22 F. Cas. 970 | S.D.N.Y. | 1849
A cargo of one hundred and ninety-four tons of coal, belonging to the defendant, ■ was shipped at Philadelphia on board the libellant’s vessel. The master signed a bill of lading to deliver the same to the respondent at Forty-Second street, New York, for ninety cents per ton, freight.
The vessel arrived at the place designated on the 19th of December last, and the respondent, not being able to receive the coal at that place, ordered the master to moor at Twenty-Ninth street and unload there. The vessel took her berth at that place the same day, and the next morning was ready to commence discharging, of which a verbal notice, and afterwards a written one, was given the respondent, with further notice that demurrage would be claimed of him for any
Although the weather was at times stormy and the roads bad, yet, on the proofs, neither of these circumstances prevented unlading the vessel and removing the cargo at once; and it is well established toy the proofs, that with ordinary diligence the cargo could have been delivered in three days. The libel alleges that four days was amply sufficient.
The libellants undoubtedly took the hazard of working weather. The evidence to that point is satisfactory, that coal was constantly unladen and carted .from North river piers •during those days; and a vessel of the burden of this one, coming to her dock the same day, and having one hundred and fifty tons •on board, was completely discharged and sailed again within three days. The. ..state of the weather, therefore, did not prevent- the work being done.
The respondent was bound to take the risk of roads and means of transportation. from the dock. He was to take the coal as delivered him at the vessel’s side, and to supply means of removing it as fast as the - vessel could be reasonably discharged. This is'the general rule of maritime law (The Grafton [Case No. 5,656]
The respondent had then the 20th, 21st, 22d, and 23d days of December, when the weather was suitable and the vessel in readiness to discharge, which could have afforded him time to take away, the whole cargo. But, giving him four full days, including the 21st, and deducting Sunday, the 24th, and Christmas. the vessel should have been discharged the 26th, and her detention beyond that period was unnecessary, and caused by. the fault and delinquency of the respondent.
The position is taken by the respondent, in objection to the claim of demurrage, that it is only recoverable on an express stipulation to pay it, and that the bill of lading being an ordinary one in this case, the libellants have no remedy against the consignees, beyond the freight stipulated to be paid.
It is not to be denied, that the practice would be more prudent, and liable to cause less disturbance to navigation and trade, if the parties, as suggested in some of the English ■cases, would note in the bill of lading or charter party, the time allowed for lading or un-lading the vessel at her ports of affreightment or discharge, and also the consequences of overrunning that period. And probably, upon the more modern authorities (Abb. Shipp. 304; 3 Johns. i$42), a consignee cannot be made liable on an implied obligation for demurrage, no express agreement or stipulation being made in the charter party or bill of lading, in respect to it or to lay days. But the doctrine is different in regard to the freighter. He is held liable to the vessel for any unnecessary detention in loading or. unloading, although no express contract is made on the subject. Holt, Shipp, pt. 3, c. 1, § 25. To the same effect are the ancient ordinances, and the rules of other maritime countries. 1 Valin, 649, 650. And the English courts, though hesitating somewhat at terming' the compensation demurrage, hold that the freighter or consignee who improperly detains a vessel, is liable to a special action on the case. for the damage resulting from such detention.. 9 Car. & P. 709; [11 Mees. & W. 498].
The jurisdiction of the court over sea freights and demurrage resulting from such voyages, it appears to me, is indisputable, and the branch of the defence resting on exceptions to the jurisdiction is overruled.
I shall accordingly decree against the respondent as owner of the cargo, damages by way of demurrage for the unnecessary detention of the vessel from the 26th of December to the 4th of January.
Various methods of computing these damages are referred to and adopted by the courts. The Anna Catharina, 6 C. Rob. Adm. 10; Holt, Shipp. 338, § 28; Abb. Shipp. 304; Hooper v. 51 Cases of Brandy [supra]. See, also, the case of The Rhode Island [Cases Nos. 11,740a, 11,744] note 1. The usual earnings of the vessel in her regular course of employ, is, perhaps, a method not less entitled to adoption ■ than others frequently approved and acted upon. It is in proof that upon average voyages' of from fifteen ■ to eighteen days, this vessel was earning at that period about $10 per day. No doubt that is a low' valuation of her worth to the owners, but it may be as safe a criterion to guide the judgment of the court in estimating the loss they incurred by being deprived - of her services that period, as the opinion of witnesses to her charter value in herself by the month or day. It belongs to the libellants . to give satisfactory proof to this point, and -to supply
Assuming that as the basis of computation, the detention of the vessel would deprive her of earning, as she was then fitted out, manned, and provisioned, from ten to twelve dollars per day. I shall allow for the nine days’ detention one hundred dollars.
Decree accordingly.
[This cause was carried to the circuit court by appeal. The appeal, however, was abandoned, and the cause was settled without an argument.]
This case was afterwards affirmed on ap-. peal to the circuit court.
[From 8 N. Y. Leg. Obs. 241.
[From 8 N. X. Leg. Obs. 241.]
