Yone Suzuki v. Central Argentine Ry. Co., 275 F. 54

Yone Suzuki v. Central Argentine Ry. Co.

275 F. 54 | S.D.N.Y. | 1921

LEARNED HAND, District Judge

(after stating the_ facts as above). [1] The liability for demurrage comes first, and this may be divided into two parts, demurrage at the port of loading and demur-rage, and charges at the port of discharge. As to the latter, the authorities are so numerous and uncontradicted that nothing more need he done than cite them, Neilsen v. Jesup (D. C.) 30 Fed. 138; Gates v. Ryan (D. C.) 37 Fed. 154; Sutton v. Housatonic (D. C.) 45 Fed. 507; Taylor v. Fall River Iron Works (D. C.) 124 Fed. 826; Crowley v. Hurd (D. C.) 172 Fed. 498; Vane v. A. M. Wood & Co. (D. C.) 231 Fed. 353; Union Pac. R. R. Co. v. American Smelting & Refining Co., 202 Fed. 720, 121 C. C. A. 182. As I said in Vane v. A. M. Wood_& Co., supra, the liability of the consignee appears to be regarded as arising from an implied contract: the lien being surrendered upon a promise to pay the charges. The promise should be commensurate with the lien, as was expressly held in White & Co. v. Furness Withey & Co. [1895] A. C. 40. It is generally said that the surrender of the lien and acceptance of the goods are only prima facie evidence of a contract, which may be rebutted by other circumstances (Frontier S. S. Co. v. Central Coal Co., 234 Fed. 30, 148 C. C. A. 46 [C. C. A. 7th]), and that may be so. In any case the facts are here unrebutted and the liability clear.

[2] It has been sometimes supposed that the demurrage at the port of loading is on a different basis, and Mr. Carver, in his book (section 637), seems to recognize such a distinction. I do not, however, think that the authorities require it, and in a case like that at bar I cannot see *56any ground for it in principle. In Smith v. Sieveking, 4 E. & B. 945, 5 E. & B. 589, the language of the bill of lading was interpreted as binding the ship only for the payment of freight, and the case went off on that point in both counis. Baron Parke said that the language of a bill of lading must be very clear to indicate the intent to hold the goods for delays at the port of loading not in any way due to defaults of the consignee. Yet the case stands for no more than a rule of interpretation. Moreover, in Gray v. Carr, L. R. 6 Q. B. 522, the lien was extended to demurrage under the charter party at port of loading, though damages and dead freight were not thought to be clearly enough included by the words “he or they paying freight and all other conditions * * * as per aforesaid charter party.” The question is therefore of the extent of the ship’s lien, and the lien depends altogether upon the language of the bill of lading and the charter party.

In the case at bar the- language of the bill of lading was:

“He or they paying freight for the same as per charter party, dated February 16, 1920, all the terms and exceptions contained in which chárter are herewith incorporated.”

There is no doubt, I think, that the word '“terms” is broad enough to include any lien created by section 9 of the bill of lading. If so, the case turns upon the meaning of that section, which reads:

“Steamer to have a lien for all freight, dead freight and demurrage.”

In Gray v. Carr, supra, the contest was over the scope of the word “demurrage,” the charter party having fixed a period of 10 days after the lay days, as demurrage at a fixed rate. It was held not to include damages for “detention” after that period. But in the case at bar the charter party reads not so, but makes the demurrage rate apply indefinitely after -the lay days expire, which are themselves to be calculated on a minimum speed of loading. It is true that in Gray v. Carr, supra, the language was such as made the word “demurrage” necessarily include only delays at the port of loading; but I think it equally clear here that the charter party here meant to include demurrage at either port. If so, the ship had a lien on the cargo for demurrage proper under this charter party. If the premise is commensurate with the lien (White & Co. v. Furness Withey & Co., supra; Vane v. Wood, supra), then it follows that the respondent is liable for all demurrage and the exceptions are well taken.

[3] As to the liability for freight, the case is different. I do not agree with the libelants that the deduction of freight under a false charge for dispatch money changed those charges into charges for demurrage. The charterer had wrongfully refused to pay the actual freight due, but it still remained freight money. The same considerations would apply to this unpaid freight as to the demurrage, were it not that the bill of lading recited that the freight was prepaid. That appears to me a clear estoppel, for a master who uttered such a bill of lading would be guilty of a fraud upon the consignee and innocent holder of a bill of lading, if he held the goods for freight. Besides, the charter party provides, in section 8, that the bill of lading shall be signed. *57“at not less than the charter rate.” Signing the bill of lading was a clear assertion by the master that the entire charter hire had been paid, since there was but one bill of lading for each cargo. Obviously the ship cannot permit the consignee to receive the cargo on the faith of such a declaration, and afterwards deny it and attempt to set up an obligation for a part of the hire. Therefore the exceptions to the twenty-second and twenty-third articles of the libel are overruled.