HUNDRED TONS OF OOAL.
185
ELEVEN HUNDRED TONS OF COAL.
(Oircuit Court. lJ. Maine.
June 5.1882.)
OHARTER-PARTY-STIPULATION FOR LoADING.
Where the charterers had refused to give lay days, and had upon the insertion of the clause" vessel to load in turn at Sydney according to the custom of the port, strikes and accidents of the mines excepted," and the charterers had written that vessels loading culm or slack coal were not to wait for vessels loading coarse coal, held that the stipulation means that the vessel . was to take its turn with other vessels loading culm 2. BAHE-DEMURRAGE-CUSTOlllARY DISPATCH.
a.
Customary dispatch, strikes, and accidents of the mines excepted, would permit the charterer of a ship, where coal is the only article of export, and is always loaded from the mine, to load with all due diligence, working the railroad to its full capacity. BUIE-DUE DILIGENCE.
Where the evidence showed that culm piled up near the mine and exposed to the weather is believed to be dangerous, the agents of the mine would not be justified in shipping it without the captain's consent, and it was no want of diligence not to load the earlier vessels with it. 4. BAlfE-EsTOPPEL.
A letter written by the charterer merely expressinll: an opinion that the detention will not be great, is not to be construed as a wananty or estoppel.
Libel for Demurrage. F. P. Shepherd, the libellant, master of the barquentine John Baizley, chartered that vessel June 27,1881, to D.W. Job & Co., of Boston, to bring a cargo of culm or coal from Sydney, Cape Breton, to Portland, Maine. The negotiation with the libellant was carried on through Chase, Leavitt & Co., ship-brokers, of Portland, who wrote to Job & Co. June 17, 1881, that they had not been able to induce the owners of vessels to accept orders for Sydney, adding: "We do not suppose you can give lay days at Sydney for loading; if so, we can get vessel any doubt. They fear detention at Sydney." Job & Co. answered the next day, in a letter containing this sentence: "There would not be much detention at Sydney, as the vessels we want would load slack coal, and consequently would not have to wait for those taking coarse coal." This letter was shown . to the libellant before he made the contract. The charter-party had the following clause: "It is agreed that the lay days for loading and discharging shall be as follows: Commencing from the time the captain reports himself ready to receive or discharge cargo. Vessel to load in turn at Sydney, according to the custom of the pm·t, strikes and accidents of the mines anddischa1'ge with dispatch at [)oltland.
186
FEDERAL REPORTER.
.
And for each and every day's detention, by default of said pa,rty of dollars per day shall be paid," etc. the second part, or ;agent, The words in italics are in writing, the remainder in print. The usage in shipping coal' at Sydney is that the miners bring it to the surface and dump it into cars. It passes over a screen, and. the coarse or :!round coal goes into one set of cars and the culm or screenings into another set. The cars are then taken to the port, and'the coarse coal is passed thrcip.gh spouts into vessels at one pier, and the culm into. vessels at another. There was but one berth for each class. The usage of all the mines at Sydney is similar. There is no exporting business there, excepting from the coal mines. . The International mine, in July, 1881, produced and shipped about tons a day, of· which about 150 tons was culm. They had a pile, or bank, of culm at the mine; but this culm is not uBtially takaii' for shipment, because it is thought to be. more liable to spontaneous combustion than when freshly mined. The railroad. was in good order, and the amount shipped was quite as much as usril1l. The: libellant arrived at Sydney July 7, 1881, and reported to the agents of .International mine, in accordance with a direction from the charterers. At this time, three vessels were waiting to load with culm from the same mine. They were loaded in turn, at the rate of about 150 tons a day, endinJ July 24, 1881. Captain Shepherd hauled into the dock July 25th, and was cleared August 2d. The shipment. was suspended. for one day, July 27th, by a strike at the mine.' On the twenty-first of July the libellant notified the agents that his lay days had expired, and that he should claim demurrage thereafter at the rate of $88 per day. On the day of his clearance he notified them that he claimed demurrage for 10 days, at the rate of $84.32 per day. When he arrived at Portland, August 12,1881, he notified Job & Co. that he had been detained at Sydney by steamers and other vessels loading coarse coal, which arrived after him, and that he should not discharge his cargo until this demand, which he states at "about $900," was satisfied. He libelled the coal for freight a,nd demurrage, and· a settlement of the freight was afterwards made. The district judge having been of counsel in the cause, it was certified to this court for trial. T. H. Haskell and W. F. Lunt, for libellants. G. T. Russell and G. T. RU8sell, Jr., for claimants. LOWELL, C. J. This case, upon which others depend, is of much importance to the parties, and has been very thoroughly argued. The main question is, what is the meaning of stipulation for
ELEVEN HUNDBED TONS'OF COAL.
187
loading contained in the charter-party? The charterers had refused to give lay days, and had insisted upon the insertion of "vessel to load in turn at Sydney, according to the custom of the port, strikes and accidents of the mines excepted." Considering that this is part of the agreement concerning lay days, and that the charterers had written that vessels loading culm, or slack coal, were not to wait for vessels loading coarse coal, I cannot doubt that they intended this language to mean that the vessel was to take its turn with other vessels loading culm. The captain, in his letter of August 12th, complains that vessels loading coarse coal. arriving after him, had been dispatched before him; but not only was this the custom, but it seems a reasonable one, because .the same vessel never takes both kinds of coal, and therefore it would not hasten the loading of one class to stop loading the other; there being force· enough to carry on both at the same time. I hold, therefore, that the turn in loading a similar cargo. this cargo refers to vessels The counsel for the libellant, at the argnment, insisted that if the vessel was to take her turn for culm it was not supplied fast enough. They say that a merchant charterer is bound to have a cargo ready for shipment, and to put it on board in a reasonable time; and that the "custom" mentioned in the charter-party, means only such general, usage of the port as refers to the mode of loading a cargo which is at hand. If the latter proposition is sound, no doubt the former is, and I should be bound to inquire whether the three vessels in port, and the libellant1s vessel were all dispatched within a reason.able time. n has been held that when a vessel is to load or discharge in a general port, like New York, Liverpool, or New Orleans, "customary dispatch," or a similar phrase, refers to the general customs of the port, and not to the special usage of the charterer in his business, or to his means of dispatching a ship. Kearon v. Pearson, 7 Hurls.8f N. 386; Adams v. Roya,Z MaiZ Co. 5 C. B. (N. S.) 492; Lawson v. Burness, 1 H. & C. 396; Sixty Thousand Feet of Lumber, 2 FED. REP. -896; Lindsay v. Cusimano, 10 FED. REP. 302. But there is no shipping business at Sydney, excepting in coal, and there are no usages .to which the charter can refer, excepting those of the mines. This was frankly admitted in the argument, and, indeed, insisted on. The .clause, then, refers to these usages or to nothing. I repeat, in this .connection, that it is impossible to doubt that the charterers intended to refer to the usage which all the miners have, for some 40 'years or more, adopted and adhered to. I see no reason fOlsaying that the
188
FEDERAL BEPORTBR.
intention is not well expressed. Nor do r know that the master of the John Baizley was ignorant of it. He has not said so. He knew that there was danger of detention, and that the charterers refused to take the risk of it. I suppose his freight, which was $1.65 a ton, must have been based upon the chance of some delay, because it seems to have been the market rate; and it is probable that the ship-owners of Maine had a general knowledge of these usages, or, at any rate, of the delay resulting from their application, and adopted their rates of freight accordingly. Customary dispatch, strikes, and accidents of the mines excepted, would therefore permit the charterer of a ship, where coal is the only article of export, and is always loaded from the mine, to load from his mine with all usual diligence, working the railroad to its full capacity, all of 'which was done in this case. Whether, if other mines at Sydney gave greater dispatch, this contract, referring generally to the usages of the mines, might not require the greatest dispatch given by any mine, I do not decide. Judge Sprague held, in a somewhat similar case, that the shipper . was bound to furnish the usual supply of coal, and charged him with so many days, and only so many, as were lost by his furnishing a less amount. Nichols v. Tremlett, 1 Sprague, 361. That is the case most like this which I find. The fallowing have some analogy to it: Hal'. ris v. Dreesma.n, 23 L. J. Ex. 210; Robertson v. Ja{Jkson, 2 C. B. 412; Fordv. Cotesworth, L. R. 4 Q.B. 127;L. R. 5 Q. B. 544. In Hudson. v. Ede, L. R. 2 Q. B. 566; L. R. 3 Q. B. 412, the charterer was bound to load in 30 days, detention by ice excepted, and a detention in the river Danube, many miles above the port, excused him, though the port itself was free; it being usual to rely on the river for transportation. It was proved in Nichols v. Tremlett that the custom of the mine was to store coal in winter against the needs of shipment in summer. Here there is no such evidence, except that culm is piled up near the mine when there is no demand for it for immediate shipment. But the evidence is that this pile is not usually drawn on for shipment, because culm which has been exposed to weather is believed to be dangerous. The libellant demanded and received some Jf this culm; but he appears to have run some risk of setting his vessel on fire with it, or at least to have thought so. Upon the evidence, the agents of the mine would not have been justified in shipping this culm without the oaptain's consent; and therefore it was no want of diligence not to load the earlier vessels with it.
THE JAMES M. THOMPSON.
189
The letter which Job & Co. wrote, and which 'may have induced the libellant to enter into this engagement, was literally in representing that vessels for culm do not wait for those which take coarse coal. It was wrong in its inference that there would be any advantage to the libellant from this state of thin.gs; because, as it happened, there were more vessels waiting for culm, in proportion to the supply, than were waiting for coarse COltl. But as it wonld be difficult to say what is or is not "much detention," and as the letter appears to have been written in good faith, I cannot hold it to be a warranty or estoppel, but only what it appears on its face to be,an expression of opinion that the detention will'not be great. Libel dismissed, with costs·
JAMES
M.
THOMPSON.
(District Oou'Pt, 8. D. New YO'f'k. April 5,1882.)
COLLISION-NARROW STREAMS-DILIGENCE TO AVOID DANGER-SIGNALS.
In navigating 'narrow stream choked with vessels on either hand, actin diligence to avoid collisions, and the use of all available means, including the giving of prompt signals in case of apprehended danger, are among the obvious . and ordinary duties of navigation. " TUG AND Tow-ENTERING NARROW STREAMS-DUTIES OF.
a
S.
Where the steam-tug S., with a tow lashed to her starboard side, entering Newtown creek upon the southerly side, was followed at a short distance by the steam-tug J. M. T., towing upon a hawser a light loadedsqow of more than . twice her breadth, and the S. having crossed the creek in front of the .J. T., but not having room to come round against the flood tide for the purpose of landing her tow, came at rest in a position nearly directly across the creek and occupying nearly the full half of its width, and the J. M. T. passed within 10 or 12 feet of her stern, when the S.'s propeller was seen backing water, and the pilot of the J. M. T. then apprehended a collision with the scow if the 8. did not stop backing, but gave no danger signals and kept on his course in order to pass through the draw-bridge just above, and then open, and there being no other reason for not slacking speed or stopping than the alleged fear of fouling the hawser or approaching other vessels, and a collision ensued between the scow and the :::>., held, that the J. M. T. was in fault for not sounding danger signals when the danger was perceived, and for not slacking speed or changing her course. Held, also, that the 8., having the use of her motive power, was not entitled to the immunities of a ves,el at anchor, though for the moment at rest, but 'was in fault for neUher proceeding somewhat further ahead when occupying nearly half the stream, which it' she was able to do, or, if unable to do so, in not sounding danger to give notice to the other tug and scow of her inabilit.v to proceJd.lIeld, als'l, that the scow was in fault, having a pilot of her own, with good steerage way, for