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

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recovered from a charterer for delay in discharging, due to the refusal of the
owner to discharge without settlement of a prior claim for demurrage at the
port of loading. 2s

Facilities at Different Wharf. — The claim of a boat owner for demurrage
on account of delay in discharging disallowed, where it appeared that he could
have secured quick discharge by moving to a different location in the same yard.^^

Designation of Wharf. — A designation by a charterer of a berth for a
vessel, on notice of its arrival in port, was given within a leasonable time when
delivered within two or three hours from such notice of arrival.^^ Where a bill
of lading for a cargo requires its delivery to the consignee "or assigns," the
master knows that the wharf of discharge may not have been selected ; and the

22. Caused by master's absence from Pioneer Fuel Co. v. McBrier, 84 Fed. 495,
vessel.— Whitman 7;. Vanderbilt, 75 Fed. 28 C. C. A. 466.

422, 21 C. C. A. 422. _ 27. Failure to furnish lighter.— Steam-

23. Caused by inadequate facilities.— ship Rutherglen Co. v. Honlder, 196 Fed.
Donaldson v. vSevern River Glass Sand qiq

Co., 138 Fed 691: S. C, 138 Fed. 694. ^g p^Uure to settle prior claim for de-

24. Cai;sed by unloading mto cars- n,urrage.-Ha^an v. Cargo of Lumber.
Tweedie Tradmg Co. v. New York, etc., ^^^ P^"^ gg,j,

R. Co.. 194 Fed. 281. '„„ ^' ... '. ^ ,.rr ^ i. r tv/t

25. Failure to provide wharf.-Willis- 29. Facilities at different wharf.— Mur-
croft V. Cargo of the Cyrenian. 123 Fed. '"^y v. Jump Co., 148 Fed. 123.

169. 30. Designation of wharf. — The St,

26. Failure to use special facilities. — Bernard, 105 Fed. 994.

3963 carriage; of property. § 4367

fact that the consignee sells the cargo before its arrival, and designates the wharf
of the buyer as the place for its discharge, does not change the rule as to de-
murrage for delay in being provided a place to discharge.^ ^

After Notice of Arrival. — Under a charter party providing for lay days to
begin running at the port of loading on the day following the receipt of the cap-
tain's written notice of readiness, accompanied by a surveyor's certificate, but
containing no provision as to notice at the port of discharge, the charterer's con-
tention that it was not required to unload until the day following the receipt of
notice of readiness, which could not be given on a holiday, was not sustainable. ^-

Necessity for Protest against Delay. — Protest by a master of a vessel
detained on demurrage is, if ever, necessary only where the owner has cause of
complaint, or is about to take some step which may prejudice the shipper.^^

Refusal of Consignee to Accept Cargo. — A consignee of lumber, shipped
to him under an executory contract to purchase, is not liable for demurrage,
where the delay was due to his refusal to accept the lumber without an abate-
ment of price, because it was not of the specified quality.^"* Where, though the
consignee is not liable for demurrage under the bill of lading or charter party,
he improperly refuses to take part of the cargo within a reasonable time after
arrival, he thereby becomes liable for damages arising from the delay .-'^ Where
the consignor of cargo hires the vessel for its carriage, he is liable for demurrage
on account of delay in discharging caused by the refusal of the consignee to re-
ceive the cargo, and can not require the vessel owner, without his consent, to look
to a new consignee for any part of it.-^^

Under Cesser Clause. — The cesser clause of a charter party, saying "Char-
terers' responsibility to cease when vessel is loaded and bills of lading are signed,"
does not relieve the charterers from liability for demurrage under provisions of
the charter requiring them to pay demurrage for any delay in delivery by their
fault or that of their agent, and declaring that the vessel is to have an absolute
lien upon the cargo for all freight, dead freight, and demurrage, where the bills of
lading, which do not mention demurrage or refer to any other provisions of the
charter than those concerning freight and average, have been assigned, and the de-
lay in unloading is made by the assignees of the bills of lading, who thereby be-
came consignees of the cargo, since the rights of the shipowners against those
consignees depend altogether upon the contract created by the bills of lading, ex-
cept so far as that contract refers to the charter party.^'^

Sundays and Holidays. — In a provision of a bill of lading which entitles
the ship to discharge "continuously," the word must be construed to mean con-
tinuously during working days, and "working days" exclude Sundays and hol-
idays usually observed, and include only the usual working hours of days on
which usual work is only prevented by weather.^^

Demurrage in Nature of Penalty. — A clause of a charter party or bill of
lading providing that, after arrival and notice to the consignee, the vessel shall
have precedence in discharging over all vessels arriving or giving notice after

31. The \'iola. 90 Fed. 750. cargo. — Conkling v. Brooklyn Lumber

32. After notice of arrival. — Holman v. Co., 41 N. Y. S. 801, 10 App. Div. 404,
Cans Steamship Line. 186 Fed. 96, 108 75 N. Y. St. Rep. 1200.

C. C. A. 208. See Perry v. Spreckles' 35. Graham v. Planters' Compress Co.,

Suear-Refin. Co., 110 Fed. 777. 199 Fed 253

No particular form is required for a \^ Sheridan v. Penn Collieries Co., 128

not'ce to a consignee ot the arrival or pi <,^^

a vessel to be discharsred by him, but it ' \^' , , ^ „
is sufficient if he actually receives such .37. Under cesser clause.— Decree, Bur-
notice from a third person, and a notice i"''! "^'- Crossnian, 91 Fed 543, 33 C. C. A.
given on Sunday is also sufficient. Car- '''^'S, reversed m 21 S. Ct. 38, 179 U. S.
roll V. Holway, 158 Fed. 328. !""• 4'> L. Fd. 106.

33. Necessity for protest against delay. 38. Sundays and holidays. — Tweedie
—Brown v. Ralston, 36 Va. (9 Leigh) 532. Trading Co. v. Pitch Pine Lumber Co.,

34. Refusal of consignee to accept 156 Fed. 88.

§§ 4367-4368 carriers. 3964

her arrival, and stipulating for special demurrage in case of a violation of such
provision, is in the nature of one for a penalty, which should not be imposed
unless the case comes clearly within the purpose which it intended to accomplish ;
and where the original consignee of the cargo, to whom notice of arrival was
given, refused to receive it, and the master was instructed by the shipper to
deliver to another, the latter became from that time the consignee, for the pur-
poses of such clause, and the special demurrage is not recoverable because pre-
cedence in discharging was given to another vessel, through the action of the
original consignee, after its refusal to accept the cargo. ^'^

Damages in Nature of Demurrage. — A consignee and owner of a cargo is
liable to the owner of the vessel for damages in the nature of demurrage for
unreasonable delay in discharging the cargo after arrival, though the bill of lad-
ing contains no stipulation as to demurrage and prescribes no time within which
the cargo shall be discharged.-*"

Delay after Unloading. — A contract of shipment, making the consignee lia-
ble for demurrage in a certain sum per day for failure to unload a canal boat in
a given time, does not authorize a recovery for the time after the boat was un-
loaded in which it was detained in the canal, though the vessel was not unloaded
within the period allowed therefor, and the break in the canal did not occur
until the expiration of such time."^^

§ 4368. Effect of Custom and Usage. — Known to Charterer. — Where
a charter party provided that a certain number of working days should be al-
lowed for loading the vessel in the port, and that the custom of each port was
to be observed in all cases, and the vessel was delayed more than the days
allowed owing to the members of labor organizations refusing to work on days
generally recognized as working days, a contention that, the practice of such
labor organizations being known to the shipowners, the delay should be
excused, under the clause relative to customs of ports, is without merit,
since the custom of labor organizations in the port, and their manner of
refusing to work, being known to the charterer of a shij:), if he wished to pro-
tect himself from the results of their refusal to work on days generally regarded
as working days he should so provide in his charter party. ^-

As to Assigning Vessel to Particular Dock. — Where there is no provi-
sion in the 1)ill of lading on the subject, the consignee has, under the custom
of most or all of the Atlantic ports, the privilege of determining at which of its
docks the vessel should discharge, and her right to her turn was limited to such
dock. This privilege, however, is not absolute ; and whether the assigning her
to a particular dock, where she was delayed awaiting her turn, while other
vessels arriving after her were discharging at the consignee's other docks, ren-
ders the consignee liable to demurrage, depends on whether such assignment
was just and reasonable, and based on some reasonable necessity.'*^

39. Demurrage in nature of penalty.— ^ges in the nature of demurraRe for de-
Continental Coal Co. V. Bowne, 115 Fed. \.^y resulting from her being ordered by
945, 53 C. C. A. 427. the cargo owner to discharge at a berth,

40. Damages in nature of demurrage.— which she could not then rea'^ch, because of
Washburn v. Empire Brick, etc., Co., 137 dredging work lieing done by the gov-
N. Y. vS. 489. 152 App. Div. 563. ernment. Decree IfiO Fed. 268, reversed

The vendee of the consignee of a cargo ;„ Roney v. Chase, etc., Co.. 161 Fed. 309.

is liable to the owner of the vessel for ^^ j^^j ^^^^^ unloading.— Gabler v.

damages resulting from unreasonable de- McChesney, 70 N. Y. S. 195, 60 App. Div.

lay by the vendee m unloadmg. Wash- ^^^

burn V. Empire Brick, etc., Co., 137 N. ' '^ _„ , r ^ j tt

Y. S. 489, 152 App. Div. 563. 42- Effect of custom and usage-Hag-

Where a contract of affreightment re- ^'■^an v. Norton, 105 Fed. 996. 46 C. C.

quired a vessel only to deliver the cargo ^- '^■

at the port of New York, although it 43. As to assigning vessel to particular

contained no specific provision for de- dock. — Evans v. Blair, 114 Fed. 616, 53

niurrage, she is entitled to recover dam- C. C. A. 396.



§ 4368

As to Rate of Discharging. — A custom of a port as to the rate of dis-
charging a certain kind of kmiber from a vessel, to govern the rights of parties
under a contract otherwise indeterminate, must not only be established and
reasonable, but also certain and definite.'*"'

As to Preference in Discharging. — A provision of a charter that the vessel
should be loaded by a coal company "in turn" must be strictly construed, and it
shuts out a practice of the company to give preference to its own vessels, or to
sell coal to local customers from the supply which would otherwise have been
available for loading at its docks, to the delay of the chartered vessel. ^^

As to Discharging in Turn. — A custom of a port for vessels to discharge
in turn and that a vessel is not entitled to demurrage during the days she is
awaiting her turn is reasonable and enforceable.'*'''

Contract Prevails over Usage. — An agreement of an owner in a charter
party to load cargo according to custom of port is not governed by the custom
of port as to time of loading, where the charter party allows a specified number
of running lay days, Sundays, and holidays, even if used, excluded, for loading.^''
A custom existing in San Francisco between shippers and shipowners, requiring
a consignee to designate a berth for the discharge of cargo, can not prevail over
the terms of contracts requiring the delivery of certain quantities of coal re-
spectively "at the wharf" and "on wharf as customary," to the Quartermaster's
Department of the United States Army at Honolulu, at which place the custom
is to discharge freight upon the wharves, so as to render the government liable
for the delay in reaching a berth, which was caused by the conditions existing
in Honolulu Harbor to the ships chartered by the vendor to carry out his

44. As to rate of discharging. — Such a
custom can not he found on testimony
that the rate is "from 17,000 to 20,000"
feet per day, or "from 25,000 to 30.000"
feet. Such testimony can only establish
the usual or average time for unloading,
and is valuable only as showing the lim-
its, under ordinary circumstances, of a
reasonal)le rate of discharging lumber of
that kind at such port, and does not ob-
viate the necessity of considering the par-
ticular circumstances of each case. The
James Baird, 90 Fed. 669.

45. As to preference in discharging. — ■
Donnell v. Amoskeag Mfg. Co., 118 Fed.
10, 55 C. C. A. 178. See In re Cargo of
3,408 Tons of Pocahontas Coal, 175 Fed.

In a charter of a vessel to carry railroad
ties a provision that from the time the
vessel is reported ready not less than
1,500 ties shall be furnished per running
day "for loading at port of loading, and
prompt dispatch for discharging at port
of discharge," entitles the ship to demur-
rage for delay in unloading caused by
other vessels being previously at the con-
signee's dock, though, by the custom of
the port, vessels are obliged to take their
turn. Ten Thousand & Eighty-Two Oak
Ties, 87 Fed. 935.

46. As to discharging in turn. — The
consignee of a cargo of lumber who had
a wharf in connection with his lumber
yard had the right to require the vessel
to discharge at such wharf without lia-
bility for demurrage because of delay in

awaiting her turn, where the charter party
provided for "customary dispatch" in dis-
charging and the custom of the port re-
quired her to wait her turn without de-
murrage. Gilbert Transp. Co. v. Borden,
170 Fed. 706, 96 C. C. A. 26.

While, in the absence of qualifying cir-
cumstances, it is usual and customary at
the port of Boston for a consignee to
have a berth provided at which a vessel
may discharge her cargo within 24 hours
after her arrival, by the custom of the
port the presence at the designated wharf
of other vessels, which arrived earlier, is
considered such qualifying circumstance,
and in such case vessels are required to
wait their turn to discharge without de-
murrage for the delay so caused. Held,
that such custom was a reasonable one
within reasonable limits, and under ordi-
nary circumstances, and that a vessel
loaded with lumber was not entitled to
demurrage because of a delay of 15 days,
caused by so waiting her turn to dis-
charge, it not appearing that the wharf
was too small for the ordinary business
of the owner, nor that he willfully or
negligently permitted a large number of
vessels to collect for discharging at the
same time. The Viola, 90 Fed. 750.

47. Contract prevails over usage. — Hol-
man v. Cans Steamship Line, 186 Fed.
96, 108 C. C. A. 208.

48. Judgment, Moore & Co. v. United
States (U. S.), 38 Ct. CI. 590, reversed
in 25 S. Ct. 202, 196 U. S. 157, 49 L. Ed.

§§ 4369-4370 carriers. 3966

§ 4369. Demand for Demurrage. — A provision of a charter party that
the charterer shall pay demurrage "day by day" for detention of the vessel
through his default does not require the owner to demand demurrage at the end
of each day.^^

§ 4370. Rate and Amount. — Special Provision of Charter Party. — A

special provision of a charter party that the freight on the dressed lumber shipped
should be subject to a deduction of one-fifth can not extend to the construction
of maritime rules relating to demurrage, so as to entitle the consignee to a de-
duction in measurement for dressed lumber in computing the demurrage due,
except on clear evidence that it was so intended.^*'

Agreed Rate for Other Days. — A rate of demurrage agreed upon in a
charter party for a certain number of demurrage days will be adopted by the
court as the measure of damages for further detention of the ship in the ab-
sence of other evidence, but it is open to either party to show that it is not the
true measure.^^

Agreed Rate for Other Vessels. — Where there is an agreed rate of demur-
rage for a class of vessels to which an injured vessel belongs, it may be taken as
the basis for computing the damages recoverable for the delay while she was
being repaired. •^-

Bill of Lading Different from Original Contract. — Where libelant con-
tracted to transport coal for respondent consignee, who was the owner, under a
verbal agreement as to the terms of freight, and that the demurrage rate should
be a certain amount per day. and libelant did not call respondent's attention to
the fact that the shipper had inserted in the bill of lading a provision for de-
murrage at a certain rate a ton of cargo for each day's detention, until after the
coal had been delivered, and respondent did not discover such change until de-
livery had been completed, the shipper having no authority to make a new con-
tract for respondent, the latter w^as liable for the demurrage only at the rate
specified in the original contract. ^^

Rules of Maritime Association of Port. — Under a charter fixing the rate
of demurrage to be paid by the charterer at "customary" dollars per day, the
rate recoverable for delay in discharging in New York is not governed by the
rules of the maritime association of the port, in the absence of proof that the
rate thereby fixed is the customary rate.^^

Earnings of Vessel. — The measure of damages for detention of a vessel,
in loading or unloading, beyond the time stipulated in her charter, is the probable
net earnings of such vessel during the period of her detention, and an inquiry
into a subsequent period is inadmissible.^^ Where no rate of demurrage is
fixed by the bill of lading, the amount may be computed by dividing the gross
freight earned on the voyage by the number of days it should have taken, and
multiplying the quotient by the number of days she was delayed, making proper
additions or deductions for any difference in her expenses during the time of
such delay.^*^

49. Demand for demurrage. — Washing- 54. Rules of maritime association of
ton Marine Co. z.<. Rainier Mill, etc., Co., port. — Randolph v. Wiley. 118 Fed. 77.
19S Fed. 142. 55. Earnings of vessel. — Huron Barge

50. Rate and amount. — Bowen v. Sizer, Co. v. Turney, 79 Fed. 109.

93 Fed. 227. In the absence of contract, the charter

51. Agreed rate for other days. — Dewar price per day of a vessel under a time
V. Mowinckel, 179 Fed. 355, 102 C. C. A. charter is not the measure of demur-
539. rage recoverable for delay in discharging

52. Agreed rate for other vessels. — cargo taken by the charterer for another.
Thompson ?'. Winslow. 130 Fed. 1001, af- but rather the probable net earnings of
firmed in 134 Fed. 546, 67 C. C. A. 470. the vessel during the time lost in the

53. Bill of lading different from original usual course of its employment. United
contract. — Decree 125 Fed. 432, affirmed States Shipping Co. v. United States, 146
in Burns v. Burns, 131 Fed. 238, 65 C. C. Fed. 914.

A. 224. 56. Tweedie Trading Co. v. Strong, etc.,



§§ 4370-4371

Delay Proximate Cause of Damage.— Where it does not appear that the
fouhng of a vessel's bottom was caused by the harbor in which she was de-
tained, the owners can not recover for it in addition to demurrage.^'

Remote and Speculative Damages. — To lose an opportunity to carry a
■cargo for other persons is remote and speculative, and not direct, damages in a
•case of a vessel's detention. ^^

Discharging in Turn. — Where other vessels were given precedence in dis-
charging over such schooners in violation of their bills of lading, they were en-
titled to be compensated in demurrage only at the rate provided in the contract,
regardless of the number of the vessels so given precedence which were discharg-
ing at the same time.^^

Power of Master to Settle.— Where a charter party provides a liability
for demurrage for delay in unloading at a foreign port, which is within easy
•cable communication with the owner, the master can not settle the claim for
such demurrage for less than the sum due/'*^

Acceptance of Demurrage under Protest. — The acceptance by a master
■of demurrage under protest leaves the settlement of the amount rightfully due
an open question, and the owner is entitled to urge his claim in accordance with
liis own views, without regard to the grounds of the master's protest.^'i

§ 4371. Lay Days.— Vessel at Wharf.— Where a contract of carriage re-
quires a vessel to discharge her cargo at a specified wharf, lay days for dis-
charging do not commence to run until she obtains a berth at such wharf, unless
wrongfully prevented by the shipper.^^ i^^nder a bill of lading requiring a vessel
to deliver a cargo of coal at a specified dock, the voyage is not completed, and

Co., 195 Fed. 929. reversing decree 157
Fed. 304.

Where a vessel, after she was loaded
and ready to sail, with full crew on board,
was detained through the fault of the
subcharterer, who was not bound by the
stipulations of the original charter as to
rate of demurrage, and there is no evi-
dence as to her future employment or
ability to obtain it, but her gross yearly
earnings are shown, such earnings will be
considered, together with the demurrage
stipulated for in her charter, in fixing the
amount of damages recoverable for the
delay. Keyser & Co. v. Jurvelius, 122
Fed. 218, 58 C. C. A. 664.

57. Delay proximate cause of damage.
— Maday z'. United vStates (U. S.), 43 Ct.
CI. 90.

58. Remote and speculative damages.
— Ataday v. United States (U. S.), 43 Ct.
CI. 90.

59. Discharging in turn. — Ross v. Cargo
of 3,408 Tons of Pocahontas Coal, 165
Fed. 722.

60. Power of master to settle. — Randall

■V. Brodlicad, 70 N. Y. S. 43, 60 App. Div.

61. Acceptance of demurrage under pro-
test. — Holland v. Gulf vSteamshipping Co.
V. Hagar, 124 Fed. 460.

62. Lay days. — Tweedie Trading Co. v.
Barry, 205 Fed. 721, 124 C. C. A. 15, re-
versing decree 194 Fed. 286.

Where a contract of carriage requires
the vessel to discharge her cargo at a
specified wharf, lay days for discharging

do not commence to run until she obtains
a berth at such wharf. Tweedie Trad-
ing Co. V. Barry, 194 Fed. 286.

A schooner was chartered to carry a
cargo of sulphur from Sabine Pass, Tex.
The charter provided that lay days for
loading should commence "from the time
the A'essel is ready to receive * * *
cargo and notice thereof is given. * * *
Vessel to take turn in loading * * *
if required." The latter clause was writ-
ten in, while the former was in the
printed form. Such provisions were ex-
pressly called to the attention of the
owner's agents, who also knew that the
charterer was chartering other vessels,
and that it had been one loading berth
at Sabins Pass. When the schooner ar-
rived for loading and gave notice of her
arrival, there were other vessels ahead of
her, and she was obliged to wait her turn.
Held, that her lay days did not com-
mence until she received her berth; there
l)eing no unnecessary delay. Union Sul-
phur Co. V. Percy, 180 Fed. 1. 103 C. C.
A. 355, reversing decree 173 Fed. 534.

Under a charter party requiring the
charterer to discharge the vessel at New
York with "customary dispatch" the lay
days for discharging began to run when
the vessel reached the berth designated
by _ the charterer, although she was
obliged to wait her turn to enter, there
being no proof of any custom of the port
to require her to wait her turn or that
the charterer should be allowed any par-
ticular time in case the berth was full.
Swan V. Wiley, etc., Co., 161 Fed. 905.

S 4371 CARRIERS. 3968

the lay days for discharging do not commence to run, until she reaches such
dock and is in condition to discharge, unless she is prevented from reaching it
through the active fault of the charterer or consignee.^^

Ready to Load or Discharge.— Where a charter required the ship to re-
ceive cargo "from the charterer's shippers," and provided that lay days should
not commence until she was "in every respect ready to load or discharge," such
days for loading do not commence to count until she is not only ready to load,
but is at the berth where the shipper's cargo is lying, where she is delayed in
reaching such berth by the rules of the port, and without fault of the charterer.^^

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 161 of 214)