GILBERT HUBBARD & CO. V. ROACH.
although they thereby would take risks that are improvident; and many by whom assistance is offered would succeed, by the persistency of their demands, in extorting from the fears or the necessities ot'the other party a reward to which they are not entitled. The Emulous, 1 Sumn. 209; The A. D. Patchin, 1 Blatch. 424; The Wexford, 6 Ben. 119; The Homely, 8 Ben. 495; The Jacob E. Ridgway, ld. 179; The Jeremiah, S. D. N. Y. March 3, 1879, unreported; The Helen and George, Swabey, 368. The claimants having tendered and paid into court the full amount to which the libellant is entitled, together with the costs of libellant up to the time of such payment, the libellant is entitled to a decree for that sum, and the claimants will recover their costs subsequent to that time, to be paid out of the same. Decree accordingly.
(Circuit Oourt, No D. illinois. --,1880.)
ADMIRALTY-JURISDICTION-STORAGE OF SAILB.-The storage of sails, when stripped from the vessel, is not a service pertaining to her navi. gation, and a claim for such storage is not a subject of admiralty jurisdiction, either by proceedings in rem or in personam.
Claim for Storage. Mr. Kremer, for libellants.. Mr. Condon, for respondents. DYER, D. J. An important question in this case is whether Or not libellants have a remedy by maritime action for storage of the vessel's sails. This appears to be a new guestion. No adjudicated case directly bearing upon it has been pre. sented. In Benedict's Admiralty, § 283, it is said: "The master and owner of a ship, and the ship herself, may beproceeded against in admiralty to enforce payment of wharfage, whether the vessel lie along-side the wharf or at a distance, and only use the wharf temporarily for boats or cargoes. Of the same nature is the charge for storing a sail or-
other furniture in a warehouse on shore, and that kind of rent or storage is also the subject of a maritime action." In support of the last proposition the author cites Gordon v. The New Jersey, 1 Peters' Admiralty Reports, 223; Ex parte Lewis, 2 Gal. 483; Jonson v. The McDonough, Gilpin, 101; and The Phcebe, Ware, 354. I have examined all of these cases, and find that, with the exception of the case of The Phcebe, none of them decide that a charge for storing the outfit of a vessel is the subject of a maritime action, nor do they touch that precise question. In the case of The Phcebe, which was a case of distribution among different claimants of proceeds which were in the registry of the court, there is indirect allusion to storage as a privileged debt, constituting a lien on the property, but the question is not discussed or distinctly decided. It has been dBcided in numerous cases that wharfage is the subject of admiralty jurisdiction, and this may well be because it directly pertains to the navigation of the ship. Mr. Benedict inclines to the opinion that the service of stevedores at the port of delivery of the cargo is maritime, but the contrary has been directly held by authority entitled to weight. Attempt has been made to support the right to maintain an action in the admiralty for storage, under the twelfth rule, which provides that "in all suits by material·men for supplies or repairs or other necessaries for a foreign port, the. libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceeding in personam, but not in rem, shall apply to cases of domestic ships for supplies, repairs, or other necessaries." And it has been argued, in the case at bar, that the storage of the sails of a vessel ought to be classed as one of the necessaries mentioned in this rule; but I understand "necessaries" for a vessel, as the term is used in this rule, to mean those things which pertain to the navigation of the vessel, and which are directly incidental to and connected with her navigation; that is, those things which directly aid in keeping her in motion, for the purpose of receiving, carrying and deliver.
GILBERT HUBBARD & 00.
ing cargoes; and this, in general, will be found to be the nature of claims which constitute a lien in the admiralty upon the res, or which are made the foundation for maritime actions in personam. Now, it is true that when sails and outfit are stripped from a vesel they should be stored for safe preservation; and, in the course of business, what are known as sail lofts, in which the sails and outfit may be stored, are established at ports along the lakes, and the business of such storage, for which compensation in the nature of rent is charged, has grown up; but is this a service which pertains to the navigation of a vessel, and which necessarily attaches to her, in the course of her employment, as does a claim for supplies, repairs, furnishings, wharfage, mariners' wage;:;, and other like demands, which are indispensable to enable the vessel to perform her voyages? It is wholly shore service, performed in store-houses on land, and, as was said in OOX v. Murray, 1 Abb. Adm'y Rep. 342, "the maritime quality of a service arises only when the matters performed or entered upon pertain to the fitment of the vessel for navigation, aid and relief supplied in preparing for and conducting a voyage, or the freighting or employment of her as the instrument of So voyage." The main argument in support of the claim that storage is or should be the subject of a maritime action is that the sails and outfit catinot be safely stored on board the vesselj that this would be attended with the hazards of fire, robbery, and deterioration from various causes j and that to avoid these hazards it is necessary that they be stored in other places. But that is an argument addressed rather to the question of degree of safety than to that of absolute neces3ity. The storage of sails and outfit does not seem to be so imme diately and necessarily connected with the navigation of the vessel as to make it a maritime service or claim; and, in the absence of any other authority than has been mentioned, I shall hold that it is not a subject-matter of admiralty jurisdiction, either by action in rem or in personam, and the f'Xceptions to the commissioner's report upon the item for storage charged in libellant's account will, therefore, be sustained.
SMITH t'. SIXTY THOUSAND FEET OJ' YELLOW PINJI BER,
April 12, 1880.)
(District Oourt, S. D. New York.
CHARTER PARTY-" CUSTOMARY DISPATCH" m DISCHARGmG CARGO-DE. MURHAGE-A charter-party provided that the vessel to be loaded with lumber i!hould have "customary dispatch" in discharging her cargo at New York, and fixed the demurrage for each day's detention by the default of the charterers. Held, that such" dispatch I I meant in accordance with or consistently with all known and well-established usages of the port; that charterers were bound to find her a berth where the cargo could be discharged with "customary dispatch," and without interruption during customary hOUrs, and was liable for the detention. at the agreed rate of demurrage, caused by failure so to do.
F. A. Wilcox, for libella,nt. C. d N. Weller, for claimant. CHOATE, D. J. This is a libel for demurrage against part of the cargo of the schooner Florence & Lilien, which was chartered for a voyage from Port Royal, South Carolina, to New York, to carry yellow pine lumber. By this charterparty it was agreed that the rate of demurrage is fixed ai $35 per day for each day's detention "by the default" of the charterers, and that the vessel was to have "customary dispatch" for the discharging at New York. The charter·party also provided that the cargo was "to be received and delivered alongside within reach of the vessel's tackles." The vessel arrived in New York on the thirtieth of June, 1878, and the master reported to the charterer and was given a berth at pier at fooi of Twenty-second street, North river, on July 1st. They commenced discharging the deck load upon the pier, over the side of the vessel, on Tuesday, the second of July. They remained at this place till about noon of Saturday, the sixth of July. when the vessel was moved, by direction of the charterers, to the slip on the south side of the pier at the foot of Chambers street, at which place about 80,000 feet were discharged into the water. On Wednesday afternoon, July 10th, she wall taken back to pier at foot of Twenty-second .treat, ..nd given