296 F. 913 | 5th Cir. | 1924
The appellant, as owner of six steamships, brought six separate suits in admiralty against the appellees, the
“Vessel sliall be discharged at the rate oí not less than seven thousand five hundred (7,500) bags, of 325 pounds each, or equivalent, per working lay-day. Lay days are not reversible. Demurrage in loading and discharging, except as provided below, shall be payable by the charterer or his agent day by day, on the basis of fortj>-eight (48c) cents U. S. currency, per gross registered tonnage of vessel per day. If vessel is unable to load or discharge at the rates provided, lay days shall be computed on the basis of the vessel’s capacity for loading or discharging. In calculating demurrage a fraction of a day, if demurrage is incurred, shall be computed on the basis of a twenty-four hour day. Bills of lading on approved form shall be signed without prejudice to this charter and subject to this contract as to freight, dead freight, and all other conditions, including loading, discharging, demurrage, and despatch. Vessels shall have an absolute lien on cargo for freight, dead freight, and demurrage, both loading and discharging. * * * The cargo or cargoes shall be delivered and received alongside the vessel where she can load and discharge always safely afloat, and proceed and return always safely afloat, within reach of her tackles.”
In each of the cases a provision of the bill of lading for the cargo was relied on as having the effect of making the consignee liable for demurrage due to the ship. Each of the libels contained allegations to the effect that the ship was fully capable of discharging cargo at the stipulated rate of 7,500 bags of sugar per working day, and that the fact that the cargoes were not discharged at that rate was due to the failure and refusal of the consignees to employ and have on hand sufficient stevedores and equipment to take and handle the cargo at the rate the ship was capable of discharging it. Each of the suits asserted the claim that demurrage was due for the time consumed in discharging over and above the time in which the vessel would have been discharged, if it had been discharged at the rate of 7,500 bags a day. Pursuant to an agreement of the parties the six suits were consolidated. By the decree appealed from the claims asserted by the libels were rejected. The opinion rendered by the District Judge shows that he concluded that under the bills of lading the appellees were liable for whatever demurrage properly accrued in favor of the appellant, but that the demurrage claimed did not accrue.
In view of the conclusion stated below, it may be assumed, without being decided, that if any demurrage accrued in favor of the appellant the appellees were liable therefor. As above shown, the charter party provided that the cargo should be delivered and received alongside of the vessel within reach of its tackles. In behalf of the appellant it is contended that the evidence showed that each of the ships could, and would, have discharged at the agreed rate, if the consignees had received the bags of sugar as fast as they could be swung out over the wharf; that the failure of the ship to discharge at the agreed rate was due to the fault of the consignees in not providing sufficient stevedore services and equipment for the removal of the cargo from the wharf as fast as the ship could discharge it, or fast enough to prevent an undue accumulation of cargo on the wharf; and that the delay in discharging the cargo would have been obviated, if the consignees, instead of employing the ship’s stevedore to remove cargo from the wharf,
The decree is affirmed.