. Circuit Court for the District of Eastern Virginia | 1877
The amount of the draft due to the charterers, and the amount of the disbursements made by them, are not disputed, and the only questions open for adjudication, are: 1st. Whether demur-rage is due, and how much? 2d. Whether damages are due for the refusal of the master to take cotton, and how much? and, 3d. Whether, under the circumstances of this case, the master had a right to refuse the draft due for the difference of freight, and what are the consequences of his refusal, in respect to costs and damages?
1. I think it is clear from the evidence that the long period of more than 40 days consumed in loading the vessel was owing to the delay occasioned by the crowded condition of the wharves and the time consumed in finding and extricating the bales belonging to the lots which were intended for this ship. It seems that in the early stages of loading a vessel, 000 bales may be put on in a day. At the rate of only 200 bales a day, this vessel could have been loaded in 30 days, whereas, more than 40 were consumed, and in some of the days less than 100 bales were put aboard. This delay must have been the fault of the charterers. I do not think, however, that both the 3d and 4th days of November should be counted. The ship had gone over to Gosport in ballast, well trimmed. The ballast had been taken out fi-om the most accessible places in the vessel, most or all of it from some one position. The taking it out in this manner of necessity left the ship out of trim, and when she came over to the Norfolk wharf next day, Mr. Donald naturally found that this state of things would require to be corrected before he could begin the work of loading. I shall not, therefore, include the 3d of November in the lay-days. It is trae that the custom of the port would exclude this day, but the charter-party does not recognize the first and last days of loading as one day, and special contracts always override custom. I must hold that the lay-days commenced on the 4th November and ended on the night of the 13th December. The demurrage days up to the time of the refusal of the master to sign the draft for excess of freight, would be from the 13th to the 18th inclusive, or five days.
2. I come next to the matter of ballast and the master's refusal of ship-room for additional cotton. The truth seems to be that the agent of the ship-owners provided for too small an amount of ballast in the charter-party. The weight of the testimony is that 250 tons was not a sufficient quantity for this particular ship. The master sought to correct this difficulty by indirection. I do not suppose that any impartial person who heard the evidence on the subject can believe that 150, or even 100 tons of ballast, were taken from the Joseph on the 2d November. The testimony of experts is, that only from 55 to 80 tons could have been taken out by 17 hands in 10 hours. Mr. Donald testifies that in his opinion 350 tons were left in the hold, and from liis great experience anil known character, I have the highest respect for his opinion and confidence in his judgment. I feel bound to believe that somewhere about 350 tons of ballast were left in the hold. In abundant liberality, however, I will deduct from this
3. I come now to the subject of the .master's refusal to sign the draft for freight due the charterers. Such drafts are among the most important of the financial instruments required for moving cotton from its places of production to its ultimate markets. In the present instance the draft covers every charge of handling except of the mere carriage of the cargo from Norfolk to Liverpool, including the cost of bringing it from Memphis and other places in the cotton region by railroad here. It is the duty of all men engaged in commerce to facilitate its operations by every means in their power. They show themselves very unworthy of their calling when they needlessly obstruct those operations. Commerce exacts caution, but abhors obstructiveness. The master of a ship has no right to refuse the signing of such a draft as the one under consideration, as a means of compelling the allowance even of a just claim for demurrage of an amount wholly dispro-portionated to that of the draft. He has other remedies for the satisfaction of claims of this character, without resorting to an expedient which may affect not only the inter-•osts of his immediate charterers, but of the many third persons who are usually connected with such drafts as this. Such a practice would be intolerable, and can find no favor or countenance in an admiralty court. Consignors are usually men of ample responsibility, and the masters of vessels have always an instant remedy by libel in personam against their charterers on the instance side of this court for their claims to demurrage. In the present case the draft due was for about $10.000. The master’s claim for demurrage, ns preferred by himself, was only for $025. He also owed his charterers for cash disbursements the large amount of $2.973.08. And they had an un-ascertained claim against the ship besides for a large loss of ship-room denied them by the master. His refusal, therefore, to sign the draft on Liverpool for an amount which he «lid not then and does not now dispute, was illegal and unjustifiable, and he thereby rendered his ship liable to this libel and to the costs of this proceeding.
A decree was given requiring the master to sign the draft; also requiring payment to the charterers of $2,973.0S for disbursements and •of $720 for loss of ship-room; and in favor of the master for $625 as demurrage, and requiring the costs of this suit to be paid by the ship, amounting to $S2.97.
