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A treatise on the law of carriers (Volume 4) online

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of lading before sailing."*^'

Provision for Demurrage Lien on Cargo. — A charterer is not exempted
from the payment of demurrage for which he is made liable by the terms of the
charter party because of a provision of the bill of lading giving a lien on the cargo
for freight and demurrage. ^*^

Provision for Payment on Default of Charterer. — Under a charter provid-
ing for payment of demurrage "for each and every day's detention by default
of charterer" it was held that by the use of the word "default" was meant fail-
ure to perform some duty imposed by the contract.^^

Provision for Continuous Discharge. — A provision of a bill of lading that
the cargo shall be "received by the consignee immediately the vessel is ready to
discharge, and continuously at all such hours as the customhouse or port author-

46. Construed in connection with tele-
gram. — Philiiipine Trading Co. v. United
States (U. _S.), 47 Ct. CI. 32S.

47. Provision as to precedence in dis-
charging freight. — Evans ' v. Blair, 114
Fed. G16, 52 C. C. A. 39G.

Under a provision of a bill of lading
for a cargo consigned to a railroad com-
pany, giving the vessel the right to be
discharged in her turn, the fact that such
cargo is owned by the company, while
that of another vessel arriving later is
merely consigned to its care, to be
shipped over its road, does not entitle
tlie company to give the latter preference
in discharging. Evans v. Blair, 114 Fed.
Glfi. 52 C. C. A. 396.

Customs of port. — ^The provision of a
l)i]l of lading tliat, after arrival and no-
tice to the consignee and the expiration
of 24 hours, the vessel shall have prece-
dence in discharging over all vessels ar-
riving or giving notice after her arrival,
requires such vessel to be given her turn
subject to whatever customs or necessi-
ties exist at the port of discharge and
which may fairly be presumed to have
been within the contemplation of the
parties. Ross v. Cargo of 3,408 Tons of
Pocahontas Coal, 165 Fed. 722.

Precedence over transatlantic vessel. —
Schooners which arrived at a port for
discharge of coal cargoes under bills of
lading providing that they should have

precedence in discharging over all ves-
sels arriving or giving notice after their
arrival must be held to have contracted
with reference to the facilities for coal
discharging at that port, and are not en-
titled to claim a violation of contract be-
cause steamers of regular transatlantic
lines arriving after them were, in accord-
ance with contracts and long custom,
given precedence in discharging at the
company's wharves which were not used
as discharging places for coal but for
general cargoes. They were, however,
entitled to precedence, over after-arriving
vessels carrying coal cargoes, to dis-
charge at any wharf of the company used
for discharging coal, so long as. they
were not assigned to any particular berth,
and, after such assignment, to precedence
over any after-arriving vessel at such
berth. Ross v. Cargo of 3,408 Tons of
Pocahontas Coal, 165 Fed. 722.

48. Provision for no demurrage. — ^Phil-
ippine Trading Co. v. United States (U.
S.), 47 Ct. CI. 328.

49. Contract impossible of perform-
ance. — Oans 7!. Atichincloss, 166 h'cd. 991.

50. Provision for demurrage lien on
cargo. — Davis v. Smokeless Fuel Co., 196
Fed. 753, 116 C. C. A. 381, affirming de-
cree, 1S2 Fed. 1004.

51. Provision for payment on default
of charterer. — Washington Marine Co. v.
]>^aiiiier Mill, etc., Co., 198 Fed. 142.

§§ 4357-4358 carriers. 395Z

ities may give permission for the ship to work," means only that the discharge
shall be reasonably continuous, considering the time, place, and circumstances,
the nature of the cargo, the situation of the vessel, and prevailing conditions


Constrtiction by Parties.— Where, after a vessel was loaded, upon a question
of demurrage arising, the charterer's agent, under authority from his principal
to indorse upon the bills of lading "when lay days commence and when vessel
loaded," indorsed such dates, which were accepted by the master, such action
amounted to a practical construction of the charter party by the parties, which
was entitled to great, if not controlling, influence. "'=^

Provision for Dispatch in Discharging.— A provision of a charter party
for "dispatch for discharging" is to be construed with reference to the custom of
the port where the discharge is made, which is fixed in large measure by the
facilities at such port for discharging the kind of cargo carried.^^

§ 4358. Right of Vessel to Charge in General.— Where Notice of Re-
fusal to Pay Demurrage Given. — A vessel is presumed to have accepted the
risks of delay wdiere the charterer refused to pay demurrage and gave notice
that he would not keep the vessel if demurrage were charged.^^'^

Demurrage Not Claimed in Monthly Statements.— Where libelant fur-
nished barges for the use of respondent's testator in transporting coal under a
general arrangement by which bills for such service were presented and paid
monthly, a claim for demurrage on account of the detention of a barge will not
be allowed when not presented until after the death of the testator and more than
a year after the service was rendered and the bill therefor paid, in which no
such claim was made, although such claim was warranted by the terms of the
bill of lading. s^'

Necessity for Provision in Bill of Lading. — Compensation may be recov-
ered by the owner of a vessel for unreasonable detention thereof, though the
bill of lading contain no demurrage clause.^"^ Where a charter party or bill of

52. Provision for continuous discharge. vessels on such terms. Thereafter the

United States Shipping Co. v. United business continued as before, monthly

States, 146 Fed. 914. hihs being presented and paid for the

Under a bill of lading providing that hire of the barges, which contained no

the consignee should receive the goods charges for demurrage, nor were any

"immediately the vessel is ready to dis- such charges made on libelant's books

charge and continuously at all such hours until after decedent's death, when a large

as the custom house or port authorities sum was charged against him on that

may give permission," the shipper was account. Held, that on such evidence,

liable for any delay in discharging, due and in the absence of clear evidence to

to its failure to receive the cargo from the contrary, libelant must be presumed

any cause except the fault of the ship- to have accepted the risk of such delays

owner. Tweedie Trading Co. v. Strong, as an incident of the business, and that

etc., Co., 195 Fed. 929, reversing decree he was not entitled to recover demurrage

157' Fed. 304. therefor. Decree, Hagan v. Tucker, 113

53. Construction by parties. — Percy v. Fed. 546, affirmed in 118 Fed. 731, 55 C.
Union Sulpliur Co., 173 Fed. 534. C. A. 521. .

54. Provision for dispatch in discharg- 56. Demurrage not claimed in monthly
ing. The Cargo, 122 Fed. 881. statements. — Hagan v. Tucker, 112 Fed.

b'5. Right of vessel to charge in gen- 546, affirmed in 118 Fed. 731, 55 C. C.

eral. — Libelant furnished a number of A. 521. _ _
barges for use as lighters by respondent's • 57. Necessity for provision in bUl ot

testator in his coal business in New York lading.— Jameson v. Sweeney, 61 N. Y. b.

City and harbor. Such use necessarily 494, 29 Misc. Rep. 584.

involved more or less delay of the barges That no provision was made in rela-
while waiting for the sale or the trans- tion to demurrage in a contract of af-
fer of their cargoes to steamships, which freightment does not show that no de-
was a part of "defendant's business. A murrage was to be charged, but the
suggestion by libelant that he should ex- rights of the parties are to be determined
pect demurrage for such delays was met by the general rule as to reasonable dis-
by a prompt denial of liability, and notice patch. Price v. Morse Ironworks, etc.,.
by decedent that he would not keep the Co., 120 Fed. 445.

3953 CARRIAGE OF PROPERTY. §§ 4358-4360'

lading contains no provision with respect to the lay days for discharging, an
implied obligation arises on the part of the charterer or consignee to give the
vessel reasonable dispatch, determined by the circumstances then existing; but in
such case he is not an insurer against delay, nor liable because of delay caused
by circumstances beyond his control, such as the presence of another vessel
discharging at the dock where delivery is to be made, and which is the only one
available, or by a temporary derangement of the dock machinery used for dis-
charging, which he could neither anticipate nor prevent.-''^

Estoppel to Collect Demurrage. — Where a bill of lading expressly gave the
shipowner the right to hold the shipper for any charge under the contract, the
fact that such owner did not enforce its right, also given thereby, to collect de-
murrage for detention in discharging from the consignee, or by enforcing its
lien on the cargo at the port of discharge, did not estop it from collecting such
demurrage from the shipper, especially where the shipper consigned the cargo to
itself, and, although it indorsed the bill of lading to another, remained the owner
until actual delivery. °^

§ 4359. Delay Fault of Vessel or Owner. — A boat owner is not entitled to
demurrage for the time during which he refused to continue unloading because
of the pendency of negotiations for security for the freight, where he might
have discharged, and preserved his lien on the cargo by refusing to deliver.*5^

Failure to Arrive on Schedule Time. — Libelants of a cargo were not enti-
tled to recover demurrage for delay in loading where the proof showed that
whatever delay arose was owing to the failure of the steamer and tow to arrive
as scheduled, by reason of which other vessels arrived, and were loaded in turn
at the dock, in accordance with the customs of the port."^

Detention of Cargo for Nonpayment of Freight. — The owner of a vessel
ordinarily retain the cargo for nonpayment of freight, and charge demurrage
arising from such detention. *^-

Refusal to Receive Part of Cargo. — Where the master of a vessel refused
to receive more cargo before all of the shipment contracted for had been loaded,
whereupon a delay was occasioned to settle the matter, the ship was not entitled
to collect demurrage therefor.^^

Fault of Agent of Ship. — Where the stevedoring in discharging a vessel
was done by an employee of the ship's agent, the charterer was not responsible
for his delays.^^

§ 4360. Delay Caused by Act of God.— Floods, Storms and Droughts.

— Under a provision of a contract of affreightment requiring the shipper to load
the cargo as fast as the vessels can receive the same, adverse weather conditions
are not a defense to an action to recover demurrage for a failure to comply
with such stipulation. *'^^ A provision in a charter made in Liverpool for the

58. Decree, Ionia Transp. Co. v. Two 64. Fault of agent of ship.— Two Thou-
Thousand Ninety-Eight Tons of Coal, sand Tons of Coal, 135 Fed. 734, 68 C.
128 Fed. 514, affirmed in 135 Fed. 317, C. A. 372.

67 C. C. A. 671. The charterer having arranged for a

59. Estoppel to collect demurrage.^ discharge at a particular wharf, the ves-
Tweedie Trading Co. v. Pitch Pine Lum- sel's agent, on arrival, thought the berth
ber Co., 146 Fed. 612. unsuitable, and arranged for discharge at

60. Delay fault of vessel or owner.— another dock, which was occupied so
Murray v. Jump Co., 148 Fed. 123. t^at the vessel was delayed two days.

Held that, m the absence of other evi-

61. Failure to arrive on schedule time.

dence, the charterer was not liable for

— McArthur Bros. Co. v. 622,714 Feet of ^^^^j^ ^^^^^ ^j^j^j^ ^^^^ ^^^^^^ by the ship-

Uimbcr, l.n ]"ed. 389. owner and his agents. Two Thousand

62. Detention of cargo for nonpayment Tons of Coal, 135 Fed. 734, 68 C. C. A.
of freight. — Wellman v. Morse, 76 Fed. 372.

573, 22 C. C. A. 318. 65. Delay caused by act of God.— At-

63. Refusal to receive part of cargo. lantic, etc., Stcamsliip Co. v. Guggen-
— Decree, Wood v. Sewall, 128 Fed. 141, helm, 123 Fed. 330, decree affirmed in 147
affirmed in 135 Fed. 12, 67 C. C. A. 580. Fed. 103, 77 C. C. A. 329.

§§ 4360-4361



carrying of a cargo of timber from Ship Island, excluding from the computation
of lay days at the port of loading "any time lost by reason of fire, droughts,
floods, storms, strikes, lockouts, combinations of workmen, or any extraordinary
occurrence beyond the control of the charterers," does not apply to time lost
by reason of the charterers failing to have the cargo ready at the usual place
of storage, on account of a drought which was prevailing at the time of the
charter, and which affected the rivers by means of which the cargoes were ordi-
narily brought from the interior, but did not in any way aft'ect the delivery
of cargoes from the usual place of storage to the ship.^'^

Act of Public Enemy. — A detention of a vessel for unloading, which is
caused, not by any act of the shipowners or of the charterers, but wholly by the
actual firing of guns from an enemy's ships of war upon the forts in the harbor,
directly aft'ecting the vessel and making the discharge of the cargo dangerous
and impossible, can not be -considered as caused by "default" of the charterers,
within the meaning of a charter party stipulating for demurrage in case of their

§ 4361. Negligence or Wrongful Acts of Third Persons. — Under a
charter party providing that lay days for loading should commence at 6 o'clock
a, m. the day after the vessel's report of readiness and that she should load in
the customary manner at such wharf as she should be ordered by the charterer's
agent, the charterer is liable for demurrage for time lost before she could be
provided with a berth after such time commenced, although the delay was not
due to any fault of the charterer, but to that of a third party.*"^

Strikes by Workmen. — The term "strike" in the exceptions to the running
of lay days in a charter party excuses the charterers for delay caused by a refusal
of all the available workmen to work except for an advance in wages demanded
in the midst of loading a vessel. *^^ An exception of strikes from the running

66. Jonasen v. Kej-ser, 112 Fed. 443, 50
C. C. A. 334.

Where a ship is chartered in Liverpool
to carry a cargo of lumber from Ship
island, and the charter party provides
that "in the computation of days allowed
for delivery should be excluded any time
lost by reason of droughts, floods, and
storms, or any other extraordinary oc-
currence, beyond the control of the char-
terer," such exception does not apply to
a drought existing at the time of the
charter in the region of the Pascagoula
river, and which prevented the charterer
from obtaining the timber, but which
did not interfere with its delivery from
Moss point, the usual place of preparing
cargoes, and between which place and
Ship island no drought could affect the
delivery. 48 Fed. 117, reversed in Soren-
sen V. Keyser, 52 Fed. 163, 2 C. C. A.
650; Skantze v. Keyser, 52 Fed. 168, 2
C. C. A. 655; Wold V. Keyser, 52 Fed.
169, 2 C. C. A. 656.

67. Act of public enemy.— Decree,
Burrill v. Grossman, 91 Fed. 543, 33 C.
C. A. 663, reversed in 21 S. Ct. 38, 179
U. S. 100, 45 L. Ed. 106.

Where a vessel commenced discharg-
ing cargo in Rio de Janeiro on the day
that the revolution began there in 1893,
in which the insurgents captured govern-
ment warships in the harbor, and there
was thereafter more or less firing between

such ships and forts and batteries on
shore, and such condition of affairs was
produced by the hostilities as to render
it practically impossible to receive the
cargo with the dispatch contemplated by
the charter, either because of the intrinsic
danger incident to unloading or the ina-
bility to procure the necessary men to
do the work, such condition constituted
an unavoidable hindrance, and, to the ex-
tent that it prevented compliance with
the contract, excused performance, and
relieved the charterers from liability un-
der the provision requiring them to pay
demurrage for detention by the default
of themselves or their agent. Decree,
124 Fed. 838, reversed in Burrill v. Cross-
man, 130 Fed. 763, 65 C. C. A. 189.

68. Negligence or wrongful acts of
third persons. — Pyman Steamship Co. v.
Mexican Cent. R. Co., 164 Fed. 441.

69. Strikes by workmen. — Wood v.
Keyser, 84 Fed. 688. Decree affirmed in
87 Fed. 1007, 31 C. C. A. 358; Actiesel-
skabet Barfod v. Hilton, etc., Lumber
Co., 125 Fed. 137; Marshall v. McNear,
121 Fed. 428.

A strike of the employees of the char-
terer, without grievance or warning, and
an organized and successful effort on
their part to prevent, by threats, intimi-
dation, and violence, other laborers, who
were willing to do so, from discharging
a vessel, held to excuse the charterer for



§§ 4361-4362

days provided in a charter party includes a strike brought about by demands
of the charterers that the laborers loading the vessel shall conform to certain
reasonable rules and regulations."^^

Strike of Coal Miners. — A delay in obtaining a berth at a port because of
the large number of vessels unloading coal brought from foreign countries, ow-
ing to a domestic shortage caused by a strike of miners, was not caused by
strikes, within an exception in the charter party ."^^

§ 4362. Liability of Charterer of Ship. — Under a charter party which
placed the duty of discharging and delivering the cargo alongside upon the
■owners, neither the charterer nor cargo can be held liable for demurrage be-
cause of delay in discharging beyond the stipulated lay days, without proof that
it was through the fault of one or the other. '^^

Under Cesser Clause. — The rule of construction of a charter party contain-
ing a cesser clause relieving the charterer from responsibility after the comple-
tion of loading and also providing that the charterer shall pay freight and de-
murrage for delay in discharging, and giving a lien therefor, is that the cesser
clause is to be construed, if possible, as inapplicable to a liability with which the
lien is not commensurable, and where a ship was required to deliver her cargo
of coal to a purchaser, and discharge the same upon a general pile, by which the
lien was lost, the charterer may be held liable for the freight and demurrage.*^^
A charter provided for demurrage, but a "cesser clause" therein provided that
"the charterer's responsibility under this charter shall cease as soon as the cargo
is shipped and bills of lading signed, provided all the conditions called for in
this charter have been fulfilled or provided for in the bill of lading." The char-
ter also provided that bills of lading should be signed as presented without
prejudice to the charter party, but any difference of freight was to be settled
on signing the bills of lading. The signing of bills of lading did not operate
to release the charterers from liability for demurrage accruing prior to the
signing of the bills, from their failure to fulfill the conditions of the charter."^*

a delay of a week in the performance of
that work. Empire Transp. Co. v. Phil-
adelphia, etc., Iron Co., 77 Fed. 919, 23
C. C. A. 564, 35 L. R. A. 623, affirming
decree, 70 Fed. 208.

70. The fact that charterers have for
some time acquiesced in certain unrea-
sonable customs of baymen loading their
ships is no waiver of their right to re-
quire the abandonment of such customs,
and a strike resulting from such demand
is within the exceptions in the charter
party. Hawkhurst Steamship Co. v.
Keyser, 84 Fed. 093, affirmed in 87 Fed.
1005, 31 C. C. A. 347.

Strike on account of rain. — A vessel is
not ready to discliarge, witliin maritime
rule 5, regulating the length of time
within which a consignee of lumber
should receive it, without liability for de-
murrage, and requiring him to receive, in
questionable weather, "if the vessel is
ready to discharge," where the stevedores
refused to work on account of rain.
Bowen v. vSizcr, 93 Vi:A. 227.

71. Strike of coal miners. — Where, in
consequence of a strike of the anthracite
coal miners of Pennsylvania, large quan-
tities of coal were ))rought to American
ports from Wales and other coal mining

4 Car— 54

regions by vessels, and because of the
arrival of a large number of such vessels
at a given port at about the same time,
and the further requirement of consign-
ees that they should discharge at cer-
tain railroad docks to facilitate the ship-
ment of the coal to interior points by
rail, delay was caused to many of the ves-
sels in discharging, the strike can not be
held a proximate cause of such delay,
within the meaning of a charter provi-
sion exempting the charterer from liabil-
ity for demurrage on account of delay
caused by strikes. Decree, New Ruperra
Steamship Co. v. 2,000 Tons of Coal, 124
Fed. 937, affirmed in Niver Coal Co. v.
Cheronea Steamship Co., 142 Fed. 402,
73 C. C. A. 502, 5 L. R. A., N. S., 126.

72. Liability of charterer of ship. — De-
cree, West Hartlepool Steam Nav. Co.
V. 450 Tons of Kainit, 151 Fed. 886, af-
firmed in West Hartlepool Steam Nav.
Co. V. Virginia-Carolina Chemical Co.,
164 Fed. 830.

73. Under cesser clause.— Dewar v.
Mowinckcl, 179 Fed. 355, 102 C. C. A.

74. Schmidt v. Keyser, 88 Fed. 799, 32
C. C. A. 121.

§§ 4362-4364 carriers. 3956

Where Charterer Has Right to Move Vessel from One Berth to An-
other. — A charter party gave the charterer the right to move the vessel from
one discharging berth to another by paying towages. The master notified the
charterer that the discharge at one place would be completed in the afternoon,
and was directed to obtain a tug and move the vessel to another berth desig-
nated. He was unable to obtain a tug that night, and when the vessel reached
the berth the next morning it was occupied, and several days' delay resulted.
It was held, that the fault for the delay was not that of the vessel, but of the
charterer, and that he was liable for demurrage.'"'

§ 4363. Liability of Consignee. — Where a consignee is interested in
the cargo, and accepts it under a charter party made between the vessel and
the consignor who provides for demurrage, he is liable therefor in case of his

Provision in Charter Party for Payment of Freight. — Where a part of
the freight had been paid by the consignor, and the consignee was required
by the charter party to pay the balance, a provision in the bill of lading requir-
ing the consignee to pay freight at the rate agreed on, in accordance with the
terms of the charter party, referred to freight alone, and did not obligate the
consignee to pay demurrage."'

Liability by Estoppel. — Where, pending the discharge of cargoes of coal, the
consignees admitted their liability for demurrage, provided any was due, which,
however, they denied, and the shipowners, in reliance thereon, allowed the car-
goes to be discharged without asserting their lien, the consignees were estopped
to defend a suit for demurrage on the ground that another was the proper
party to be sued therefor.'^ ^

Consignee Acting as Broker. — Where the consignee of a cargo, named in the
bill of lading, which ran to him or his assigns, did not assign the same, and re-
ceived the cargo, and paid the freight, he cannot avoid liability for demurrage on
the ground that he acted only as broker in the transactions.' ••

Where Duty of Discharging upon Vessel or Consignor. — The consignee
of a cargo, under bills of lading which obligated it only to receive the cargo as
delivered by the vessel, leaving the duty of discharging upon the vessel or the
charterer, is not subject to the provisions of the charter party respecting the
time for discharging or demurrage, nor, if liable for demurrage because of
failure to receive the cargo as delivered, is such liability measured by the stipu-
lated penalty provided in the charter party as between the owner and charterer^
but is to be determined by evidence as to the actual damage resulting from its
neglect or default.**'

§ 4364. Liability of Purchaser of Cargo. — A written contract for the
sale of cargoes of coal to be delivered from the ships, which contained no pro-
vision with respect to the rate of discharge, bound the purchaser only to re-
ceive the coal at a rate which was customary and reasonable under the cir-

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 159 of 214)