134 F. 991 | D. Wash. | 1905
(after stating the facts). By the terms of the charter party the libelants were obligated to carry a cargo of coal to Nome, and discharge it there according to the custom of the port, and the conditions there make it necessary to work during all of the 24 hours of each day, when practicable. From necessity, it is the practice there to work at all hours when possible. This was understood by the parties to the contract when it was made, and the libelants’ agent instructed the captain of the Wyneric to employ a sufficient number of men to discharge cargo at all hours required by the consignee. The charter party also required the ship to deliver the cargo at the rate of 500 tons each “weather working day,” except Sundays and holidays, and required the consignee to receive the same at the ship’s tackle; and I find that neither party had capacity to handle that amount of coal in less than a day of 24 hours. The charter party also provides for demurrage, at a specified rate, to be paid by the charterer, for each calendar day, in case of detention of the ship by the charterer after the expiration of the time required to discharge the cargo at the rate of 500> tons per weather working day.
I find from the evidence that during the time the vessel was discharging there were days on which cargo was discharged, when, by change of weather and conditions of the sea, it was impossible to work continuously during all of the 24 hours; and it is my opinion that it will be unfair, and not in accordance with a reasonable construction of the contract, to hold either that such days should be entirely omitted from the count, or credited to the ship as full weather working days, and, considering all the provisions of the contract, and the facts proved as to conditions prevailing and the custom of the port, each of such days should be estimated as a fractional day.
The steamer arrived at Nome on Saturday, the 8th day of August, 1903, and commenced discharging cargo on Sunday, the 9th, and finally completed full delivery on Saturday, September 5th, during which time there were interruptions by wind and waves and surf rolling on the beach, and a strike of the respondent’s employés, which continued three days, so as to impede the work of receiving cargo, although it did not cause a total suspension of work. The ship delivered coal to the lighters furnished by the respondent during the hours of the night and on Sundays, when the weather permitted, to the extent of the capacity of the crew. But there was no continuous delivery of cargo during the 24 hours of any day, and on some occasions the crew stopped work at night when lighters were waiting, for the reason that the men had worked their full time, and the libelants failed to fully live up to their contract by employing a sufficient number of men for relief shifts. The evidence also shows that time was lost by failure of the respondent to furnish lighters to receive coal at times when the ship was ready to. make delivery.
