195 F. 929 | 2d Cir. | 1912
“VI. Also that the goods are to be received by the consignee immediately the vessel is ready to discharge and continuously at all such hours as the custom house or port authorities may give permission for the ship to work or if necessary to discharge into lighters at the risk and expense of the consignees.”
This is an express covenant, though it does not define the amount payable in case of default. The situation is not to be treated as if nothing had been said on the subject of the time in which the cargo was to be received. In such a case the consignees would have been only under an implied obligation to receive it in a reasonable time, and would therefore have been responsible only for their own delays. But this covenant containing no exceptions in favor of the consignees requires that they take the cargo as soon as the vessel is ready to discharge and with the continuous discharge usual at the ports of Takao and Keelung. They are not to be relieved of this obligation because of the lack of lighters, even if resulting from acts of the Japanese government. For any breach of this covenant because of delay in receiving cargo, the respondents, as shippers and parties to the bills of lading, are liable. The commissioner and District Court have found that there was a delay of 18 days, which finding we adopt.
It is to be noted that the claim arises out of contract, that the regular expenses of tlie libelant continued throughout the period of delay, and that the damages are to be calculated at the end of the voyage, when the actual number of days needed and the number of days the voyage was unnecessarily prolonged are known.
Sometimes the market value of a vessel is adopted as the measure of the damages; but there is no evidence of any market value at Takao or Keelung. Sometimes the loss of a definite engagement for the vessel is allowed, of which there is no evidence in this case. Sometimes, in the absence of all other evidence, the charter rate of demur-rage is adopted. In this case we think the fairest measure is to treat the damages as extended freight, and to give the libelant for the period of delay the same amount per diem as the respondents agreed to pay for the voyage. This represents the value of the use of the vessel to the libelant at the time. If during the period of detention the libel-ant had saved anything, for instance, coal, such an amount should be deducted; but the evidence is to the contrary. The steamer, lying in an open roadstead subject to monsoons, kept up steam on her main boilers night and day. On the other hand, if the libelant had incurred an additional expense or loss, of which there is no evidence, that ought to be added.
In this case compensation is to be ascertained by dividing the gross freight paid by the respondents, $21,039.94, by the number of days the voyage should have taken, viz., 114, multiplying the 18 demurrage days by the dividend, $184.56, and from the product, $3,322.08, deducting the sum of ¿212 received on account, and not in settlement, from the consignees at Formosa. The decree is reversed, and the court below directed to enter a decree in favor of the libelant in accordance with this opinion, with interest and costs of both courts.