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

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cumstances ; and, where it did so, it can not be held liable for demurrage which

75. Where charterer has right to move which contain an agreement to pay de-
vessel from one berth to another. — De- murrage, and the latter accept the cargo
cree. 158 Fed. 20.3, affirmed in Hammett with knowledge of the contents of such
V. Chase, etc., Co., 165 Fed. 1005, 91 C. bills, they will be estopped from denying
C. A. 663. a claim for demurrage on the ground

76. Liability of consignee.— Graham v. that the goods were shipped under a dif-
Planters' Compress Co., 129 Fed. 253. ferent contract not allowmg demurrage.

„„ r^ ... , , ^ r Gabler v. McChesney, 70 N. Y. S. 191,

77 Provision m charter party for pay- ^^ ^ j^i^ 5^3

ment of freight.-Graham v. Planters 79. Consignee acting as broker.-Crow-

Compress Co., 129 Fed. 2o3. j^^ „^, ^^^^^y ^-^ P^^ _^9^

78. Liability by estoppel. — Taylor v. sO. Where duty of discharging upon

Fall River Ironworks, 124 Fed. 826. vessel or consignor. — West Hartlepool

Where the master of a canal boat pre- Steam Nav. Co. v. 450 Tons of Kainit,.

sents bills of lading to the consignees 151 Fed. 886.

3957 . CARRIAGE OF PROPERTY. §§ 4364-4365

the seller was obliged to pay under the charter parties, requiring a more rapid
discharge. ^^

§ 4365. Delay in Loading- or Sailing. — Vessel Loaded in Turn. — A

charterer is not liable for demurrage because seven days elapsed between the time
the vessel was ready to load with lumber and the completion of her loading, the
usual time for loading being from three to four days, where the delay was due
to the fact that she was required to wait her turn in accordance with the custom
of the port and the scarcity of labor, all the available men at the port being
engaged in loading the vessels ahead of her.^'*^

Caused by Nature of Goods Shipped. — The respondent, as agent for cer-
tain steamships, is not liable for demurrage, because the derricks of the libelant
hired by a shipper to transport locomotives in parts to the steamships and by
the respondent to hoist the same on board and into the holds at a stipulated
price for each were not allowed to deliver the same as rapidly as they could
have done, where the parts were received and stowed with reasonable skill and
dispatch, and the delay resulted from the character of the cargo and the manner
in which it was loaded on the derricks, and it further appeared that libelant fur-
nished a larger number of derricks than could conveniently be discharged at
the same time.^"^

Cargo Different from That Specified in Charter. — Demurrage is recov-
erable for delay in loading, due to the fact that the cargo was different from
that specified in the charter. ^^

Failure of Shipper to Deliver Goods. — Under a charter for the carriage
of cargoes of coke which provided that it should be loaded on the vessels "as
fast as they can receive the same," the owner is entitled to demurrage for delay
in loading caused by the failure of the charterer to have a supply of coke on
hand at the port of loading."*''

Goods Delivered at Another Wharf. — Where the bill of lading provided
that the vessel should load continuously, working all the hatches at once, the
owner of the vessel is entitled to recover for demurrage, where a portion of the
cargo was not at the wharf at the place of shipment, and the vessel was compelled
to cross the river to a place where such other portion of the cargo was fur-

Goods Delivered in Inconvenient Place. — The charter party merely provid-
ing the shipper should furnish the lumber at a certain rate per day, and the ship
should employ her own stevedore, and it not appearing that when it was made the
carrier knew how it w\as piled on a wharf, it w^as the shipper's duty to deliver it
at a place convenient for loading directly into the ship.'^'

Goods in Unfit Condition for Loading-. — A provision in a charter for carry-
ing lumber that the cargo should be furnished "at the port of loading as fast as
vessel can receive and properly stow same in suitable hours and weather," has
reference to the hours and weather suitable for loading and stowage, and does not
exclude time lost by reason of the lumber becoming wet, and unfit for loading,
before it is forwarded to the ship.'-^

81. Liability of purchaser of cargo.— 85. Failure of shipper to deliver goods.

Furness. etc., Co. v. Leylancl Shipping —Decree 12.3 Fed. 3150. attirmed in At-
Co.. 134 Fed. 815. r,7 C. C. A. 461. lantic, etc.. Steamship Co. v. Guggenheim,

82. Delay in loading or sailing.— Willis- ^^L^'S^^' ^a^' ]\-^- 9 ^J ^^^\u u r
croft V. Cargo of the Cyrenian 123 Fed. f^' Goods delivered at another wharf.
-.(.q — Iwcedic 1 rathng Co. v. 1 homsen &

oo ^ J u . r J u- J Co.. 173 Fed. 710.'

83. Caused by nature of goods shipped. g?. Goods delivered in inconvenient
— Merntt. etc.. Wrecking Co. v. \ oge- place.— Tweedie Trading Co. 7-. Craig, 144
man. 143 I-ed. 142. k^- y. S. (U. l.V.) Api).'Div. 192.

84. Cargo different from that specified 88. Goods in unfit condition for loading,
in charter. — Hagan v. Cargo of Lnmljer, — Durchmann v. Dunn, lOn Fed. 950, 46
1G3 Fed. 657. C. C. A. 62.

§ 4365 CARRIERS. 3958

Causes beyond Control of Charterer. — Under a charter party providing
for payment of demurrage by the charterer for delay in loading or discharging
beyond the lay days specified, "except in case of * * * causes beyond the
control of the charterer," the charterer is not liable for delay in loading caused
by the refusal of the owner of the coal dock at which the vessel was directed to
load, and which was the only one at which the charterer could reasonably load,
to give her proper dispatch, which was a cause "beyond the control of the char-
terer," withni the meaning of the exception. ^''^

' Caused by Towage between Ports. — Under a charter for the carriage of
lumber to be loaded at two ports, requiring the charterer to pay the towage be-
tween the two, the time of such towage can not be charged in the lay days for
loading, nor the time lost in obtaining a tug not due to anv default of the char-

Caused by Constituted Authority. — Where a vessel was chartered to load
at a pier belonging to a town in a foreign port, in charge of the captain of the
port, whose duty it was to assign vessels to berths at the pier, and he refused to
permit the vessel to berth in her turn at the pier in a berth where she would pro-
ject beyond the pier, resulting in a delay, such delay was caused by the "interven-
tion of constituted authorities," within an exception in the charter party relieving
the charterers from liability for demurrage.^i A vessel is not entitled to demur-
rage for the time she is detained by a shipper by virtue of a legal seizure, although
on a claim which was unfounded and subsequently dismissed, unless the proceed-
ing was in bad faith or malicious.^-

Failure of Shipper to Furnish Stevedore. — A charter party required the
charterer to pay demurrage for each and every day's detention by his default,
and provided : "Charterers' stevedore to be employed in loading and discharging
at not to exceed current rates." It was the master's duty to load the vessel. The
charterer designated a stevedore at the port of loading; but on arrival there, by
reason of a strike, he declined to load, and the charterers' agent notified the
master that he w^aived the privilege of naming the stevedore. It was only a priv-
ilege, which imposed no duty on the charterer to furnish a stevedore, and he
could not be charged with demurrage because of his failure to do so. where the
cargo was ready. ^'^

Loading at Port Designated by Charterer. — A vessel, under charter to
load at either one of three ports at the charterer's option, and which has been
ordered to one where she can not be loaded without delay, is not bound to re-
move to another to save the charterer demurrage, and does not forfeit the right
to demurrage because she demands for such removal a sum which the charterer
refuses to pay.^^

Liability of Charterer for Act of Agent. — Where the agents of the char-
terer of a vessel for the carriage of a cargo of coal directed her to report to a
coal company for loading, the charterer became responsible for the acts of such
company, and liable for demurrage because of its failure to give customary dis-
patch in loading ^^'

Caused by Refusal to Sign Bill of Lading. — A shipowner is not entitled
to demurrage from a charterer for delay in the sailing of the vessel after she was

89. Causes beyond control of charterer. 93. Failure of shipper to furnish steve-

— Decree lfi4 Fed. 441, reversed. Pyman dore. — Harrington v. American, etc.,

Steamship Co. r. Mexican Cent. R." Co., Lumber Co., 185 Fed. 475, 107 C. C. A.

169 Fed. 2S1, 94 C. C. A. 557. 575.

90. Caused by towage between ports. — 94. Loading at port designated by char-
Hagan r. Cargo of Lumber, 163 Fed. 657. terer. — Stoomvart Maatschaffy Neder-

91. Caused "by constituted authority.— landsche Lloyd v. Lind, 170 Fed. 918, 96
Adamson v. 4,300 Tons Pyrites Ore, 137 C. C. A. 134.

Fed. 998. 95. Liability of charterer for act of

92. Watt z: Cargo of Lumber, 161 Fed. agent.— Carleton r. Three Hundred Six-
104. " ty-Seven Tons of Coal, 206 Fed. 345.

3959 CARRIAGE OF PROPERTY. §§ 4365-4366

loaded, wliich was due to the claim of the master that the cargo was in excess of
that actually loaded, and his refusal to sign bills of lading for the correct quantity. ^^

Charter Party Provision for Quick Delivery. — A provision of a charter for
quick delivery on hoard should be given a reasonable interpretation with refer-
ence to the character of the cargo, as well as its destination and the manner of
stowage required, in order to facilitate its discharge. A requirement that the
cargo shall be delivered as fast as the ship can receive it does not render the
charterer liable for demurrage because all her hatches are not used at the same
time, where the size and weight of the packages and the facilities of the wharf
are such a^ to render such use inconvenient.^'

Under Bill of Lading Issued after Loading. — In the absence of intention
to the contrary, the bill of lading, though issued after the vessel was loaded, pro-
viding "any detention on the part of the shipper in supplying cargo as fast as
steamer can receive to be accounted for by payment of demurrage" at a certain
rate, relates back and governs liability of the shipper for delay caused by him
during the loading. ^^^

Time Excepted in Charter Party. — A provision, in a charter for carrying a
cargo of lumber, that the cargo should be furnished "as fast as vessel can receive
and properly stow same in suitable hours and weather," has reference to the
hours and wxather suitable for loading and stowage, and does not exclude time
lost by reason of the lumber becoming wet in distant yards, and unfit for loading,
before it is forwarded to the ship.^^'

Holidays Not Excluded in Computing Time. — The Pennsylvania statute
relating to holidays and half holidays does not make them obligatory, and where
it is not shown that the stevedores engaged in loading a vessel refused to work
on Saturday afternoons because of the statute such half days are not to be ex-
cluded in computing demurrage.^

§ 4366. Delay during Voyage. — Under a contract to transport bricks
from New York to Colon, where there was a detention of two steamers at New
York and of three at Colon by respondent, libelant was entitled to recover.^
Where a vessel is detained on account of the illness of her master and steward,
the hire ceases for the time lost to the charterer.^ A firm of shipping agents
chartered a vessel "as agents for charterers," but without disclosing any principal,
to carry a cargo of lumber from Pensacola to "any safe port" in the western
Mediterranean. Before time for entering on the voyage, they chartered to re-
spondents at an increased rate of freight. It was held, that respondents were
not bound as principals under the original charter, but were shippers charged
with notice of such charter, and, while not held to the stipulations therein as to
demurrage days and rate of demurrage, they were bound, within a reasonable
time after loading, to name a safe Mediterranean port for delivery of cargo, and
liable for the detention of the vessel necessarily resulting from their naming an
unsafe port, for which the master refused to sign bills of lading.^

96. Caused by refusal to sign bill of 144 N. Y. S. 64, 159 App. Div. 192.
lading.— Wood 7: Sewall, 12S Fed. 141, 99. Time excepted in charter party.—

affirmed i:].5 Fed. 12, 07 C. C. A. .-580. Durchnian v. Dniiii, 101 Fed. r.06.

Where, after a cargo was loaded, the

1. Holidays not excluded in computing

master refused to s,gn the bil of lading time.-Holland Gulf vSteamshipping Co.

presented by the charterer on he ground ^, ^ ^^^ p^^, Wen v. Hagar,

that it was incorrect, but, after several „_ -r.^! Vno

1 11 1. 1 I • J xu 95 red. 49.3.

days delaj', altered and signed the same, t-. i j • n^ i-

the charterer cannot be charged with de- ^^'..^^^^^ durmg voyage. — Tweedie

murrage for the time so taken. The As- Trading Co. v. New York, etc., R. Co.,

Syria. 98 Fed. 316. 39 C. C. A. 97. 1^'^^ Fed. 993.

97. Charter party provision for quick 3. Northern vSteamship Co. v. Earn-Line
delivery.— I Jren 7>. Ilagar, 95 Fed. 493. Steamship Co., lf.9 Fed. 708.

98. Under bill of lading issued after 4. Keyser & Co. v. Jtirvelius, 122 Fed.
loading.— Tweedie Trading Co. v. Craig, 218, 58 C. C. A. 664.

§ 4367 CARRIERS. 3960

§ 4367. Delay in Unloading. — \Miere the charter or bill of lading is silent
as to the time of unloading and discharge, there is an implied contract to dis-
charge the vessel within a reasonable time.-"*

Reasonable Rate of Discharge. — Where the wharves at a port are not all
ecjually convenient for the discharge of every sort of cargo, in the absence of a
custom establishing a uniform rate, a reasonable rate of discharge is not neces-
sarily the same at all wharves, and, wdiile a wharf may be so inconvenient as to
render the consignee responsible for the delay in discharging thereat, the reason-
able convenience required is not the highest degree of convenience either imag-
inable or actually existing.*^

Customary Dispatch. — A charterer is liable for demurrage for failing to
discharge the vessel with customary dispatch as required by the charter."

Unloading in Turn. — Where, through the charterer's failure to discharge a
vessel at her jiort of destination, she is obliged to proceed to another port, she
can not be held to have contracted with reference to a custom of such port that
she shall await her turn to discharge, and for delay caused thereby the charterer
is liable in demurrage.'^ Where the charter of each of two schooners chartered
to the same party to carry cargoes between the same ports required the vessel
to load and discharge in turn with other vessels of the charterer, one which was
chartered first, loaded and sailed first, and first arrived at the place from which
they required to be towed was entitled to be first discharged, although the other, by
telephone, first gave notice of her arrival.-' Where a charter party required the
vessel to be discharged at a fixed rate after she was ready to unload, whether in
berth or not, a provision that, in case of strikes, or any other causes or accidents
beyond the control of the consignees, which prevent or delay the discharging, such
time is not to count, does not exempt the charterer from liability for delay caused
by the vessel waiting her turn.^"

Unloading from Single Hatch. — For a delay in unloading not occasioned by
any insufliciency of carts to receive the cargo, but by reason of the vessel deliver-
ing from but one hatch, wdien she might have used two, no demurrage is re-

Causes beyond Charterer's Control. — Delay in the discharge of vessels
laden with coal, due to the arrival at the same port at about the same time of a
large number of such vessels, each under a separate charter to the same party,
was not the result of "causes or accidents beyond the charterer's control," within
a provision of the charter parties exempting it from liability for demurrage in
such case^- A delay of six days before commencing to discharge a cargo of
iron ore, consigned to the charterer and which he had sold to a manufacturer, .
caused by the refusal of a railroad company because of a dispute with the man-
ufacturer to furnish cars in which to unload the ore, was not chargeable to the
charterer on the lay days, under a provision of the charter party excepting "all

5. Delay in unloading.— 70 Fed. 268, af- Coal Co. v. Ionia Transp. Co., 174 Fed.
firmed in Empire Transp. Co. v. Philadel- 798, 98 C. C. A. 506.

phia, etc.. Iron Co., 77 Fed. 919, 23 C. 9. Farrow v. American Agricultural

C. A. 564, 35 L. R. A. 6§3. Chemical Co., 194 Fed. 1018.

6. Reasonable rate of discharge. — The 10. New Ruperra Steamship Co. v.
James Baird, 90 Fed. 669. 2,000 Tons of Coal, 124 Fed. 937, affirmed

7. Customary dispatch.— Hinckley v. •" Niver Coal Co. v. Cheronea Steamship
Wilson Lumber Co., 205 Fed. 974. Co., 142 Fed. 402, 73 C. C. A. 502, 5

Customary dispatch at the port of New L. R. A., N. S., 126.

York for discharging a cargo of railroad H- Unloading from single hatch.—

ties held to require that the vessel be Ewan v. Tredegar Co., 88 Fed. 703.

given a berth within 24 hours after she 12. Causes beyond charterer's control.

reported, and be discharged thereafter at — Decree, New Ruperra Steamship Co. v.

the rate of 50,000 feet, board measure, 2,000 Tons of Coal, 124 Fed. 937, affirmed

each working day. Crowley v. Hurd, 172 in Niver Coal Co. v. Cheronea Steamship

Fed. 498. Co., 142 Fed. 402, 73 C. C. A. 502, 5 L.

8. Unloading in turn.— Lehigh Valley R. A., N. S., 126.


causes beyond the control of the shipper, the consignee or the charterer which
may prevent or dehiy the loading or discharging." ^^

Caused by Unforeseen Obstacles. — The charterer is not bound to dis-
charge the vessel in the customary time, regardless of unforeseen obstacles and
unusual circumstances. ^^ But where the time for the discharge of a vessel is
stipulated in the charter or bill of lading, or is definitely fixed by it, so that it
can be calculated beforehand, the charterer thereby agrees to discharge her
within that time, and he takes the risk of all unforeseen circumstances. ^^

Caused by Public Authorities. — Where a contract of shipment requires the
canal boat to be brought to the dock of the consignee, and requires the payment
of a certain sum per day as demurrage on the failure of the consignee to unload
within three days, the removal of the boat from the consignee's dock within the
three days by the public authorities, caused by the temporary closing of the canal,
will prevent a recovery of demurrage for the time the boat is prevented from
returning to the dock.^*^ Where the discharge of a vessel was stopped during
five hours for want of a customhouse permit, which had been mislaid by a cus-
toms officer, and the permit was procured by the charterer very soon after the
discharge was stopped for want thereof, and it did not appear that the stevedore
was ready to proceed when the permit arrived, the charterer was not liable for
such delay. ^"

Caused by Sinking of Vessel. — A vessel is entitled to recover demurrage
for delay beyond the lay days allowed by the contract for discharging caused by
her sinking at the dock through the negligence of the consignees.!^

Caused by Inability of Vessel to Reach Wharf. — A consignee of cargo
can not be held liable for demurrage because of delay in discharging, due to the
inability of the vessel to reach the dock designated for discharge, owing to ob-
struction by dredges engaged in improving the waterway, in the absence of a
contract covering such situation, and where the obstruction was not known when
the dock was designated.!^

Caused by Unsafe Approach to Wharf. — Under a charter providing that
the wharf for discharging shall be selected by the charterer, where the ship can
slways safely lie afloat at any time of tide, the charterer is liable for the vessel's
loss of time and expense due to an unsafe approach to a discharging wharf se-
lected by him. 2"

Caused by Temporary Derangement of Dock Machinery.— Where a
charter party contains no express provision for demurrage, or fixing the lay days
for loading and discharging, an implied obligation arises on the part of the con-
signee for reasonable dispatch in discharging, and demurrage is recoverable for
delay beyond a reasonable time under the circumstances surrounding the case,
and without the fault of the vessel ; but the consignee is not an insurer against
delay in the absence of a charter provision to that efifect, and there is no liability
for demurrage where delay occurs from circumstances beyond his control, and
which could not have been anticipated, such as a temporary derangement of the
dock machinery used for unloading, where there was no other dock available. -^

13. Pool Shipping Co. v. Samuel, 192 17. Two Thousand Tons of Coal. 135
Fed 57 Fed. 734, 68 C. C. A. 372.

14. Caused by unforeseen obstacles.- \f- Caused by sinking of vessel.-Car-
Empire Transp. Co. v. Philadelphia, etc.. roll r Holway 1..S rH;d.^28

Iron Co., 77 Fed. 919, 23 C. C. A. 564. 35 19- Caused by inability of vessel to

L. R. A. 623, affirming decree 70 Fed. reach wharf -Roncy r. Chase etc. Co..

«-Q IGO I'c'd. 2()S, reversed m 161 Fed. 309.

' ^ . ^ - T., •, J , , • 20. Caused by unsafe approach to wharf.

15. Empire Transp. Co. v. Philadelphia, _Crisp v United States, etc., Steamship
etc., Iron Co., 77 Fed. 919. 23 C. C. A. q^ -,o.j. Fed 748

564. 35 L. R. A. 623, affirming decree 70 ^j Caused by temporary derangement

Fed. 268. pf (jock machinery. — -Ionia Transp. Co. v.

16. Caused by public authorities.— Gal)- Two Thousand Ninety-Eight Tons of
ler V. McChesney, 70 N. Y. S. 191, 60 Coal. 128 Fed. 514. affirmed in 135 Fed.
App. Div. 583. .317, 67 C. C. A. 671.

§ 4367 CARRIERS. 3962

Caused by Master's Absence from Vessel. — The master or shipowner can
not recover demurrage, under a charter party, for delay in discharging caused by
the master's absence from the vessel, so that she could not be moved to another
dock upon the purchaser of the cargo refusing to receive it on the ground that it
was in bad condition. 22

Caused by Inadequate Facilities. — The charterer of a barge can not be
held liable for demurrage because of delay in unloading a quantity of coal from
the barge's hold, after she arrived at the place of loading, owing to the inadequacy
of the charterer's facilities, where the coal was taken on by the master under a
contract made with a third party after the charter, and without consulting the
charterer. 23

Caused by Unloading into Cars. — A provision of a shipping contract, re-
quiring the shipper to receive cargo as fast as it could be discharged by the ship,
is to be reasonably construed, and, where the parties knew that cargo was to be
transported by rail from the dock, the shipper had the right to discharge into
cars, although it involved a somewhat longer time.-^

Failure to Provide Wharf. — A vessel under charter has the right to expect
the charterer to provide sufficient dock room to enable her cargo to be discharged
promptly and continuously, in the absence of any extraordinary conditions, and
the charterer is liable for demurrage where there is delay through his neglect to
provide such dockage.-^

Failure to Use Special Facilities. — Where, by the bill of lading, the cargo
is to be delivered "free of handling" at the private dock of a consignee known
lo have special facilities for unloading, the vessel will be entitled to demurrage
for unnecessary delay of the consignee in beginning the discharge, although the
total time consumed, including the delay, is not longer than would have been oc-
cupied in discharging at a public dock of the same port with the inferior facilities
there afiforded.^*"'

Failure to Furnish Lighter. — A charterer is liable for demurrage for the
time a steamer is obliged to wait before she can get a berth where she can lie
and discharge, under a provision of the charter party requiring the charterer to
provide lighters, if necessary, and where she can discharge at once if a portion
of her cargo is lightered. 2"

Failure to Settle Prior Claim for Demurrage. — Demurrage can not be

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 160 of 214)