69 Ga. 340 | Ga. | 1883
The plaintiff was a wharf owner in the city of Savannah, and brought suit against the defendants to recover wharf-age for “landing” the cargo of the barque “Traveller,” and “shipping” the said cargo upon the barque “Aereóla.”
In opposition to this view of- the matter, our attention has been called to the case of Stephen et al. vs. Costor et al., 3 Burrow’s R., 1408, in which it was held, that wharfingers in Londo|n are not allowed to charge wharfage for goods unladened into lighters' out of barges fastened to their wharfs. The act of parliament under which this claim was made, established rates for wharfage and cranage in cases-in which such services were required, but not for “landing” and “shipping,” as does the act of our legislature. Lord Mansfield, after stating the question, says, “ It is not contended on the part of the wharfingers that any meaning is to be put upon the words, ‘ all such goods and merchandizes shall be actually loaded or unloaded when they are brought thither.’” This, was the case of putting goods on lighters. The goods were not to be shipped from that port to another, but were to be landed from the lighters either at that or some other wharf of the same port. The learned judge, after declaring that the case is neither within the act of parliament nor the order of council based thereon, gives this reason for that opinion, that'the legislature would not give the same duty for this (if they really meant to give any) as they gave for landing the goods upon the wharf; they would certainly have given a smaller duty for this alone; because the duty must still be paid again whatever wharf they shall at last be landed upon. He shows that this lighterage could be effected as well without mooring or fastening to the wharf, as by doing so, and if the barge was fastened to the wharf, for this or any other purpose, the proprietor had his remedy to recover compensation for such use of his property.
“ Wharf accommodation is a necessity of navigation,
If this legal right to charge for “loading” and “unloading” wherever the wharf is used for that purpose, whether the goods are actually landed from one vessel and then shipped on another or not, needs reinforcement, it will be found in the universal custom of the port of Savannah, varied only by contract in particular instances, testified to by every witness, including both plaintiff and defendant examined in this case.
(1.) That there was a contract between these parties in reference to the use of this wharf.
(2.) That by the custom of the port it was usual to charge only one wharfage under the circumstances of the case.
The verdict of the jury found that only one wharfage was due.
The court, among other things, submitted both these defences to the jury, and charged them, “ although the plaintiff might have a legal right to charge, in the absence of contract, two wharfages, one for the taking out of the cargo of the ‘Traveller,’ and the other for the putting in the cargo of the ‘Aereóla,’ yet if they found from the
So much of the charge as is above quoted, was excepted to, and we think the exception well taken; because there is no evidence in the case to sustain the assumption that it was the custom of the port, under the circumstances, to charge but a single wharfage where the cargo is trans-shipped immediately from one vessel to another. There is not a single witness who testifies to any such usage as that referred to in this charge. Even Gandry, who intimates something of the sort in his direct evidence, states explicitly on his cross-examination, that the word “ landing ” as used among the shippers and wharfingers of the port, means taking the cargo out of a vessel, and the word “ shipping” putting the cargo into a vessel, either with or without the intervention of the wharf, and where a cargo is transferred from one vessel into another, both lying abreast at the same wharf, there is both a “landing” and a “shipping.”
There was evidence enough in this case to show that this usage or custom was frequently departed from by an understanding between the parties, and an attempt was made here to supersede the custom by a contract, into which the plaintiff refused to enter, and of which refusal the defendants were notified, before the trans-shipment in
The defendants insisted upon their liability for only one wharfage, both under the law and upon what they claimed to be the custom of the port under the circumstances of this case.
It is very evident from all the testimony in the case, that there was no such universal custom in this particular instance as that relied upon by the defendants, none such as could make it by implication a part of the contract between the parties. See Ocean Steamship Company vs. McAlpin, decided at this term. That wharfingers at the
The charge excepted to submits to the jury questions growing out of the alleged custom upon which the defendants rely ; and also, those growing out of the contracts claimed to exist between the parties, when there is no evidence in the case to authorize it in either aspect.
The motion for a new trial was made upon the grounds that this charge was erroneous ; that the verdict was contrary to law and evidence, and without evidence to support it, and from the view we take, it should have been granted upon all these grounds.
Judgment reversed.