.. ll. CO.
the owners of the 1i'(ying Fish in' their belief tha.t the F.P. 'H&ll was in fault, tha.t I deem it more just, in this insta;nce, to withhold costs. The Rhode IBland,' 8 Ben. 50. Libel dismissed.
CARR tJ. AUSTIN
& N. W. R. Co. and anOther.·
(Circuit Oourt,E. D. TeJ;aB.
Where a charter party provides that Ie the cargo is to be brought to and taken from along-side at merchant's risk and expense, and freeot lighterage to the ship, etc., and being so loaded shall therewith pr,;ceell," etc., the cost of light. erage at the ports of both departure and delllination, for lading and dischari\'6 of the cargo, is at the expense of. the merchant. .
PRIMAGE-VARIANCE BETW,EEN CHARTER-PARTY AN]) BILL OF LADIKG.
The charter-party being the contract hctween the nnrties, and that making' no mention of primage, none can be allowed,althollgh it was stipulated for in the bill of liming. Primage is no longer a gTatl\ity to the master, unless 80 expressly stipulated, but belongs to the owners or freighters, and is but an increase of tbe freight rate. The charter-party having lixed the rate of freight, the bill oflading given thereunder cannot enhance it.
Costs of the district court should be borne by the claimants; but as the decree of that court has been reduced, costs on appeal should be borne by the appellee.
In Admiralty. Mr. McLemore, for libelant. Mr. Waul, for claimants. PARDEE, d. J. The facts of the case are substantially as propounded in the libel and amended. libel; the amount due for freight, being the only material fact overstated,-£956 5B.4d. being the true amonnt unpaid, and not £1,080 lIs. ltd. as claimed. Besides this fact, the only other fact contested is whether or not Post, Martin & Co. (claimants and assignees of the bill of lading) had notice of the charter-party in pursuance of which the bill of lading was issued. The evidence on this point is sufficient to establish the fact of notice. Leaving out of the question the recitals on the face of the bill .of lading, showing the shipment of an entire cargo of railroad iron, such goods as would be likely to suggest lighterage, and demurrage, etc., the two facts undisputed and unexplained,-(l) of the prepayment of onehalf of the freight, less interest and insurance indorsed. on the back of the bill of lading; (2) and of the. consignee's instructions to his
It-Reportedhy Joseph P. Hornor, Esq., of the New Orleans bar.
agent prior to the arrival of the ship to furnishlighterage,-taken with the fact thltt lighterage was furnished by the claimant without question, are sufficient to satisfy meJhat the claimant,who thus carried out the specifications of the charter-party in advance, must ha ye had notice of its existence and terms. On the construction of the charter-party there is only one question raised, and that is whether, under its provisions, the consignees were required to furnish lighterage, if necessary, at the' port of destination. The clause in the charter-party in relation to lighterage is in these words:
"That the said ship, being tight, stanch, and strong, and every way fitted for the voyage, shall, with all possible dispatch, sail and proceed to Middleboro01l-Tee3, where ordered by the chartere!s, but where she can lay always afloat, or so near thereto as she may safely get, and there load from the factors of affreighters a full and complete cargo of rails, say 1,700 to 1,800 tons, at owner's option, not exceeding 30 feet in length, whicn is to be b1'ought to and taken from along-side at merchant's 1'i/Jk and expense, and fJ'ee of lighterage to the ship, etc., and being so loaded shall therewith proceed to GalveSton bay, or so near thereto as she may safely get," etc.
A plausible argument is made that the lighterage therein referred to the lighterage to take the cargo on board, to relates and not to the lighterage that might be necessary in discharging cargo. It would have been strange indeed if the parties, in making a charter-party with as many details as this one under consideration has, and when contracting specifically in relation to lighterage, had been silent as to that question, leaving it to, custom when contracting for a cargo of railroad iron to the port of Galveston, where lighterage is so notoriously necessary. But I cannot take the narrow view of the clause in question claimed for it by the learned proctor. It is stipulated that the cargo "is to be brought to and taken from alongside at merchant's risk and expense, and free of lighter-age to the ship." The construction claimed would leave the words "and taken from along-side" absolute surplusage, or would render it necessary to hold that when the merchant brought the cargo to the ship, it was to be taken aboard and loaded at merchant's risk and expense, which was, obviously, not the intent nor contract of the parties. On the question of primage, which has been argued and seems to have been allowed in the district court, I find it is only claimed in the libel in the guise of freight, although specified in the bill attached to the libel as primage. The charter-party, as has been found, constituted the contract between the parties, and aB that makeB no men-
CARR 'U. AUSTIN &; N. W. R. CO.
tion of primage, none can be allowed, although it was stipulated in the bill of lading. is no longer a gratuity to the master, unless specially stipulated; but it belongs to the owners or freighters, and is but an increase of the freight rate. The charter-party fixes the rate for freight, and the bill of lading given thereunder cannot enhance it. The case, then, as it appears to me, entitles the libelant to a decree in his favor for the following amounts, to-wit: For half freight money, unpaid, £956 5s. 4d.; reduced to United, States currency, at $4.80, agreed rate; making $4,590.08, with interest thereon from January 9, 1882, at 6 per cent. For five days' demurrage, at £35 per day, or £175; reduced to United States currency, at $4.80, agreed rate; making $840, with interest thereon at 6 per cent. from January 13, 1882. For charges paid on freight, in landing and carfor same, etc., to-wit:
Watchmen, $2l:l.50 and $27, Wharfage, Handling and storing, Lighterage, I
7500 - 250 00 562 50
-Upon which interest at 6 per cent. should be allowe'd from date of payment, say January 26, 1882, when last payment was made, so far as dates are shown. And as the property libeled, and on which libelant ha.d a lien for his demand, has been released and delivered to the claimants, Post, Martin & Co., on bond to stand in: place of the property, the decree should be against the claimants and their sureties on the release bond for the amonnts as above fonnd due. The costs of the district court should be borne by the claimants; but as the decree of that court has been reduced, the costs on appeal should be borne by the libelant and appellee. A decree in accordance with these views will be entered.
(District Uourt, E. D. Loui.iana. December, 1882.)
The expression" working days" has, in commerce and jurisprudence, " settled and definite meaning; it means days as they succeed each other, exclusive of Sundays and llOlidays.
:I. CHARTER,;PARTY-PAROL EVIDENCE TO CONTRADICT-(''uSTOM.
In a written instrument of where an unambiguous term is used, and which has an llccepted signification, both in commercial and judicial language, proof of usage will not be permitted to show that such term has a local meaning repugnant to its settled sense.
Edward H. Farrar, for Samuel P. Blanc and Frank N. Butler, for defendants. BILLINGS, D. J. In this cause the only question submitted is as to the meaning of the words "working days," as used in a charter-party executed in the city of New Orleans. The vessel was chartered for a voyage to Trieste. The charter-party provided "that lay days for loading shall be as follows: If not sooner disP!ttched, 14 working days, Sundays excepted, for loading; and days, Sundays excepted, for discharging at Trieste." The answer admits the allegations of the libel that - - days were consumed in lading beyond the lay days allowed in the contract, if only Sundays and holidays are to be excluded in the computation, and avers thai by the usage of the pori of New Orleans, with reference to cotton-carrying vessels, to whioh class the chartered vessel belonged, rainy days are also excluded, and that when the days wherein cotton could not be laden on account of the weather are also excluded, the ship's time of loading was within the period allowed by the charter-party. It is thus seen that the sole question is as to the meaning of the term "working days," and whether that meaning can be varied by parol testimony. The civil day is the solar day, and is measured by the diumal revolution of the sun, denoting the interval of time which elapses between the successive transits of the sun over the same hour circle, &'0 that the civil day commences and terminates at The expression "working days" has iu commerce and jurisprudence a settled and definite meaning; it means days as they succeed each other, exclusive of Sundays and holidays. The court give this precise and formal definition in Brooks v. Minturn, 1 Cal. 483. See,
-Reported by Joseph P. Hornor, Esq., of the New Orleans bar.