198 F. 142 | D. Or. | 1912
This is a libel to recover demur-rage for detention of the steamer Washington caused by the alleged failure of respondent to receive and take certain cargoes of lumber from the ship’s side so as to enable the libelant to discharge the cargoes within the lay days specified in the charter parties under which the cargoes were carried; also, a small amount, to wit, $28.70, for wages of stevedores working overtime. The lumber was shipped to be delivered under two charter parties of date, respectively, March 12, 1907, and April 24, 1907. Demurrage is claimed for one-half day’s detention of the steamer on each of two voyages made under the first, known as voyages 10 and 11, and, under the second, three days on each of two voyages, known as 12 and 13, being for $1,400 in the aggregate. The charter party of date March 12th provides, among other things:
“Cargo to be furnished to vessel at loading port, and taken from vessel at, port of discharge, by charterers or their agents, furnished in three working days and taken in -five working days.”
That of April 24th :
“Cargo to be furnished to vessel at loading port, by charterers or their agents at the rate of not less than 150 M. feet per working day, and received at port of discharge in five (5) days, Sunday excepted.”
And each of them stipulates:
“Lay days to commence at ports of loading and discharge immediately after notice, given in writing by the captain, that vessel is ready to receive or discharge cargo.
“For each and every day’s detention by default of charterers, the charterers or their agents shall pay to the managing owners, day by day, in gold coin of the United States, demurrage at the rate of $200.00 per day.
*144 “Cargo shall be received within reach of vessel’s tackle (which is construed to mean within 60 feet of vessel’s rail) and delivered as customary with steam schooners.’’
The cargoes were shipped at Rainier, Or., and transported to Oakland and San Francisco, Cal.
On voyage 10 the steamer arrived at the dock April 29, 1907, at 1 a. m. and began discharging at 9 a. m. She finished discharging at noon of May 4th.
On voyage 11 she arrived at the wharf May 16th at 6:50 a. m., began discharging at 9 a. m., and finished on the 22d at noon.
Arrived at the wharf on voyage 12 Juné 3d at 10 p. m., began discharging June 4th at 9 a.- m., and completed her work June 11th at .10:30.
The thirteenth voyage ended at the dock June 24th at 6 a. m., began discharging at 7, and completed July 1st.
■ Much testimony has been adduced; but the principal dispute as to fact relates to the manner of discharging the cargoes by the steamer Washington and the manner of taking the same away from the ship’s tackle by the respondent.
“To be * * * taken from vessel * * * by charterers.’’
. Its literal rendering would seem to require the charterers to unload the vessel; or to take the lumber as found laden on the vessel. Clause 10, however., requires the cargo to be “delivered as customary with steam schooners.” This, taken' in connection with the way in which the parties to the charter parties themselves treated the stipulation, leads to the rendering which requires the charterers to receive the lumber at port of discharge as stipulated in the charter party of April 24th. Such was evidently the intention of the parties when they, entered into the contract, and such is. the reasonable intendment of the contract itself. This requires the vessel to unload the cargo and the charterers to receive the same from the ship’s side or from within reach .of • her tackle.
I am convinced that the winch did work badly, and that this contributed to the delay and detention of the vessel, but that it was not the whole cause of such delay and detention. The lumber was sorted on the wharf, as it came off the vessel, before being carted away to the yard. To allow this to be done with the greatest convenience and dispatch, the lumber was' delivered in three different places on the wharf, which could be done by swinging the hoisting appliance to accommodate it to the place of landing. It is disputed that the lumber was so discharged, but I am impressed that it was. The stevedores at work on the wharf in separating and removing .the lumber were therefore unable to take it away as fast as it could be unloaded, and the greater part of the delay arose by reason thereof. This is also vigorously disputed; but, without going into the evidence, it is sufficient to say it has been shown to my satisfaction that the lumber was allowed to accumulate upon the wharf from time to time, which materially impeded the ship in unloading. Some of the wharves or docks where the unloading was done, afforded limited floor space for the work, and, unless the lumber was cleared away as delivered, the vessel would be delayed for want of room. The respondent, to my mind, did not provide sufficient men to relieve the accumulation as it ought, and must be held responsible for by far the greater part of the delay and detention of the Washington beyond the stipulated lay days. Such delay and detention are properly chargeable to its default under the terms of the charter parties.
But it is insisted that, if any demurrage is properly chargeable to
As to voyage 12, the lay days ran up to June 9th, at 9 a. m. That day being Sunday, it could not be counted as a day of detention, as the lay days had not fully expired. Considering again the participating fault of the libelant in the delay, I will allow one day’s demurrage on this voyage, three days on voyage 13, and nothing for the extra expense claimed as paid laborers for overtime. Thé libelafit is therefore entitled to recover from respondent the sum of $800.