(JJistrict Court, E. D. Louisiana. ,hnuary 14, 1882.)
The mcaning of the words" customary dispatch" in II cllarter-party, relative to the disellarge of a vessel, construed and explained. These words, "customarydispatqh," mean the usual dispatch of persons who are ready to receive a cargo, and exclude all customs in accordance with'which the charterers claim they might, notwithstanding opportunity, decline to receive, simply because it was more advantageous to postpone. , Kea1'on v. Pear8fJn, 7 Hurl., & N. 386.
CuSTOMS OF THE PORT-OBLIGATIONS OF OHARTE11ER8AND OONSIGNEES.
The customs of the port cannot qualify the obl:gation of the charterers and COnsignees to obtain a berth where, the' vessel cuuld have" customary dispatch," , Sm.ith v. YellO'UJ PineL'Umber, 2 FED. REP. 400. , 8. BILl, OF LADING-UNLOADING CARGO-CHARGES FOR COVERING CARGO AFTER
,.Where tile bill pf lading provideS that the cargQshould delivered from the ship's deck, when the ship's responsibility should cease, the obligation to protect the cargo, after it was placed upon the wharf, was upon the charterm·s. Turnbull v. Blocks of Marble, 9 FED. REp. 320.
The steam-ship Glenbervie, having brought a cargo of fruit from Italy to New Orleans, under a charter-party providing that she should be discharged with customary dispatch, her owners instituted this suit against the consignee to recover demurrage for unusual and unnecesRary detention in discharging, and for sundry items of charges made against her by the consignee in settling for the charter-money. Joscph P. Hornor and Francis W. Ba,kcr, for libellants. Charlcs B. Singleton and R. Horace Browne, for defendant. Bn'LINGS, D. J. The principal discussion in this case has been as to the meaning of the phrase in the Charter-party, "to discharge with customary dispatch," and, subordinately, whether the consignees are to pay demurrage for any portion of the 16 days elapsing between the time of the arrival of the ship at the port of New Orleans and the time when the discharging of her cargo was completed. The testimony shows that it is the custom of the fruit dealers at that port to receive their fruit from the vessels no faster than they can sell it at the wharves. The fruit could have been received more rapidly and the discharging been sooner completed, but the consignees declined to receive it in any greater quantities than could
-Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
LINDSAY V. CUSUMANO.
be disposed of. This occasioned delay. Is such delay included in the terms "customary dispatch ?" The obligations of the owners and charterers, when the chader. party is silent as to time to be occupied in discharging, are reciprocal; each shall use "reasonable" dispatch. This obligation is here quali. fied by changing "reasonable" into "customary" dispatch. This enlarges the source of delay, and makes it include all those usages at the port of delivery which the charterers cannot control, such as the working hOUfS, the order in which vessels must come up to the wharf, the observance of holidays,the allowance of three days to obtain a berth, provided one cannot be sooner obtained; but here their force stops. They cannot be held to include any delay which is pnrely voluntary on the part of the charterers,. although such delay ,is, customary in the fruit trade. The phrase must be confined in its meaning to excuse the parties for want of opportnnity by reason of the customs prevailing at the port. This is the substance ofrthe distinction in Kearon v. Pearson, Rurlstone, & Norman, 386. There the question was as to the meaning of the words "usual dispatch," as applied to loading. Martin, B., before whom the case' was tried, (whose ruling was affirmed by all the judges,) says, page 387, they. meant "that the vessel should be loaded with the usual dispatch of persons who have a cargo ready at Liverpool for loading." Rere, these words, "customary dispatch," meant the usual dispatch of persons who are ready to receive a cargo, and exclude all customs in accordance with which these charterers might claim the right to decline to receive, simply because it was more advantageous. to postpone. If this distinction ,is observed, all the cases cited are reconcilable. See Smith v. Yellow Pine Lumber, 2 FED. REP. 396; Nichols v. Tremlett, 1 Spr.361; and Sleeper v.,Puig, 17 Blatch£. 36. During the rain, and for a reasonable time after it celtsed, the time should not be counted. According to the construction of the charterparty, which must control, the customs of the port could not qualify the obligation of the charterers and consignees to obtain a berth where the vessel could have customary dispatch. Smith v. Yellow Pine Lumber, 2 FED. REP. 400. That is, the custom of discharging cargoes of fruit at or near a particular wharf was not a custom which in the nature of things could exempt them from obtaining a berth when one could be had, where the stipulations of the charter-party could be carried out and the delivery take place with dispatch, limited'or qual: ified by the customs prevailing at the port of delivery which created barriers not under the control of the party who here urges them.
The vessel arrived on the evening or late in the afternoon of J anuary 27, 1880. She finished unloading about 2 o'clock in the afternoon of February 11th. The charter-party seems to show that the unloading would occupy five days, if at the port of New York. It occupied 52 hours, or a trifle over five days, if 10 hours are allowed as the working time for each day. It is difficult to fix: with accuracy the time which should be allowed for the rain. I think two days should be added to the five, making seven for unloading, with proper allowance for interruptions from rain. The two Sundays should be deducted. The time of unloading should be counted from the morning of the twenty-eighth of January and include the eleventh of February; this makes 15 days. Deducting five days as proper time for unloading, two days for rain, and two days for Sundays, we have six days remaining, for which libellants are entitled to recover at the rateol £80 per day, amounting to £180, English currency. The $25 for hire of tarpaulins, and $32 for day and night watchmen, were for the protection of the cargo after· it had been placed upon the wharf. By the terms of the charter-party the delivery was to be made to lighters, or the responsibility of the ship was to cease after delIvery from deck. It is not attempted to be shown that the delivery was more rapid than the consignees could receive, but for their wishing to sell as delivered. The obligation to protect the cargo after it was placed upon the wharf was upon the charterers. These items should therefore be recovered. The claim for $33.75, for 15 empty boxes, and the claim for money paid to Bassetti & Xiques, are rejected. The evidence does not show satisfactorily that these claims were not well founded, and the burden is upon the libellants. Let there be judgment for libellants for $961.40, interest from judicial demand.
CROUCH, impleaded, etc.
(Oircuit Court, N. D. Illinois. February 9, 1882.)
1. REMOVAL OF CAUSE-SHOWING REQUIRED.
It must affirmatively appear on the record, or by facts in the petition, that the case could not have been heard and tried at a term before t4e application was made. 2. SAME-CONBTURCTION OF SECTION 3 OF ACT OF MAUCH 3, 1875. The construction of the statute is that if the case is in a condition where it can be tried in conformity with the law and the practice of the court, then an application after that term in which it is in that too late
SA,ME-A,pPLICATION UNDER ACT OF
1867. The statute of 1867 does not a citizen of the state in which a suit is brought to make application to remove on account of prejudice, but only the citizen of another state, where the suit is between such citizen and the citizen of the state iJi. which the suit is brought.