32 Conn. 268 | Conn. | 1864
The objection to the sufficiency of the declaration must be overruled.
Demurrage, in the strict sense of the term, means a sum of money due by express contract for the detention of a vessel in loading or unloading, one or more days beyond the time allowed for that purpose in the charter party. As it is a certain sum, due by force of an express contract, general assumpsit will lie for it.
Damages in the nature of demurrage, are recoverable for detention beyond a reasonable time, iii unloading only, and where there is no express stipulation to pay demurrage. They are in the nature of demurrage because they are for a detention of the vessel, and measured by the day like demur-rage, and are damages because they are recovered for a breach of the implied contract of.'the shipper that he will receive the goods in a reasonable time. Assumpsit will lie for them, because resulting from a breach of contract, but the count must be special, as for unliquidated damages in other cases of breach of an implied contract. The plaintiff can not therefore recover on either of the two first counts of the declaration, for he declares in both for a certain sum as a debt. The third count is special for damages, and sets forth every material fact which the plaintiff is bound to prove in order to recover, or the defendant to answer in order to defend. But the plaintiff has omitted to allege the implied promise to receive the coal in a reasonable time, the breach of which is the foundation of the action. The defect in -that count is not, as the defendants suppose, an omission to allege a promise to
The second objection must also be overruled. It has been holden in England that the master of a vessel, as such, can not recover damages in the nature of demurrage. Brouncker v. Scott, 4 Taunton, 1. The correctness of that decision has been questioned. In Evans v. Forster, 1 Barn. & Ad., 118, the decision was followed by Lord Tenterden “ as the safest and wisest course,” and such is the law there. In this country the law is not settled, nor is it necessary to decide the question in this case. The plaintiff ran this vessel on shares, paid all expenses and had entire control of her course of employment, and made all contracts in respect to her employment in his own name and on his own behalf. He was pro hac vice owner, and can maintain his action as such.
The defendants insist, in the third place, that the detention was not their fault. It is not pretended that it was the fault of the plaintiff. He was there ready and anxious to discharge, and the defendants knew it. The railroad company were not ready to receive, and the defendants say that the company were not their agents. But in this too they are wrong. In all cases of the transportation of cargoes by water, when there is no specific agreement between the shipper and carrier in respect to the particular wharf or spot at the port, where the cargo should be landed, or any known custom of the port, the shippers or their agents must be there ready to receive it on notice of t.he arrival of the vessel. In this case there was no such custom, and no specific agreement. It is found that the hill of lading was the only contract made between the parties in respect to the transportation of the coal and that is silent on that point. It was then the duty of the defendants to be there or have an agent there to receive it or find some convenient spot where it could be deposited in a reasonable time, and
Whether it would be well or not that shippers should guard against the consequences resulting from the unreasonable delay of intermediate carriers in receiving goods, and how they could do it, we need not inquire. It is obvious that if
The defendants further insist that if the railroad company were their agents, still they are not liable, for that the coal was in fact received in a reasonable time, and there was no breach of their implied contract. And this point is well taken and we must sustain it, though it may operate hardly iipon the plaintiff.
There is an apparent equity in the case in favor of the plaintiff. Yessels are expensive—it is expensive to man and run them—the wear and tear is considerable—the coastwise business is one of hardship and exposure, and it is confined to a few months of the year—the remuneration is moderate and a considerable delay in port is ruinous. The delay in this particular case occasioned a loss exceeding, it may be, the earnings of the voyage or trip. In such a case the excuse for the delay should be satisfactory, and should be clearly shown, although it furnishes no reason for shifting the plaintiffs hardship upon the defendants if the latter were not in fault. The excuse in this case is, that the railroad company had facilities for the discharge of seven vessels at the same time, and that they were sufficient to meet the wants of the public in all ordinary times, but that there was an unusual accumulation of vessels at this time,, and the plaintiff was discharged in turn.
It was intimated on the argument that the company required the vessels to be unloaded into their cars, and that there was vacant dock room where, in such an emergency, a part of the detained vessels might also have deposited their cargoes, involving additional expense to the company, but collectible from the owners, and far less than that entailed by the delay upon the plaintiff and others, and that it was the duty of the company to permit them under such circumstances so to unload. But no facts are found which raise that question, and we are not at liberty to consider it.
The superior court must be advised to render judgment for the plaintiff for the amount of his freight merely, and to reject the claim for damages in the nature of demurrage.
In this opinion the other judges concurred.