142 F. 402 | 1st Cir. | 1905
Lead Opinion
These appeals relate to so-called demurrages. The W. K. Niver Coal Company, a corporation organized in Pennsylvania, was the owner of the cargoes aboard the several steamships concerned. The demurrages occurred in the harbor of Boston. The steamships were chartered at Cardiff, Wales, in October and November, 1902, during the well-known coal strike in Pennsylvania, to load Welsh anthracite coal for Boston, and there discharge it. Demurrage being demanded in behalf of each of the vessels, and the charters containing the usual cesser clause, the several cargoes became subject to these demands; and, as the coal was owned by the W. K. Niver Coal Company, that corporation claimed it, released it on admiralty stipulations, and answered the several libels now before us. In each case the decree of the District Court was in favor of the libelant, allowing demurrage, and the W. K. Niver Coal Company appealed.
The several charters were each entitled as follows: “Chamber of Shipping” Welsh Coal Charter, 1896.” Each was apparently of a
We will commence with the Roath, chartered to load not exceeding 6,000 tons nor less than 5,800. She did, in fact, load 6,007 tons. No question is made in the assignment of errors as to the amount of demurrage allowed her; and the only issue is whether, under the circumstances, her cargo is liable for any. Her charter provided that she was to deliver her cargo alongside any wharf or vessel or craft as ordered, where she could safely deliver, always afloat; or she might be required to deliver a part at a wharf, and a part at other wharves, and a part into a vessel or other craft, or into other vessels or other crafts. The charter also provided that the cargo should be taken from alongside by the consignee at the average rate of 750 tons per day, “weather permitting, Sundays and holidays excepted,” and that, if longer detained, the consignees should pay demurrage. This followed :
“Time to commence when steamer is ready to unload, and written notice given,- whether in berth or not. In case of strikes, lockouts, civil commotions, or any other causes or accidents beyond the control of the consignees, which prevents or delays the discharging, such time is not to count, unless the steamer is already on demurrage.”
The particular expressions, the construction of which is important, are the following: Eirst, “whether in berth or not,” and second, “in case of strikes,” “or any other' causes or accidents beyond the control of the consignees.” The W. K. Niver Coal Company claims that the words “whether in berth or not” do not reach this case; and it further claims that, if its position in that particular is not correct, it was relieved under the circumstances by strikes, or, certainly, by other causes beyond control. Its answer alleges that, while the Roath was in the port of Boston, the harbor was filled with an unusual and extraordinary amount of shipping; that shortly before her arrival a widespread and general strike had existed throughout the anthracite coal regions of the United States, and shipments of coal by rail from those regions to New England had practically ceased; that in consequence thereof, and as the result of the strike, large quantities of coal, shortly before
The charter of the Roath was effected on October 1, 1902, by Cory Bros., Limited, described by the W. K. Niver Coal Company as its agent ; she arrived at Boston on November 18th; written notice of her arrival was delivered to the consignee the same day at noon; the consignee thereupon ordered the vessel to Mystic Wharf; the agent of the steamer reported at Mystic Wharf on November 19th, when there were already in line ahead of her the following vessels, with the following tonnage: Ruth, 965 tons; Ropes, 485 tons; O’Teele, 1,672 tons; Manar, 1,185 tons; Nord Havet, 3,870 tons; Ursula Bright, 4,380 tons; Inch Keith, 4,733 tons; Chatfield, 3,275 tons; Lawrence,
According to the primitive rule, a charterer who agrees to furnish a cargo for a vessel and to discharge it is bound to have the cargo ready when the vessel is ready, and to receive the cargo immediately on its arrival at its port of destination. This primitive rule applies to all contracts concerning the handling of merchandise, alike of sale, transportation, or bailment of any kind; but, within the last century, in view, partly, of the necessities of coal ports, and of ports for shipment and receipt of ores and grain, and the modern facilities peculiarly provided at terminals for handling the immense masses of such merchandise now required to be handled, this rule has somewhat yielded, as is fully explained in Scrutton’s Charter Parties and Bills of Lading (5th Ed., 1904), 17 to 22. This has gone so far that this author says in effect, at pages 259, 260, and 261, that a mere obligation to load or unload imports a stipulation that the work shall be done according to the settled and established practice of the port. Mr. Scrutton says, in effect, at page 260, that it has needed a long series of decisions to accomplish this proposition. The same series of decisions has also established the further proposition that, aside from any peculiar custom, the consignee has a right, to a certain extent to select a particular wharf or berth for discharge of the vessel, although that berth or wharf may be occupied when the vessel is ready to unload, for that reason delaying her; and this not only under charter parties like those now before us containing the words “as ordered,” but also where neither these words nor an equivalent expression are found. This is not only the settled law in England, but it is the apparent law in the United States. Accordingly, alike with regard to the port of lading and the port of discharge, large margins are given charterers, which have resulted in long detentions to vessels, extremely burdensome, but for which compensation has been refused. As these appeals do not require us to determine positively the modern application of the rules to which we refer, or to fix accurately their various limitations, wq will only refer in a general way to the decisions of this court, and to a single English decision which was practically contemporaneous with the peculiar form of charter before us.
Randall v. Sprague, 74 Fed. 247, 21 C. C. A. 334, decided by us on May 1, 1896, involved a claim for demurrage pending the loading of coal at Baltimore, wherein, at page 248, 74 Fed. (21 C. C. A. 334), we applied the modern rule that, by the usage of the port, coal was not stored at Baltimore, but was to be loaded' in turn from cars coming from the mines. Under the primitive rule to which we have referred, the cargo should have been ready when' the vessel arrived
We come next to Evans v. Blair, 114 Fed. 616, 52 C. C. A. 396, decided by us on March 4, 1903. This was a case of discharging a cargo of coal, wherein the bill of lading provided that the vessel should have precedence over all vessels arriving, or giving notice, after her arrival. The Maine Central Railroad Company, the consignee, had three wharves, for discharging coal at Portland, which was the port of discharge. In this particular case, the consignee was held liable for demurrage, although the opinion points out, at pages 618 and 619, 114 Fed. (53 C. C. A. 396), and elsewhere, that the Maine Central Railroad Company had a certain privilege of determining at which of its wharves the vessel should be discharged. As the record did not show the circumstances under which'it exercised its option as to the place of discharge, the opinion, at page 619, 114 Fed. (53 C. C. A. 396), quotes with reference to this option the language of Lord Esher, that it is “a power given to the charterer for business reasons”; and it elaborates the fact that this option, given by the law itself, can be exercised only under conditions which are just and reasonable. Its general drift is to the effect that the law is settled that, if the Maine Central Railroad Company had supported its case by an exhibition of facts showing that the discretion used was just and reasonable, the vessel might have been detained for a long time after some vessels subsequently arriving had been discharged, notwithstanding the apparently express letter of the bill of lading to the contrary.
The pith of the result of this class of cases is particularly shown by Sanders v. Jenkins (1897) 1 Q. B. 93, decided on November 6, 1896. This was.a striking decision, possibly attracting especial attention, because, while in the prior reported decisions of the English courts the charters contained the words “as ordered,” thus on their face in literal terms giving the consignee a certain option with reference to the selection of the place of discharge, that in Sanders v. Jenkins contained no such expression. It is true that that case went
Apparently, therefore, the law is as claimed by the W. K. Niver Coal Company, that the former customary words in charters, namely, “ready to unload or discharge,” “and written notice given," have no effect except from the time the vessel reaches the precise berth where she is ordered by the consignee to discharge, subject, of course, to exceptions where some special fault rests on him. It is sufficient for us that, in the condition of the authorities, vessels were embarrassed by well-supported claims that they might be detained indefinitely to await their turns, and without compensation. It cannot be doubted that the insertion of the words “whether in berth or not” was intended to relieve vessel owners from this embarrassment and the indefinite losses' arising therefrom; and, independently of this, as their clear effect, naturally read, would accomplish that beneficial result, they must be taken accordingly. The W. K. Niver Coal Company looks about for a context and for circumstances to enable it to call on the court to modify these words;.but, as they are perfectly clear, they are, as we have said, to be read, and not construed. We must reject their supposed intents suggested by the W. K. Niver Coal Company. None are supported by anything except theories, and each requires the incorporation of additional words before it can be sustained.
As to this particular topic, the case has been. pressed on us as though it involved a question whether the consignee had the usual margin with reference to selecting the place of discharge; and it has been urged that, inasmuch as the cases establish that the consignee has that margin, the words “whether in berth or not” cannot receive any construction which interferes therewith. But no question of that nature arises. In Harris v. Jacobs, 15 Q. B. D. 247, decided by the Court of Appeal in 1885, the charter under discussion undertook to afford relief for the vessel by inserting the words “ready quay,” in that it provided that she should proceed for her discharge “to London or Tyne dock to such ready quay berth as ordered by the charterers.” As under that expression the vessel might, perhaps, refuse to proceed to any berth except a “ready” one, the usual option of the charterer might be interfered with; but the critical expression at bar affects only the demurrage, and not the place of discharge. In this respect it is precisely the same in its nature as though the charter stipulated that lay days should count from the time the vessel cast anchor, or, as the parties might have agreed, from the time she arrived at quarantine. We find, therefore, that the lay days com
The question remains whether the W. K. Niver Coal Company can bring itself within the exceptions relating to strikes or other causes or accidents beyond its control. We will first deal with strikes. It might be expected that we should find as to this some authoritative decisions or expressions of some well-considered text-books; but, so far as we have been able to perceive all those which have been cited to us, and those which we have found, melt away on close examination. The question, of course, is one of proximate or remote cause. That the strike referred to here was a causa sine qua non there can be no doubt, in fact, except for it, the steamers before us would not have been chartered or been in the port of Boston. But several other events came much nearer to the delays in discharging, which, in the eyes of the law, render the strike a remote cause, and mark it as merely a causa sine qua non and not a causa causans.
The W. K. Niver Coal Company relies on the expression following' this same strike which closes the opinion in Davis v. Columbia Coal Mining Company, 170 Mass. 391, 397, 49 N. E. 629. There, a sale of coal to arrive from the mines by rail was subject to the exception of its loss en route and strikes. The coal was taken possession of by the Pennsylvania Railroad Company in transit, and used by it. Nobody would doubt that this was clearly within the exception of loss en route, as said in the opinion at page 396, 170 Mass. (49 N. E. 629). That was sufficient to end the case; but, at page 397, 170 Mass. (49 N. E. 629), it was said that the exception was “broad enough to include any strike having a legitimate tendency to prevent the execution of the contract.” The opinion referred to Milliken v. Keppler, 4 App. Div. 42, 38 N. Y. Supp. 738, and Delaware Railroad v. Bowns, 58 N. Y. 573. The observations in reference to strikes were entirely unnecessary, and can be regarded as mere dicta. However, on a topic where there is an illimitable number of decisions, the federal courts are not to be controlled, contrary to the most approved authorities, by the expression thus relied on by the claimant, with reference to a charter made, not in Massachusetts, but abroad.
Returning, therefore, as we must, to the fundamental rules of law relating to questions of proximate and remote cause, we have already said that the strike was, at the most, only a causa sine qua non of the difficulties which met the owners of the cargoes of these steamers after they arrived at the port of Boston. Almost without exception, the intervention of human agency, acting voluntarily, severs in law the connection between the supposed cause and what follows it. In this case there were several vital interpositions. First of all, the determination to ship Welsh coal was of such a character. Then the chartering of vessels, either by one shipper or by numerous shippers, so as to bring them into the port of Boston in a bunch, was another. Then the selection of docks and piers at Boston belonging to railroad corporations for the special purpose of reaching the vendees of the shippers of the coal was still another; and the whole from beginning to
“It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore, it contenteth itself with the immediate ■cause, and judgeth of acts by that, without looking to any further degree.” Brown’s Legal Maxims, *202.
In Insurance Company v. Tweed, 7 Wall. 44, 51, 52, 19 L. Ed. 65, an explosion in a building which caused a fire therein, and which fire spread to another building on the opposite side of the street, was held to be the cause of the latter fire within the meaning of an insurance policy. In that case there was no intervening human agency, .but an unbroken progress of events arising out of what might be expected from the continuous operation of natural laws. Mr. Justice Miller, speaking in behalf of the court, says it would be an unprofitable labor to enter into an examination of the authorities on this topic. He continues as follows:
“One of the most valuable of the criteria furnished us by these authorities is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened, •of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote.”
This expression of Mr. Justice Miller has been repeated by the Supreme Court several times, the last in The G. R. Booth, 171 U. S. 450, 455, 19 Sup. Ct. 9, 43 L. Ed. 234, so that it must be conceded that it has the full support of that tribunal. Even where there has been no intervention of a free human agency, the Supreme Court sometimes holds that the first of two events, between which has occurred a long series of other events, cannot be regarded as a proximate •cause. In Scheffer v. Railroad Company, 105 U. S. 249, 252, 26 L. Ed. 1070, it appeared that Scheffer was injured in a railway accident, .and that he thereby became disordered in mind and body, and, some eight months thereafterward, committed suicide. The court held that his own act, suicide, was the proximate cause of his death, and that his representatives were not entitled to recover. At page 252, 105 U. S. (26 L. Ed. 1070), the opinion, rendered by Mr. Justice Miller in behalf of the court, says:
“The argument is pot sound which seeks to trace this immediate cause of the death through the previous stages of mental aberration, physical suffering, and eight months’ disease and medical treatment, to the original accident •on the railroad. Such a course of possible or even logical argument would lead back to that ‘great first cause least understood,’ in which the train of all causation ends.”
Scheffer v. Railroad Company was cited and commented on in Washington Railroad Company v. Hickey, 166 U. S. 521, 528, 529, 530, 17 Sup. Ct. 661, 41 L. Ed. 1101. Therefore, we are compelled to conclude that in no sense will the rules of law which we are required to administer regard the exception of the strike named in the charters applicable on the records now before us.
The same course of reasoning is to be applied to all the steamers involved in the appeals before us. Each of them had her own rights as against the W. K. Niver Coal Company. They were not under a joint contract, but each was under a separate contract; so that each was entitled to assert her rights.independently of the others, although the consignee had so involved itself by its several charters, or by charters on its account, that it was unable to do its duty by any one of thqm. A condition of affairs brought about by a contractor on the one part does not relieve him from his obligation to each of the contracting parties on the other part, acting severally, because the condition resulted in embarrassing all of them at the same time. To consent to any other rule would permit a contractor to relieve himself from his contracts in proportion to the number of parties he might involve in his own embarrassment by virtue of his own separate voluntary acts.
But assuming all the conditions to be as claimed by the W. K. Niver Coal Company, it might well be questioned whether they' come within the exception in this charter party, “other causes or accidents beyond the charterer’s control.” In other words, in view of the expression “whether in berth or not,” was this vessel required to take her turn? The Arbitration, 1 Q. B. 261 (1898), has been interpreted and annotated by Mr. Scrutton in his Charter Parties and Bills of Eading (5th Ed., Í894; page 183, note g). He holds it to be one result of that case that the words “other causes beyond the charterer’s control” are to be construed ejusdem generis with what precedes them. Mr. Scrutton also points out that, as the result of The Arbitration, this expression in any charter party cannot go so far as to relieve the charterer merely because the vessel is obliged to wait her turn. This proposition may have enlarged force on the char
The W. K. Niver Coal Company attempts a minor objection to our conclusions on the ground that the Roath was not, in a strict sense of the expression, ready to unload within the terms of the charter. When she gave notice of her arrival she had been entered at the Custom House, her winches were ready, and her steam was up; but it is said that it does not appear whether the hatches were off or the derricks rigged. The common knowledge of the ordinary practices in port with reference to vessels arriving compels us to regard this objection as finical.
The appeal as to the Roath disposes of the appeals as to the Ursula Bright and the Cheronea; the circumstances with regard to the three ■steamers being practically the same. This leaves only the Banana, which, as we have said, discharged entirely into lighters. Her lay days commenced on the first day of December, and, on the principles which we have applied to the other steamers, they should have ended at the close of December 5th. Every claim as to her is disposed of by what we have already said, except that it is alleged in behalf ■of the W. K. Niver Coal Company that there was a snowstorm on the 5th entirely preventing discharging that day, and also a condition of weather on the 9th which necessarily shortened the working hours. The steamer was, perhaps, not entitled to demurrage for the 5th; but, in view of the expression in her charter which we have already ■cited, “unless the steamer is already on demurrage,” no rebate can be made by us for the 9th. Indeed, on general rules, the same would probably be true as to any day after the vessel’s lay days had once •expired. The fundamental difficulty, however, is that the record fails to show definitely how the District Court computed demurrage in favor of the Banana, so that we are unable to revise the details thereof.
It is assigned as error that interest was allowed by the District Court on the several demurrages. This allowance is so just, and so clearly within the federal rules in regard to the discretion which the admiralty courts, whether of the first instance or on appeal, are authorized to exercise in this particular, that we do not deem it necessary to make further remarks in regard thereto.
The decree of the District Court is affirmed, with interest; and the appellee recovers its costs of appeal.
Concurrence Opinion
I concur in the result. I reach this conclusion with considerable hesitation, and I base my concurrence solely upon the ground that, at the time the contract was made, congestion and delay at the port of discharge must, under the circumstances, have been contemplated by the parties as something reasonably to be expected and likely to occur, and that notwithstanding this the consignees entered into a stipulation for demurrage, and, further, upon the idea that the consignees in an active and substantial way participated in the congestion, and therefore contributed to the cause which occasioned the delay. In other words, the consignees helped to create a situation which they claim should operate to relieve them from their demurrage stipulation.
The consignees having the right to designate the place of discharge, and having designated a certain wharf, I seriously question whether it should be held that they ought, in the emergency, to have resorted to the alternative of receiving the cargoes in lighters, upon barges, or at other wharves where the coal was not wanted. See Crawford v. Wilson (1895) 1 Com. Cases, 154, and the same case on appeal, at page 277 of the same volume; the Milverton S. S. Co. v. Cape Town Gas Co. (1897) 2 Com. Cases, 281; Aktieselskabet Argentina v. Von Laer, 19 T. L. R. 151; Carver’s Carriage by Sea (3d Ed.) p. 297, § 258a.
The strike being remote from the immediate cause of delay, that of the congested harbor, to which intervening and independent causes had contributed, relief from the consignees’ stipulation for demur-rage would come, if at all, under the clause which renders the demurrage stipulation inoperative, when the delay results from “any other causes or accidents beyond the control of the consignees.” Under this sweeping form of expression, and in view of its context, I doubt very much whether an efficient cause of delay like the one in question would be excluded from its operation by the doctrine of ejusdem generis.
In this case the delay resulted from a very unusual, if not an unprecedented, congestion of Boston Harbor, and, speaking generally, I should think the congestion was sufficiently potential as a cause of delay to relieve the consignees from demurrage under the exemption clause to which I have referred. But, when the charter party was executed, both parties knew of the strike and of the imperative necessity and demand for unusual and extraordinary shipments of .foreign and other coal, and must have contemplated possible, if not probable, congestion and consequent delay at the harbor of discharge. This being so, the parties must have contracted with reference to-such delay as a possible or probable incident of the situation. It would thus, upon the whole, at least seem probable that the parties, at the time the contract was made, could not have intended such contemplated cause of possible or probable delay as one which should
Moreover, at the time in question, the consignees had several heavy-draft, coal-laden vessels in the harbor, and two or more in the immediate field of the congestion which was causing the delay. As a consequence, the consignees were actively contributing, in a measurable degree, to the creation of a situation which they set up as a ground which should relieve them from their demurrage stipulation Being thus in the rush which created the congestion, they are not in a position to set it up in their own behalf as a cause relieving them from demurrage under the exemption clause to which I have referred.