Thomas Johnson Michie.

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

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Upon Entry at Custom House.— A provision in a charter, "Lay days not
to commence to count until 12 o'clock noon after the steamer is entered at the
custom house and in every respect ready to load." though negative in form, is
positive in effect, and means that the lay days shall commence to count at that
lime; and where, by a further clause, the ship was reciuired to load "when,
where, and as directed" by the charterer, and she was ready on her part, and her
master had given the required notice, the lay days commenced to count from
the succeeding noon, and the responsibility for a further delay in commencing
to load rests upon the charterer, although caused by a custom of the port which
compelled her to await her turn to get to the berth assigned her.'^^

Delivery at Different Ports.— Where two bills of lading were given re-
quiring delivery of part of a cargo at different ports, they constitute independ-
ent contracts, and hence the consignee was entitled, under maritime rule 4, to
one full calendar day after the vessel's arrival at the most distant port to fur-
nish a berth for discharge before being liable for demurrage.f'«

Necessity for Notice.— A notice of readiness to load or discharge required by
a charter party to start the running of the lay days is unnecessary and may be
considered waived, where the charterer was ready and the work was commenced

at once.''"

Ready to Load or Unload.— Under a provision of a charter party that lay
days for loading should commence on notice of readiness by the master, to
render such notice effective to start the lay days to running the vessel must
have been at her wharf, ready to load, when it was given.cs

63. Decree Ionia Transp. Co. v. Two 67. Necessity for notice.-Washington
Thousand Ninety-Eight Tons of Coal. 128 Marine Co. v. Ranuer Mill, etc., Co., 19S
Fed. 514. affirmed in 135 Fed. 317, 67 C. Fed. 142. i j t^ . i ,.
Q ^ Q~l 68. Ready to load or unload. — Dantzler

Wharf owned by charterer.— A schooner Lumber Co. r. Churchill. 136 Fed. 560,
was under charter providing that her lay days 69 C. C. A. 270. ^ , , . ,
for loading should commence "from the A charter party fixed the demurrage for
time the vessel is ready to receive * * * each days detention of the vessel by the
cargo and notice thereof is given. * * * default" of the charterers or their con-
Vessel to take turn in loading * * * signees. It made no provision for dis-
if required." She arrived in the loading patch" or "quick dispatch in loading or
port and gave notice of her readiness to discharging the cargo, but fixed the mini-
receive cargo. The only berth fitted to mum amount to be loaded or discharged
load her cargo was owned and controlled each day, and provided that the lay days
by the charterer, and she was required to should commence "from the time the
await her turn, which involved a delay captain reports himself ready to receive
of several days. Held, that her lay days or discharge cargo. Held that under
commenced from the time she arrived and the later provision the lay days did not
gave notice. Percv v. Union Sulphur Co., commence until the vessel was ready and
173 Fed 534 ' i" position to receive or discharge cargo,

64. Ready to load or discharge.— Bacon and that the contract did not bind the
V. Ennis, 110 Fed. 404, decree reversed in charterers for demurrage for a delay ot
Carbon Slate Co. v. Ennis, 114 Fed. 260, the vessel in obtaining a wharf at which
52 C C A. 146 to discnarge. notwithstanding a notice ot

65. 'Upon 'entry at custom house.— De- readiness to discharge from the captain.

cree Bacon v. Ennis, 110 Fed. 404, re- where, as the owners knew or should have

versed in Carbon State Co. v. Ennis, 114 known, all the wharves at the port of des-

Fed ''60 59 C C A 146 tination were public, and under the ex-

66. "Delivery 'at different' ports.-Bowen elusive control of a harbor master, who

V. Sizer 93 Fed. 227. directed the movements and position ot




Same — Whether in Berth or Not.— A provision of a charter party that
lay days for unloading siiall commence "when steamer is ready to unload and
written notice given, whether in berth or not," must be given effect ; and delay
in waiting for a berth is chargeable against the charterer, although the lay
days do not commence merely by notice given of the steamer's arrival in port,
but onlv when she is actually ready to unload, so far as she can be made so by
those in charge.*''^

Sundays and Holidays. — Where a Sunday intervenes between the expira-
tion of the lay days for discharging a vessel and the time when the discharge is
completed, it is to be counted as a day of detention.'" The object of providing
in a charter party for one clear day after notice of the readiness of the vessel to
receive cargo before the lay days shall commence is to allow the charterer such
time for preparation, and, unless made so by the terms of the charter or custom
of the port, Sunday is not to be counted as such a day, and, where notice of
readiness is given on Saturday, the lay days do not commence until Tuesday."^
Under a charter party stipulating that lay days shall count according to the
custom of port, and that twenty running days, Sundays and holidays excepted,
shall be rdlowed for loading and discharging, the holiday time, as fixed by
the statute of port of loading, making Saturday afternoon a holiday, will not be
included in the running days J- A charter party providing for the allowance
of a designated number of running days, Sundays and holidays excepted, for
loading and discharging, is not affected by a statute of the country of the port

all vessels thereat, and by the rules of the
port each vessel was required to wait
her turn. Flood v. Crowell, 92 Fed. 402,
34 C. C. A. 415.

69. Whether in berth or not. — New Ru-
perra Steamship Co. r. 2,000 Tons of Coal,
124 Fed. 9.37, affirmed in Niver Coal Co.
V. Cheronea Steamship Co., 142 Fed. 402,
73 C. C. A. 502, 5 L. R. A., N. S., 126.

While under the modern rule, which
gives the charterer of a vessel for the
carriage of coal, ore, grain, or other like
commodities, for which special facilities
for loading and discharging are in gen-
eral use, the option to select the berth at
which the vessel shall load or discharge
within reasonable limitations, and which
sul)jects her to the necessary delay in
awaiting her return without demurrage,
the customary charter provisions that lay
days shall commence when the vessel is
"ready to unload and discharge" and "writ-
ten notice is given" have no effect, ex-
cept from the time the vessel reaches the
precise berth where she is ordered; but
a provision in a coal charter that the time
for discharging should commence when
the vessel was ready to unload and writ-
ten notice given, "whether in l)erth or
not," was evidently intended to relieve
the vessel from the burden of such rule,
and the clause must be given effect in
accordance with its plainly expressed
meaning, and the lay days for discharging
commenced when the vessel gave notice
that she was ready to unload and was
ready, whether at her designated berth or
not. Decree, New Ruperra Steamship Co.
V. 2.000 Tons of Coal, 124 Fed. 937, af-
firmed in Niver Coal Co. t'. Clieronea
Steamship Co., 142 Fed. 402, 73 C. C. A.
502, 5 L. R. A., N. S., 120.

70. Sundays and holidays. — Washington
Marine Co. v. Rainier Mill, etc., Co., 198
Fed. 142.

71. The Assyria, 98 Fed. 316, 39 C. C.
A. 97.

72. Holidays. — A charter party provided
for loading or discharging according to
custom of port, and allowed 20 running
days, Sundays and holidays excepted, for
loading and discharging. A statement of
the lay days used in loading was sub-
mitted to the master by the charter,
which concluded with the words, "No-
vember 14, steamer cleared; does not
count according to custom of port." The
master signed the statement, adding,
"Written under protest, on account of
Saturday being counted a half day." He
testified that all he knew about the cus-
tom as to clearance day was derived from
the agents of the charterer. Held, that
the failure to protest as to the date of
clearance did not conclude the owner's
contract rights. Holman v. Cans Steam-
ship Line, 186 Fed. 96, 108 C. C. A. 208.

A provision of a charter party that "hol-
idays" should not be counted as lay days
for loading must be construed in ac-
cordance with the presumed intention of
the parties to exclude only such days as
were holidays in the usual and ordinary
sense, which were customarily observed
by a cessation of work, and did not en-
title the charterers to exclude a series
of holidays subsequently appointed by
the Governor on account of a financial
panic for the sole purpose of deferring
the maturity of financial obligations, and
which were not observed, nor intended ta
be observed, by a cessation of labor or
traffic. Kerr z'. Schwaner, 177 Fed. 659,
101 C. C. A. 285.

§ 4371



of discharge, which provides that lay days begin to run from second weekday
morning after notice has been given on a Sunday or holidayJ^

Rainy Days. — A provision of a charter party for the carriage of a cargo of
wheat to be loaded at Portland, Or., that "rainy days" should not be counted
as lay days for loading, is presumed to have been made with reference to the
estabHshed rule of that port and excludes only days on which, on account of
rain and v/ith reference to the facilities of the port in the way of covered
docks, etc., for the protection of vessels while loading, cargo could not be safely
and conveniently loaded.'^^

Strikes of Employees.— Where a charter provided that a certain number
of working days should be allowed for loading the vessel, detention caused by
strikes or "estoppage of labor" not included, days on which those loading the
vessel refused to work owing to storms, and days when the labor organizations
withdrew their members to attend a funeral and for the celebration of Labor
Day, should not be excepted from the days allowed for loading; all days save
Sundays and legal holidays being working days, and there having been no forced
stoppage, within the meaning of the charter party."^

Days Allowed for Loading.— Where a charter provided that a vessel should
proceed to Pensacola and there load, the cargo to be delivered alongside, and that
14 working days should be allowed the charterer for loading the vessel, a con-
tention that under the terms of the charter party the duty of the charterer ^yas
€nded when the cargo was delivered alongside, and that all delays in loading
and stowing the cargo were at the risk of the shipowner, was without merit.'^c

Days Lost in Putting Up Gear of Vessel.— Days lost in putting up the
gear of a vessel, preparatory to taking her cargo, being, under the terms of the
charter party, a part of the charterer's duty, should be included in the lay days.'"

Time Designated by Charterer. — Where respondent, the owner of a cargo
of coal to arrive, contracted with libelant to receive the same alongside and
transport it to another port, and also notified libelant to have his barges ready
on a certain date when the cargo was expected, libelant was entitled to compute
lay days from that date, and to demurrage for the excess after the lay days
expired before the cargo arrived and his barges were loaded.''^

Delay Caused by iSTegligence of Charterer.— Where charterers neglected
to advise their agents at the port of destination of their agreement to attend
to the entering of the ship at the custom house upon her arrival, by reason of
which such agents refused to act, and a delay of three days was caused in
having the ship entered, the owners were entitled to include such drivs m the
lay days allowed by the charter for discharging."^ 9 Under a charter of a vessel
to carry a cargo of wheat to be loaded by the charterers within a time specified,
which contained a provision that lay days for loadin? should not b^ rounted
during any time the bringing of the cargo to the port of loading was delayed by
railroad accidents, or any other hindrance beyond the charterer's control, where
the charterers loaded only with a particular grade of wheat which they had with
other grades stored on lines of a railroad company, they were not entitled to the
benefit of such provision, on the ground that the company did not furnish
sufficient cars to bring in that particular wheat within the time fixed by the
charter, when their notice to the company was only to furnish cars generally,

73. Holman v. Gans Steamship Line, 77. Days lost in putting up gear of ves-
108 C. C. A. 208, 186 Fed. 96. sel.-Wnod J'- >eyser, 84 Fed. 688 de-

74. Rainy days.-Kerr v. Schwaner, 101 cree affirmed in 87 Fed. 1007. 31 C. C.
C C. A. 285, 177 Fed. 659. ^-^gf '^.^^ designated by charterer.-

75. Strikes of employees.— Hagerman v. Cnunan 7' Weaver Coal, etc.. Co.. 128 Fed.
Norton, 105 Fed. 996, 46 C. C. A. 1. oqs.

76. Days allowed for loading. — Hag- 79. Delay caused by negligence of char-
crman v. Norton. 105 Fed. 996, 46 C. C. terer.— Hagar v. Elmslie, 107 Fed. 511, 46
A. ]. C. C. A. 446.

3971 CARRIAGE OF PROPERTY. §§ 4371-4373

and it did furnish sufficient to bring in double the quantity required, but in part
of different grades, which the charterers loaded on other vessels. ^^^

Where Charterer Fails to Designate Place of Discharge. — Where by
the terms of a charter party the charterer is to name the berth for discharging,
he should be ready to receive the cargo when the vessel is ready to deliver, even
if she can not do so, either because he has not named the berth, or because he
has named a berth to which she can not get, or to which she is prevented from
getting through no fault of hers.^^ Where the consignee of a ship's cargo is
given the right by the charter party to designate the place of discharge at the
port of delivery, either at a safe wharf or alongside, it is his duty to exercise
such right within a reasonable time after notice of the arrival of the vessel at
the port, and his failure to do so is a waiver of the right, and entitles the ship
to consider her voyage at an end, and give notice of her readiness to discharge,
which will start her lay days to running.^-

§ 4372. Indemnity. — If the master, after beginning to unload, intends to
discontinue until security is given for demurrage, he should give such timely
notice thereof as will enable the charters to furnish the required security with-
out delaying the progress of the work, or adopt a means by which prompt dis-
charge can be made and the lien of the vessel retained. ^^

§ 4373. Waiver and Release of Demurrage. — Where a charter expressly
provides the lay days for loading and discharging, and fixes the amount of de-
murrage to be paid for overtime consumed by the charterer, the owner can not
be held to have waived such provision, except upon clear evidence.^"* An agree-
ment between a master and a charterer that the latter shall mail a check to the
master for the freight earned at once on being advised that the discharge of
cargo has been completed to another port to which the vessel was to proceed is
a waiver of strict performance of a provision of the charter party making the
freight due at once on discharge, and where the check was so mailed on the
day the discharge was completed, and was received and collected by the master,
he can not claim demurrage for the time between the discharge and payment,
nor can he maintain a libel against the cargo for the freight, filed in the mean-
time. ^^

Failure to Protest against Delay. — Wliere a shipper bound himself to
unload in twenty days after notice of the arrival of the vessel and to pay de-
murrage, and the master gave notice of the vessel's arrival and his readiness to
deliver, the failure to protest against the shipper's delay was not evidence of an
assent to the delav : no protest under the agreement being necessary.^*^

A receipt in full for all claims under a charter executed by a master at the
port of discharge on payment to him of only the freight due does not release the
charterers from a claim for demurrage which was also made at the time by the

80. Kerr v. Schwaner, 101 C. C. A. 285, from mouth of Newtown creek and re-
177 Fed. 659. turn, which does not bind the charterer

81. Where charterer fails to designate to have her discharge at a berth in such
place of discharge.— The Edward T. creek, but merely gives him the option
Stotesbury. 187 Fed. Ill, 109 C. C. A. 31, to do so. The Edward T. Stotesbury, 187
reversing decree Eaton v. Cargo of Lum- Fed. Ill, 109 C. C. A. 31.

ber, 180 Fed. 51.3. 82. Dewar v. Mowinckel, 179 Fed. 355,

Where a charter party required deliv- 103 C. C. A. 539.
ery of the cargo of himl)er at the port 83. Indemnity.— Ten Thousand & Eighty-

of New York, and provided that the lay Two Oak Ties, 87 Fed. 935.
days for discharging were to begin when g^^ Waiver and release of demurrage.

captain reports \ns vessel ready to dis- _Hcnningscn v. Watkins, 110 Fed. 574.
charge cargo in New York Harbor, he ° ^

may give the notice when ready in such 85- The Cargo, 122 Fed. 881.

harbor, notwithstanding a further provi- 86. Failure to protest against delay.—

sion that the charterer shall pay towage Brown v. Ralston, 25 Ya. (4 Rand.) 504.

4 Car— 55

§§ 4373-4376 carriers. 3972

master, and rejected, where the master was compelled to give such receipt in
order to collect the freight, and did so under protest.'^^

The delivery of cargo and collection of freight money is not a waiver
of a claim for demurrage. ^^

§ 4374. Lien. — The vessel has a lien on the cargo for demurrage, enforce-
able in admiralty. ^^

Cargo Damaged. — The right of a vessel carrying cargo "free of handling"'
to a lien for demurrage for delay of the consignee in beginning to discharge is
not attected by the fact that the delay arose from the refusal of the consignee
to receive the cargo because damaged in transit by an excepted peril, and the
fact that during the delay the consignee was negotiating with the owner to
purchase tlie damaged cargo at a reduced price. ^*^

Effect of Delivery of Cargo. — When cargo has been absolutely delivered
to the consignee before sen-ice of process thereon, the lien for demurrage is
lost.^i^ Discharging cargo after giving notice of a claim for demurrage is not a
waiver of the lien, where such cargo is placed on the dock, and kept separate
from other goods, so as to be capable of identification. ^-

§§ 4375-4378. Actions— § 4375. Libel.— A claim in a libel for demur-
rage should be specific, stating the number of days and the dates for which the
demurrage is claimed. ^^ A libel for demurrage, which alleges merely that the
goods were consigned to respondent and received by libelant for delivery to
him, does not state a cause of action, the rule being that a mere consignee, who
is not the shipper or carrier of the goods, nor interested therein, is not ordinarily
liable for demurrage. ^^

A libel which alleges that libelant hired a lighter to persons engaged in
furnishing a cargo of lumber to be loaded on a vessel, and that the lighter was
detained by the master of the vessel, not on account of the hirers, but for the
benefit of the vessel, for fourteen days after the expiration of the time allowed
by the custom of the port for unloading it, but which contains no avennent as to
whose duty it was to unload it, and avers no contract with the vessel or her
master, is insufficient to state a cause of action in rem against the vessel for the
demurrage. ^5

§ 4376. Defenses. — A provision of a charter allowing the charterer a cer-
tain number of lay days for loading and discharging, and requiring the pay-
ment of demurrage for any additional time taken, is an absolute and uncondi-
tional engagement on the part of the charterer, who can not be relieved there-
from except on the ground that the delay was due to the fault or negligence of
the owner, or those for whom he is responsible ; and such fault or negligence is
an affirmative defense in a suit to recover the stipulated demurrage, the burden
of pleading and proving which rests upon the charterer. °^ Under a contract for

87. Durchman v. Dunn. 101 Fed. 606. 90. Cargo damaged. — Pioneer Fuel Co.

88. Judgment, Elphicke v. Iroquois Fur- v. McBrier, 84 Fed. 495, 28 C. C. A. 466.
nace Co.7 102 111. App. 138, affirmed in 91, Effect of delivery of cargo.— Two
65 N. E. 784. 200 111. 411. Hundred & Sixteen Loads & Six Hun-

89. Lien.— Warehouse, etc.. Supply Co. jred & Seventy-Eight Barrels of Ferti-
V. Galvin, 71 N. W. 804, 96 Wis. 523. li^er, 88 Fed. 984.

Where, by a contract for the purchase g^' pj^^gg^ ^^^^ Co. v. McBrier, 84 Fed.

of coal. It was to be shipped by the sei- ^g^ ''8 C C A 466

lers from England and delivered to the es.^Actions.- The Cargo, 122 Fed. 881.

purchaser at \ew York, the sellers were 94.'Merritt, etc.. Wrecking Co. v. Voge-

authonzed to contract for the carriage of „^^^ .,„„ -p^ , ~„^

the coal either as owners from whom the ^, t^ , ata, ^ , ,i t- j

title had not passed or as agents for the 95- Dunwody ^'. The Campbell, 106 Fed.

purchaser, and by such contracts to sub- ^"^^- '^^ ^- ^- ^- '**''■*•

ject the coal to a lien for demurrage. 9S. Defenses. — Hagar v. Elmslie, 107

Taylor v. Fall River Ironworks, 124 Fed. Fed. 511, 46 C. C. A. 446.


3973 CARRIAGE OF PROPERTY. §§ 4376-4378

the carriage of a number of cargoes of coke between certain ports by two ves-
sels, which provided that the vessels should be kept a regular period apart as
much as possible, where the vessels were accepted and loaded when tendered,
and the freight was paid, without any protest or objection, although they were
not kept a regular period apart, and no damage is shown to have resulted, the
shipper can not set up such breach of the contract in defense to an action for
demurrage. ''"

Smaller Claim Presented. — Complainant, on a libel for demurrage, is not
precluded from proving the exact loading and discharging times by having pre-
viously presented a bill for a smaller amount. ^^

Breach of Charter Party. — Where two vessels, chartered to carry a number
of cargoes of coke between two ports, were accepted and loaded under the
charter when tendered, and the freight was paid without objection, the char-
terer can not set up a claimed breach of the charter in failing to keep the vessels
at regular intervals apart as a defense to an action for demurrage for delay in
loading where such alleged breach did not cause or contribute to the delay or
otherwise cause damage to the charterer.^^

§ 4377. Presumptions and Burden of Proof. — In the absence of proof
to the contrary, it will be assumed that the rate of demurrage charged by a car-
rier of an interstate shipment is in accord with that established by law.^

Burden of Proof. — The burden is on him who seeks to recover damages for
the failure to discharge a vessel in the customary time to prove that the charterer
did not exercise reasonable diligence to discharge her under the actual circum-
stances oi the particular case.- But proof that the vessel was delayed in unload-
ing beyond the customary time for discharging such cargoes at the port of her
delivery throws upon the charterer the burden of excusing the delay by proof
of the actual circumstances of the delivery and his diligence thereunder.^

§ 4378. Limitations and Larhes. — Time does not begin to run against a
suit for demurrage for delay in discharging until the lay days allowed have

97. Atlantic, etc., Steamship Co. v. Gug- owner has the burden of proving either
genheim, 123 Fed. 330, decree affirmed in that the vessel was not loaded or dis-
147 Fed. 103, 77 C. C. A. 329. charged in accordance with the custom

98. Smaller claim presented. — Eikrem v. of the port, or that there was unneces-
New England Briquette Coal Co., 125 sary and unreasonable delay through the
Fed. 987. fault or negligence of the charterer. Wil-

99. Breach of charter party. — Decree liscroft v. Cargo of the Cyrenian, 123 Fed.
123 Fed. 330, affirmed in Atlantic, etc., 1G9.

Steamship Co. v. Guggenheim, 147 Fed. A counterclaim by respondent for fail-

103, 77 C. C. A. 329. ure to receive bricks shipped promptly

1. Presumptions and burden of proof. on their reaching the port of shipment
— Barker-Bond Lumber Co. v. Pennsyl- will be dismissed, where respondent did
vania R. Co., 131 N. Y. S. 624, 74 Misc. not show any agreement to receive, ex-
Rep. 63. cept when formal declarations were made

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 162 of 214)