46 F. 129 | S.D.N.Y. | 1891
The above libel was filed to recover $2,271.01 freight, and $2,010 demurrage, for 67 days’ detention of the brig Caroline
Upon these facts, I deem it unnecessary to consider many of the details presented in the elaborate and able brief of counsel. I must find that the entry and payment of duties were in part incorrect and insufficient. To that extent the action of the customs officials was justified by the event. The manifest, and the payment of duties, as respects the mahogany, were wrong, because less than the ship’s measurement, deducting the cedar; and the duties paid on the cedar were confessedly too small. The evidence leaves no doubt that the charterers knew the measurement of all the wood shipped, since the bill of lading, made out by them, states the measurement very nearly correctly. If the difficulty as to the mahogany arose primarily from the erroneous construction of the law by the officials, it must be inferred that the charterers were willing to profit by the error, since they did not communicate to the officials their own measurement of the mahogany, when entry and payment according to measurement were demanded, but accepted and paid duties upon a subsequent very low official measurement, which the charterers must have known, I think, to be grossly incorrect. Payment or deposit of duties in the beginning, according to their own measurement, would have avoided all trouble. It was evidently the original concealment of the charterers’ own measurement, and the subsequent disclosure of it by the bill of lading, that led the officials to unload and remeasure the cargo, and this caused the delay. The plain error as to the cedar, though small, was also in itself more than a technical violation of the law, and placed the charterers in default. The vessel had nothing to do with ail this, and was in no way responsible for it. The charterers were bound, not merely to get a clearance for the cargo, right or wrong, but to do at least all that belonged to them to do to get a proper clearance. The clearance they obtained was justly liable to be revoked, and was revoked, and the vessel was stopped, because the charterers did not make a true and correct manifest, nor pay or tender sufficient duties. The detention that grew out of this failure was therefore a detention by their default, within the terms of the charter contract. It is said that if the master had departed instantly, when the clearance papers were given him in the forenoon of Saturday the 13th, the vessel would have escaped seizure, and the delay have been thus avoided. The master testified that he did not obtain his papers until about 4 o’clock in the afternoon, and then applied for a pilot, and was told that he could not have one that night, but could have one the next morning, and early the next morning the vessel was seized, as above stated. The interval of a few hours, from about 10 to 4 at most, even if the charterers are correct as to the time when the clearance papers were sent to the ship, is quite too small to hold the ship in fault for the subsequent detention. In no sense was it the proxi