for care of the cargo must, in this case, be disallowed. They placed
the cargo, or so much of it as was unladen, in buildings upon their own wharf; and they have been otherwise allowed for all the labor and expense attending it, and also a charge for the storage of it, as well as for watchmen. I do not understand that there was any additional responsibility on the part of the claimants not compensated for by these items; and when they store the goods themselves, and receive compensation for storage, and do not procure it elsewhere or by other means, I think that an additional commission cannot be allowed. 7'he Edwa1'd Albro, 10 Ben. 668, 685; The J. C. Williams, 15 FED. REP. 558, 560. Having deducted $450 from the stores included in the Whitlock estimate, a deduction of 10 per cent. from the price of such articles new will be a sufficient abatement on what remains of that list, making that list of items $2,574.28 instead of $3,310.31. I do not find any sufficient reason for modifying the other items excepted to on either side. The result of these modifications is to reduce the libelant's claim, with interest, by $2,311.42, making his claim, including cargo, $50,981.33; and to reduce the defendants' claim, including interest, by $873.18, making their claim amount to $7,876.39. One-half the difference between these sums is $21,552,4,7, for which sum, with interest from March 24, 1885, the libelant is entitled to judgment, with costs. Any further questions as respects liability for cargo are reserved.
CARGO OF IRON ORE. 1
(District Court, S, D. New York. l'tlarch 22, 1885,)
DEMURRAGE-ExCEPTIONS IN CHARTER-" j)'ROST."
'!'he charter of the bark E. from Carthagena to New York provided that she should take on board" say 600 tons of iron ore, to be loaded and discharged at therateof70tonsper ,.' day;" the cargo "to be l'eceivedanddelivered as customary," and "to be delivered as directed by the consignees," the charterers to have" the option of averaging the days for hading and discharging," etc., "lay days to commence at six o'clock in the morning, after the ship is reported, and all ready to load or discharge;" and among the exceptions to demurrage charges was hindrance from" frost." The claimants first directed the ship to Jersey City, but on the captain's objecting, they agreed that she might go to Atlantic docks, Brooklyn, and there discharge in lighters. While there, the weather became very cold, and the accumulated ice delayed the discharge by making it difficult for the lighters to be shifted in order to trim the cargo, and this libel was filed for eight days'demurrage in consequence. Two of the days were lost at Carthagena. Held, that the wedging in of the IighteB by the ice, and the consequent delay in discharge, was a result of "frost," such 8S to bring the delay under that exception in the charter-party.
lReported by RD. & Edward BenedIct, Es'ls., ofllle New York bar.
AALHOLM V. A OARGO OF IRON ORE.
SAME-" CUSTOMARY" MODE OF UNLOADING.
The libelants claimed that the cargo might have been trimmed faster by employing men with wheelbarrows, instead of trusting to moving the lighters. It appeared that this method was employed when the lighters became actually frozen in, and it was applied with reasonable diligence. Held, that such was not the ., customary" mode of unloading and trimming in lighters; that the " customary" mode being all that this charter-party required, extraordinary diligence was not obligatory on the charterer to avoid the cOllscLllIences of the "frost," which was excepted. OF LAY DAYS. 3. The charter-party provided that lay days should commence from 6 o'clock of the morning, after lhe ves,el was ready to discharge. Held, that the time cOlllti be counted only from the time of the ship's actual readiness to begin the discharge, either upon the wharf or into lighters, whichever was agreed upon, both modes of discharge being in use. As she never got a berth at a wharf, and as a discharge in lighters was the mode agreed on, it was immaterial Whether. under the actual she could have discharged sooner or not, by g'oing to a berth along-side a wharf, the captain having made no objection to a discharge in lighters, or to the place adopted. !I,. SAME-Two DAYS' DEMURRAGE. As no excuse was offered for the two days' delayat Carthagena, and the time was not made up at the end of the vl'yage, /teld, that the ship lthould lJe charged for two demurrage. '
In Admiralty. demurrage for the detention of the This libel was filed tc. Norwegian bark Emigrant, in the loading and discharge of a cargo of iron ore, under a charter of that vessel from Carthagena, Spain, to Kew York. The charter provided that she should take on board "say about 600 tons of iron ore, to be loaded and discharged at the rate of 70 tons per weather working day of 24 hours, Sundays and holidays excepted;" the cargo "to be received and delivered in turn, as customary, at the ports of lading and discharge," and "delivered as directed by the consignees," the charterers to have "the option of averaging the days for loading and discharging, in order to avoid demurrage;" "lay days to commence at six o'clock in the morning, after the ship is reported and all ready to load or discharge, of which the captain is to give notice in writing to the shippers and consignees;" "demurrage over and above the said lay days, £8 per day of 24 hours, except in case of any hands striking work, frosts or floods, revolutions or wars, or any unavoidable accidents which may hinder the loading or discharge." The number of lay days was not specified. The vessel took on board at Carthagena 560 tons of ore, occupying 10 weather working days, and arrived with it at New York on the twenty-second of January, 1881. After being first directed to go to Jersey City, to which objection was made by the captain, she was directed to Atlantic docks, Brooklyn, to be discharged in lighters. The discharge was commenced on the twenty-seventh of January, as soon as the bark was ready, but was not completed until the eleventh of February. Two days' time having been lost at Carthagena, the libelants claimed that but six remained available to the claimants, leaving eight days' detention, for which demurrage was claimed. Butler, Stillman et "Hubbard et Mynderse, for libelants.
Jas. K. IIill, fVing d Shoudy, for claimant. BROWN, J. The claimants, by their charter-party, had a right to direct the ship to her place discharge. They first directed her to a dock at Jersey Oity. The captain objected to going there, reporting to the claimants that on inquiry he had been told that there was not sufficient water at the dock assigned. The evidence as to the actual depth of water there is, however, inconclusive and unsatisfactory. Had the unloading taken place at the dock at Jersey Oity, the discharge would have been made into cars rapidly and without interruption. The ship was at that time just outside of the Atlantic docks, Brooklyn. Upon this objection of the captain, the claimants told him that he might go into Atlantic docks, and that they would discharge on lighters there. The captain, accordingly, moved inside the docks, but did not get a berth along-side any wharf; and the claimants had lighters in readiness, before the ship was prepared with proper appliances, or "ready to discharge." There was some ice inside the Atlantic docks when the ship moved in; but no objection was made to this dock on that account, nor does the libel claim that the assignment to these docks was, under the circumstances, improper. The continued and increasing cold caused such an accumulation and freezing up of the loose ice within the docks that the necessary changes in the position of the lighters in order to receive the ore could not be made without numerous delays. The actual discharge commenced on the twentyseventh of January, and was not completed until the eleventh of February, occupying 14 working days. The stipulated rate of 70 tons per day would have occupied but 8 days. I am satisfied from the evidence that the entire detention was caused through ice from increasing and continued cold weather, after the ship had taken up her position within the docks, and after the lighters were along-side. There was no delay in bringing the lighters along-side from first to last. The customary mode of discharging iron are in New York is either upon the dock or upon lighters. When discharged in lighters, the usual practice is to move the lighter along from time to time beneath the place where the are is dumped. The difficulty here was that the lighters were so wedged in by the ice that great delays were caused, first, in the shifting of the lighters, in order to trim the cargo properly, and, afterwards, in trying to trim the cal'go without shift.ing. '1'he libelants claim that the cargo might have been trimmed faster byemploying men with wheelbarrows to trim the cargo by wheeling it fore and aft, instead of moving the lighter. But tbat was, at best, a slow mode of loading; and it was very speedily adopted when the lighters became frozen in, and it was applied with reasonable diligence. That was not, however, the cU3tomal'y mode of unloading into lighters; and the "customary" mode of unloading was all that this charter-party required." In Tapscott v. Balfour (L. R. 8 O. P. 46, 53) it was held that these words refer specially to the mode rather than to the time of unlading; while in Postlethwaite v.,Ft·eeland (5 App. Oas. 599) the words
AALHOLM V. A CARGO OF IBON OBB.
"all dispatch according to the custom of the port" were held to put the ship to all the risks of the customary disabilities and detentions of the port through lack of lighters procurable by the charterers. If, in the present case, the detention by ice in handling the lighters during the process of unloading was a detention by "frost" "hindering the discharge," within the meaning of these words in the charter-party, then the detention in this case is within the exception of the charter, and the defendants are not liable unless the detention could have been avoided by ordinary and reasonable diligence. The evidence satisfies me that from the first all the usual men were employed. and ordinary diligence was used, for trimming the cargo and for changing the lighters; and that, when it became apparent that more men were needed to trim the cargo, ordinary diligence was used in getting additional men with wheelbat'rows for that purpose. Extraordinary diligence and efforts to this end certainly are not' obligatory on a charterer in order to avoid the consequences of the very cause that is contemplated and provided for in the exception. The requirement to discharge 70 tons per day was subject to this exception of "frost." I see no reason to doubt that the obstruction in moving the lighter caused by ice, as the result of "frost," is within the meaning of this exception of the charter.party. Frost here means freezing; and it includes any freezing that would hinder or obstruct the loading or unloading of the ship. This is the most natural, if not the only, meaning that the word "frost" could have in this connection. In the cases of Kay v. Field, 8 Q. B. Div. 594, and 10 Q. B. Div. 241, and Coverdale v. Grant, 8 Q. B. Div. 600, and 9 App. Cas. 470, both of which were elaborately considered, no question was made that an "impediment through ice was within the meaning of the exception of "frost" in the charter·party. But it was held that it did not apply to impediments by ice in transporting the goods from some other place to the place of loading; but only to such impediments existing at the very place of loading or unloading. Such is precisely this case. Hudson v. Ede, L. B. 2 Q. B. 5GG <lnrl L. R. 3 Q. B. 412; The Norillai/, 16 FED. REP. 879. 'rhe charter-party in this case provided that the time was to be counted" only from 6 o'clock of the morning next after the vessel "is reported and all ready to load or discharge, of which the cfl,ptain is to give notice to the consignees." This manifestly means a present readiness to commence the actual discharge. No time can be counted, therefore, as lay days, except from the time of the ship's actual readiness to be'gin the discharge, either upou the wharf or upon lighters. CarsQ.nego v. Wheeler, 16 l!'ED. REP. 248; Teilmnn v. Plock, 17 FED. REP. 268, and 21 FED. REP. 349; Murphy v. CojJin, 12 Q. B. Div. 87. The ship accepted the proposed discharge upon lighters as the mode of discharge in this case. She never got a berth along-side a wharf where she was ready to discharge in any different manner. The exceptions of the charter· party mnst, therefore, be applied to the
stadt v. Withoff, 21
253, 255. No question arises as to what delays might have been experienced in attempting to unload at a berth along-side the wharf; for the ship never got a bert.h, nor attempted to get one. There is no reason to suppose, however, that she could have obtained a discharging berth instantly. The disad. vantage to the ship, by that mode of discharge, might bave been equally great, since, by the terms of this charter, the by days would begin only from the time of actual readiness to discharge at the berth. Cases supra; and see Robertson v. Jackson, 2 C. B. 412; Leidemann v. Schultz, 14 C. B. 38; Lawson v. Burness, 1 Hurl. & C. 396; Kell v. Anderson, 10 Mees. & W. 498. No evidence being offered to excuse the two days' delay at Carthagena, and the lost time not being made up through any more rapid discharge here, so as to fall within the average clause of the charter, the libelants are entitled to a decree for two days' demurrage, and to that only, amounting to £16, with interest and costs.
or discharge agreed upon and followed by the parties.
COircuit Oourt, D. Oolorado. 1885.) 1.
CORPORATIONS-TRUST RELATIONS BETWEEN OFFICERS AND CORPORATIONSTOCKHOLDERS.
While the officers 01 a corporation occupy trust relations to it, and in the faithful performance of such trusts they would indirectly Sll bserve the in tere,ts of other stockholders, trust relations to the corporation do not, as to the stuckholders, create trust relations inter sese.
SAME-TRUST NOT SHOWN-EvIDENCE.
On examination of the evidence in this cllse, lwld. th1t nn trust as between the parties is shown, and that the fra ud charged il) nUL VI u, cn.
InEquity. L. S. Dixon and Tho8. Macon, for complainant. Decker d: Yonley, for defendants. BREWER, J. Out of the tangled and voluminous testimony in this case I have deduced these facts: (1) In August, 1875, the San Juan Consolidated Mining Company was organized as a corporation, under the laws of the territory of Colorado, with a capital stock of 20,000 shares of $100 each; the corporators being the complainant, the defendants Bowen and Tankersley, and George 1\1. Binckley. To this corporation these several corporators conveyed certain mining claims and properties owned by them, receiving in payment therefor, each, 3,875 shares of the stock. Subsequently, and during the fall of that year, the remaining 4,550 shares were, with the exception of five shares, issued to defendant Bowen and others for the purchase of other mining properties. The four corporators above named constituted the first board of directors. Defendant Tankersley was president; Binckley, vice-president; complainant, superintendent; and defendant .Bowen, secretary and treasurer. These officers remained unchanged during the transactions which form the basis of this litigation. While the stock of this corporation was large, yet, until 18S0, its value was wholly speculative, a mere guess at the undiscovered bowels of the hills, so much so that in 1879 defendant Tankersley sold to defendant Bowen 3,800 shares, and a note of $6,000, given by the corporation, for $1,000. (2) Whatever trifling legal business-and it was but trifling-the firm of Tankersley & Bowen, or either of them, may have transacted for complainant and Binckley prior to the organization of the company, after that time, neither as a firm nor individually were they the attorneys of, nor did they occupy confidential relations to, complainant or Binckley. In their subsequent dealings with each other in respect to stock matters, these four corporators dealt at arm's length. I consider this an important fact, for if defendant Bowen, with whom this controversy really is, either individually or as a member of the firm of Tankersley & Bowen, was the attorney of or occupied other confidential relations to complainant or Binckley, then it v.23F,no.13-40