Page images

the charterer; he is not obliged to deliver the cargo to or receive it from the boat upon the demand or request of the captain, but may suit his own convenience for doing this, provided he does not exceed the specified number of days allowed him.

But if he detains the vessel longer he will have to pay demurrage for such excess of time at whatever rate per day the charter party stipulates. 2

Such days allowed for a ship to load or discharge, in the absence of any stipulation in the charter party or otherwise, as to their commencement, or as to the time to be allowed for loading or unloading, commence to run and are to be reckoned from the

1. Poland v. Maryland Coal Co., 14 20th, and on Monday, the 22nd, she beBlatchf. 519; 8 Ben. 347.

gan unloading her cargo, and was Where the consignee was to have cleared on the 27th. It seems that actwenty running days after the vessel ar- cording to the factor's certificate she rived at the port of her destination for was a metered vessel, and that if she unloading, and if detained longer he had not been on the metered list she was to pay the owners $50 per day de- could have proceeded to the pool at murrage for every additional day he once and would not have been obliged detained her. The consignee detained to be entered for a meter and would not the vessel longer than the stipulated have sustained the delay by waiting until lay days, and while she was held on the 20th before it was her turn to go to demurrage she was lost with the cargo. the pool. It also appeared that occa

. Held, that as the consignee did not un- sionally it was the practice for the factor load and discharge the vessel within not to enter such vessels in the meter's the specified time, and there was no im- list, and that it was desirable that the possibility to prevent him from so cargo should be sold subject to metage doing, and that the loss occurred with- by a sworn meter. Held, that the vesout the default of the master or mari- sel did not arrive at her place of disners, the owners were allowed to re- charge until the 20th, and that the lay cover freight as well as the demurrage. days did not begin to run until then, Brown v. Ralston, 9 Leigh (Va.) 532; and that the owner could not recover s. C., 4 Rand. 504.

demurrage. Kell v. Anderson, 10 M. Under an

agreement between a & W. 498; 12 L. J. Exch. 101. charterer and the owners the charterer It was stipulated in a charter party was to have twenty-five days for un- that a vessel was to go to Plymouth, loading. The boat arrived and there not higher than S or N, or as near being opportunity to unload the captain thereunto as she can safely get, and deoffered to discharge the cargo. The con- liver the cargo, having certain lay and signee declined to accept the offer, and, demurrage days. When she arrived in the meantime, but within the twen- the consignee ordered her to proceed to ty-five days, the boat was lost by storm M, it being an ordinary landing place, in the harbor. Held, that there was no and not so high as S or N. The tides freight earned, as the consignee had the were neap, and she went as near M as right to receive the goods any time he possible in that state of the tide. She chose within the twenty-five days. La- was obliged to lay on the sand for sevcombie v. Waler, 4 Binn. (Pa.) 299. eral days before the tide became high

2. Brown v. Ralston, 9 Leigh (Va.) enough to proceed to M. Held, that 532; 4 Rand. 504; Rowe v. Smith, 10 the naming of any landing-place within Bosw. (N. Y.) 268.

the port of Plymouth was optional with According to a charter party the the consignee, provided he kept within charterers or their assigns were to have the limits stated in the charter party five working days in which to receive and that the lay days did not begin unthe cargo. She arrived in port on the til the ship reached the place thus 9th of March, the cargo was sold on designated, and the delay in reaching it the roth, and the vessel entered by the was caused only by the ordinary course charterers for a meter. She was not of navigation in a tidal harbor. Parker ordered by the harbor master to pro- v. Winlow or Winlo, 7 El. & Bl. 942; ceed to the pool for unloading until the 4 Jur., N. S. 63; S4 L. J., Q. B. 49.

[ocr errors][ocr errors]


[ocr errors][ocr errors]

time she arrives at the usual place of discharge in the port and
not when she first arrives at the port. If the loading or unload-
ing place is within a dock they begin to run from the time she
enters the dock, and not from the time she reaches some particu-
lar place in the dock to receive or discharge her cargo.2

In this case the only ground for holding the charterer or con-
signee liable for demurrage is some fault on his part by which
the loading or receiving of the cargo is delayed longer than is
necessary. 3 Each party must use reasonable dispatch in perform-
ing his part of the contract; for this reasonable time will always

1. Breeton v. Chapman, 7 Bing: 559; According to a charter party a vessel Rowe 7. Smith, 10 Bosw. (N. Y.) 268; was to proceed direct to any Liverpool Kell v. Anderson, 10 M. & W. 498; 12 L. or Berkenhead dock, and there in the J., Exch. 101; Cross v. Beard, 26 N. Y. usual and customary manner take on a S5; Weaver v. Walton, i Flip C. Ct. 441; full and complete cargo of coal, and that Manson 7. New York N. Ìl. & II. R. she should be loaded at the rate of one Co., 24 Blatchf. C. Ct. 448; McIntosh hundred tons per working day, but that 7'. Sinclair, 11 Ir. C. L. 456; Alward v. loading should not commence until after Smith, 2 Low. 192; Parker v. Winlow, July 1st. She was ordered to the Wel8 El. & B. 942; Hodgdon v. R. R. Co., lington dock (a Liverpool dock) by the 46 Conn. 277.

charterers, and was ready to enter it on This is the case when the cargo is July 3rd, but was not permitted to enter brought by a general ship. But it may the dock until July 11th, because the be otherwise when the charterer or coal agent whom the charterers had consignee assumes all the obligations of employed to furnish the

the coal had the charter party. Gronstadt v. Whitt- three vessels at that time inside the hoff, 15 Fed. Rep. 265.

dock and

two others booked to If a vessel wishes to protect herself enter. The dock regulations would not against delays not arising from the allow a coal supplier to have more than fault of the shipper or his agents, she three ships inside the dock at the same must do so by stipulating for a stated time, it being the usual custom to emperiod of discharge after arrival or for ploy coal agents to furnish cargoes, and dispatch. Fish v. 150 Tons of Brown it appeared that the charterers had not Stone, 20 Fed. Rep. 201.

made an unreasonable selection of the
The charterer is not liable for deten- agent. Although she entered the dock
tion caused by the vessel having to wait July 11th, her turn to proceed to the
her turn to unload when the goods are spout to receive the coal did not arrive
such that they have to be discharged until July 23rd and loading began the
into bonded warehouses. Rodgers v. day after. It also appeared that it was
Torresters, 2 Camp. 483; Brumester v. the usual custom to load coal from the
Hodson, 2 Camp. 488.

spout, and also that it was not unusual
2. Rowe v. Smith, 10 Bosw. (N. Y.) to load from lighters. Held, that the
268; McIntosh v. Sinclair, 11 Ir. L. S. lay days began to run when she entered
456 Exch.; Cross v. Beard, 26 N. Y.89; the dock, and that they were not post-
Brown 2. Johnson, 10 M. & W. 331; poned until her turn arrived to go to
Kell v. Anderson, Id. 498; Nelson w. the spout. Tapscott 2'. Balfour, 42 L.
Dahl, 12 Ch. Div. 568; Gibbens v. Buis- J., C. P. 16; 8 L. R., C. P. 46; 21 W.R.
son, i Bing. N. C. 283; Balley v. De 245; 27 L. T., N. S. 710.
Arrogave, 7 A. & E. 919.

3. Fish v. 150 Tons Brown Stone, 20
When the delivery by the terms of Fed. Rep. 201; Hayden 7. Whitmore,
the charter party was to be made 74 Me. 230; Rodgers v. Torresters, 2
alongside the vessel within reach of her Camp. 483; Burmester v. Hodgson, 2
tackle and the consignee directed the Camp. 488; Henley v. The Brooklyn Ice
captain to take the vessel to a certain Co., 14 Blackf. c. Ct. 522; Schroll 7.
dock, the working lay days commenced Albany Iron and Steel Co., 101 N. Y.
from the time she was in readiness 602; Finney v. Grand Trunk Ry. Co.,
alongside the dock to discharge her 14 Fed. Rep. 171; The L. Z. Adams, 26
cargo. Rowe v. Smith, 10 Bosw. (N. Fed. Rep. 655; The Mary Riley z'. 3000

. Y.) 268.

Tons Railroad Ties (D.C., E. D., Pa...


[ocr errors]
[ocr errors][ocr errors]

be implied, and this is always a question for the jury to determine from all the circumstances legitimately bearing upon the case. 1

(6) When Specified in Charter.-If the parties stipulate as to when the lay days are to commence, or limit the time in which the loading or unloading or one of these operations is to be performed, they will be governed by such stipulation, and such limitation is construed in maritime law as a stipulation for the benefit of the ship, designed to cast upon the charterer or consignee all risk of detention beyond the stipulated period ;2 and if the stipulation is for the discharging of cargo, the lay days commence from the time she arrives at the port and notifies the consignee that she is ready to discharge, he is bound to find a suitable place of discharge, and is liable if, she is detained longer than the


38 Fed. Rep. 254; Sweeting v. Darthez, delay. Ford v. Coles worth, 39 L. Q.

. 14 C. B. 538; Eng. L. & Eq. 326; Harris B. 188; 18 W. R. 1169; 23 L. T., N. S. v. Dresman, Exch. 1854, 25 Eng. L. & Eq. 165; 5 L. R., Q. B. 544 Exch. Cham. 526; Clendaniel v. Tuckerman, 17 Barb. Where a bill of lading fixed no period (N. Y.) 184. If the vessel is unneces- for the discharge of the cargo, the only sarily delayed by the fault of the con- obligation of the consignee or his vensignee he is liable, although the charter dee was to use due diligence in procurparty does not contain an agreement ing a berth and to discharge, according for demurrage. The Norman, 16 Fed. to the custom of the trade. The Z. L. Rep. 879.

Adams, 26 Fed. Rep. 655. In the absence of express stipulation If no lay days are provided for in the it is the duty of the consignees to fur- charter party or bill of lading, and no nish within a reasonable time a suita- stipulation is made as to the time of ble place for her discharge, and also to unloading, the consignee will not be complete it within a reasonable time; held liable for delays occurring without and that the fact that a considerable his fault. The Glover, 1 Brown Adm. number of vessels consigned to the 166. charterers had arrived with cargoes But where a charter party did not about the same time and there was a stipulate a certain number of lay days delay in consequence in assigning her a at the expiration of which demurrage birth was a circumstance for which the was to run, yet it indicated the rate at ship owners were not responsible. It which the cargo was to be discharged, was a risk the consignees themselves to-wit: "Not less than one hundred took when they agreed to freight the tons per day.” The total tonnage of schooner. Esseltyne v. Elmore, 7 Biss. the cargo was 1,808 tons, and dividing (U. S.) 69.

this by 100 made nineteen working In the absence of any express agree days. The court held that this period ment for discharging, a vessel had to was fixed with as much certainty as wait its turn at a grain elevator, it being though nineteen working days had been the only one in the place. Held, that written in the charter party as the numthe consignees were not liable for the ber of lay days. Williams v. Theobald, detention. Finney v. Grand Trunk Ry. 15 Fed. Rep. 465; citing Sanquinetti v. Co., 14 Fed. Rep. 171.

P. S. Nav. Co., L. R., 2 Q. B. Div. 238. In the absence of any express agree

1. Cross v. Beard, 26 N. Y. 85; The ment the consignee is not liable for de- L. Z. Adams, 26 Fed. Rep. 655; Fish lay caused by the vessel waiting her V. 150 Tons Brown Stone, 20 Fed. Rep. turn to be unloaded at an elevator 201; Brown v. Certain Tons of Coal, 34 where it is the custom of the port that Fed. Rep. 913. all grain shall be unloaded at an eleva- 2. Fish 11. 150 Tons of Brown Stone, tor. Weaver v. Walton, i Flip C. Ct. 20 Fed. Rep. 201; Gronstadt v. Wit441.

thoff, 15 Fed. Rep. 265; Philadelphia Where it is impossible for the con- & R. R. Co. v. Northam, 2. Ben. I; signee to receive the cargo by circum- Cross v. Beard, 26 N. Y. 85; Sleeper stances over which he has no control v. Ping, 17 Blatchf. C. Ct. 36; Randall he is not liable to pay damages for the v. Lynch, 2 Camp. 352; Hayden v.

Whitmore, 74 Me. 230; Manson v. the vessel to put the barrels on the dock. New York N. H. & H. R. Co., C.C.D., The agent replied that he was willing Conn., 24 Blatchf. 448; 31 Fed. Rep. to do so if the owners would arrange 297; Tiis v. Byers, 34 L. T., N. S. with the dock owners to receive them 526.

there (the wharf owners having refused Where it was stipulated that a vessel to receive them on their wharf), and at was to load at a certain port and pro- the same time notified the owners he ceed to the port of destination, the lay should hold them responsible for detendays to begin on a fixed day in a cer- tion if they did not get the barrels out tain month, by common consent another by the night of the 29th. Nothing port for the loading was substituted. more was done by the owners until the Held, that the rest of the charter party morning of the zist, when they sent a was not changed and the lay days be- lighter and the barrels were delivered gan at the stipulated time fixed by the over. Her four days were occupied in charter party. Jackson v. Galloway, 5 delivering to the lighter. It was held Bing. N. C. 71.

that the ship owner was not in fault, Where the charter provided that the because in selecting a place for the delay days for discharge should com- livery of the cargo in conformity with mence from the time the vessel is the contract of the parties, he selected ready to discharge cargo, and written one that was not altogether convenient notice thereof is given to the charterer's for the barrel owners. That the lay agent, and it appeared that the char- days began to run after the ship reached terer had no agent at the port to the berth to which she was directed by whom such notice could be given, it the consignees of the rails, and that the was held that the charterer could not detention of the ship was caused by the avail himself of the absence of the writ- barrel owners' delay. The ship owner ten notice, because he was chargeable was allowed four days' demurrage. with negligence for having no agent to Gronstadt v. Witthoff, 21 Fed. Rep. whom the notice could be given. Hat- 253; 15. Fed. Rep. 265. ton v. De Belaunzaran, 26 Fed. Rep. 780. A ship was chartered to go to a cer

A charter party provided, among tain point and there load with timber. other things, that the cargo might con- The charter party provided that “from sist of empty petroleum barrels and the computation of time allowed for deiron rails, to be carried to New livering the cargo to the ship shall be York, and also provided that the cargo excluded any time lost by reason of should be discharged in the same berth drought.” It appeared that it was cuswhere the rails should be discharged. tomary to float the timber down to this The respondent's barrels were shipped point for shipment from the interior in under a bill of lading which, among the creeks and rivers, and that by reaother things, provided that the barrels son of an extraordinary drought the should be taken free from on board the charterers' timber could not be floated vessel in four running days with demur- down to this point, or at least necessirage at £10 per day for longer detention, tated transportation in such small and contained a clause, “all other quantities and with such delay the things as per charter party.” The vessel loading and shipping of timber at this arrived at the port of New York on May point, and that while a drought did af21st, 1880, and upon the request of the fect the interior creeks and rivers, it in owner of the rails went to the one ba- no wise affects the waters at the point sin to discharge her cargo, and not the booms where the timber was being able to reach the wharf, kept or the transportation of it from moored alongside another vessel. The the booms to the ship at anchor. Ileld, barrels were above the rails. She that the stipulation with reference to remained practically in this position the drought applied to the creeks from until the afternoon of May 31st, waiting which the supply of timber for shipto reach the wharf. The barrel owners ment at this point came, and that in having been notified on the 25th of her view of the particular port and trade to arrival, obtained an order for the de- which the contract related and that the livery of the barrels on the 26th from drought prevented or delayed the dethe vessel's agent, and being informed livery of the cargo to the ship, the that the vessel was at the Erie basin, said charterers and cargo are released from that they would send a lighter. On the any liability for demurrage by the ex27th the owners notified the vessel's ceptions in the charter party. Paterson agent that there was no lighter alongside v. Dakin, 31 Fed. Rep. 682.


specified period, no matter from whatsoever cause, excepting a


It was stipulated in a bill of lading require the captain to unload. It was that "cargo to be discharged with primarily the captain's duty to unload. quick dispatch as customary or to pay That the consignees discharged all demurrage at £5 per day. Held, that if their legal duty upon the arrival of the the custom of the port made it the duty boat by giving the captain notice that of the consignees to obtain a place for they would not unload the boat except the discharging of the cargo, they were in its regular turn, and in that case liable for demurrage occasioned by would pay no demurrage, and by offertheir refusing to do so after they had ing the captain a berth where he could accepted the cargo. Terjesen v. Car- unload himself if he did not accept the ter, 9 Daly (N. Y.) 193.

offer; and that this notice to him was a reIt was provided in a charter party jection of their right of election to unload. that the charterer was to be liable "for That the final unloading by the conany detention of the vessel after the ex- signees cannot be construed as done piration of fifteen lay days.” The lay under the election in the bill, but as a days expired on Saturday and the subsequent favor to the captain, indeloading was completed early Friday pendent of the bill and imposing no liamorning. But the charterer did not bility under it. McLaughlin v. Alfurnish the necessary documents for bany and Rensselaer Iron and Steel Co., clearance until Monday afternoon just 61 How. Pr. (N. Y.) 439. See also in time to clear at the custom house, opinion of CHOATE, J., in Tuttle v. Albut not in season to make it practicable bany & Rensselaer Iron and Steel Co., to sail until Tuesday morning.


to the same effect, reported in note, dence was given by the charterer of a McLaughlin v. Same. general practice and understanding in 1. Fish v. 150 Tons of Brown Stone, accordance with a rule of the produce 20 Fed. Rep. 201; Gronstadt v. Witexchange that allows charterers one thoff, 15 Fed. Rep. 265; Philadelphia & day after loading to furnish the neces- R. R. Čo. v. Northam, 2 Ben. I; Cross sary papers and documents. Held, that v. Beard, 26 N. Y. 85; Sleeper v. the general clause giving demurrage Puig, 17 Blatchf. C. Ct. 36; Randal v'. was designed to bind the charterer for Lynch, 2 Camp. _352; Williams 2). the neglect of any duty required of him Theobald, 15 Fed. Rep. 465; Manson z'. to enable the vessel to sail, and that no New York N. H. & H. R. R. Co., 24 custom was proved or could be sus- Blatchf. C. Ct. 448; Tapscott v. Baltained that warrants more than the al- four, L. R., 8 C. P. 46; Jones v. Adamlowance of one additional day to fur- son, 35 L.T., N. S. 287; Barrett v. Dutnish the ship's documents after the ton, 4 Camp. 333; Conner v. Smith, 5 loading is in fact completed, or until Taunt. 654; Barker v. Hudson, 3 M. & the end of the lay days if that be lat. S. 267. er, and that the ship cannot be de- If the ship is detained in this way aftained after the lay days have expired ter the loading is completed the charwithout compensation when the load- terer is not liable. Pringle v. Mollett, ing has been actually and practically 6 M. & W. So; Jamieson 7. Laurie, 6 more than a day before. The char - Bro. C. P. 674. terers were held for one day's demur- When it is provided in the charter rage. Rumball v. Puig, 34 Fed. Rep.665. party that detention by ice is not to be Where a bill of lading had the follow- reckoned as lay days, detention of the

a ing stipulation, viz: "In case consignee lighter by ice in bringing the goods to discharges cargo or any part thereof, the ship is included. Hudson 7. Ede, they are to charge not to exceed ten Law Rep., 2 Q. B. 566; by act of gorcents per ton and to have four full ernment, Bessey v. Evans, 4 Camp. working days after notice of arrival at 131; Hill v.

131; Hill v. Idle, Id. 327; Bright 2.

' dock of consignee and to pay master Page, 3 B. & P. 295; Hartman v. Clark, for any time (exclusive of Sunday) 4 Camp. 159; Harman v. Mant, Id. boat is detained for discharging after 161. the expiration of said four days five dol- If the charter party stipulates that the lars per day and at the same rate for discharging of cargo is to begin within portions of days." Held, that under twenty-four hours after arrival and nothe bill of lading the consignees had an tice thereof given to the consignees. The election, upon arrival of the boat, lay days begin to run at the expiration of whether they would unload the coal or the said twenty-four hours. Manson


« PreviousContinue »