9 F. 209 | E.D.N.Y | 1881
This is an action in rent to enforce a lien, claimed by the libellant upon a quantity of mineral phosphates lately on board the brig Dauntless, for delay in removing the same from the vessel aforesaid. The facts are somewhat peculiar:
The brig Dauntless arrived in the port of New York, from Brazil, laden with the phosphates in question, and was entered at the custom-house on the thirtieth day of July, 1881. Upon her arrival the property was seized by the marshal of this district, by virtue of process issued against it in an action of possession brought by one James G. Jewett, who claimed to be the owner of the property, and that it was wrongfully detained by the master of the brig. In that action the property in question was thereafter sold by the marshal as it lay in the vessel. The terms of sale were as follows: “ Cargo of the Dauntless to be sold as it is on board, and as 275 tons in weight, and this number of tons to be paid for to the marshal; weight to be determined by the weigh-in aster’s return, and purchaser to pay for any tons over 275 tons; and the marshal will refund the sum per ton for weight short of 275 tons. Bids to be for the ton of 2,240 pounds. The weigh-masters to he appointed by the marshal. Terms, 20 per cent, on day of sale, and the balance to make up the amount of 275 tons weight within three days after and before delivery of any cargo.” The sale took place on Wednesday, the eighth day of September. The claimants bid oil the phosphates, and paid the 20 per cent, on the spot. On the 13th they paid the balance of the purchase money, and on that day removed 50 tons from the vessel. The discharging continued until the twentieth of September, when all was removed. The master of the vessel claimed demurrage for the detention of 1ns vessel after the eleventh of September, and, being refused, brings this action against the property to recover for such detention.
Upon the trial the claimants endeavored to show an express agreement between them and the master to allow them eight days in which to remove the property, but the testimony has not satisfied me of the
Upon the question of what was a reasonable time within which to remove this property, I am of the opinion that with reasonable exertion all could have been discharged by the 16th. This leaves four days to be paid for. Thirty dollars a day is reasonable demurrage, and the amount of the demurrage is therefore $120.
The next question is whether a maritime lien attached to this merchandise for the amount of the demurrage in question. Here the peculiarity of the case is that the acts complained of which give rise to the claim for demurrage are not the acts of a shipper or of a consignee of the merchandise. The claimants were no parties to the contract of affreightment under which the property had been transported, — if such a contract there was, — but simply purchasers of the property as it lay in the vessel. Moreover, they purchased from the marshal, and must be held to have received the merchandise from the marshal free and clear of any existing encumbrance or charge.
The question presented by this state of facts appears, therefore,at first sight, to be different from the question that arises when the acts complained of are those of a shipper of property; or a consignee of property, under the ordinary contract of affreightment. And yet, in principle, there is no difference; for demurrage is only a reward to the vessel in compensation of the earnings she is improperly
There must be a decree in favor of libellant for the sum of $ 120, and costs.