NEILSEN v. JESUP and others.
(District Oourt,S. D. New York. March 4, 1887.)
DEMUIIRA.GE-BILL OF LADlNG--HOJ,D;ER'S LIABILITy-SUBCONTRACTS.
A vessel, in delivering cargo! is not bound to look beyond the owner and hOlder of the bill of lading. As he has the control of the delivery and accept· ance of the goods. he is responsible, on accepting the goods under the bill oflading, for freight and demurrage according to its terms. He cannot relieve himself from responsibility by subcontracts for a delivery to others. who do not act directly'under the bill of biding, but only under the consignee's orders.
handing and order on vessel when they arrive in New York." On arrival; J. e,ntered the goods at the custom'house, and paid duties and freight. P. & C., who had acted as agents for J. in some matters concerning the rails, procuredthe.ship a berth, and received from J. the invoice and order on the vesselfor:dertV'ety, with a to collect payment, fro,m the railroa?- com, ,pany, whlcb..they subsequently dId. There was ,unr6llsonable delay In un, loading tlle ship, partly in remoying the iron from the dock, and partly through 'difficulty in getting lighters, ,Held that, whether or not P. & C. really aoted in reference to the delt,·V,eryOf.t,he, iro,n f,or thems,elves or, fO,r'the railroad, the demurrage, and must look to his company., J. was liable, to. t4e , :orto P. & C. for his ,indeniniW, i,f the delay was by their fault. "
J., the owner and consignee of certain iron rails, sold them to arrive, to a railroad company, to be dEllivered "ea: ship, free of duties; terms, cash on
,tihel fp; Demurrage. ,': ' 4da'Ql8' &i Macklin;. for Hbelant. Biddle c!; Ward, for respondents. ':BROWN, 1.. ',' Qn;the of May, 1880, the bark Porro arrived at this port with of iron rails, shipped Cardiff by Guest & Co., to be, "!l,eUvered at New York,:unto order or assigns, he or they paying freigM, of. said goods, an,d qonditipnsa!O per' charter-party." 'l'he charter-party provided for the discharge" as fast as the custom of -the port will admit, ", and. for" demurrage over and above the lying days at register ton per day." The vessel was entered at the op., first day of June.. .On the 3d she was ordered. to South where she arrived the next day, got a .berth, and.. was *e,lj.dy Jo discharge. Part of the .c!1rgo was discharged on the dock and part into lighter!!., . The ;(jln the dock W;:;tS stopped tb,at alreaPY was not reIll.oved,eo as to permit more: wit,hQ\lt. incumbering.t4edockj and, there miS q.elay in sending lighters, in part, at least, through difficulty in obtaining. them. at that time. Through these various causes, the cargo was not fully discharged until June 25th. Fourteen days were a reasonable time to discharge, which should have been completed, omitting the intervening Sundays, at least by the 21st. There is no custom proved that throws upon the ship the unnecessary loss of the remaining four days. She is therefore entitled to demmrage for that time, and the only question is whether the respondents in this action are responsible for it. The respondents, constituting the firm of
Jesup, Paton & Co., had in Noveinberprevious bought 5,000 tons of Guest & Co. 's ruils on joint account for themselves and Clark, Post & Martin, to be forwarded from Cardiff. On the of December following they sold 2,000 tons to the Detroit, Mackinac & Marquette Railroad Company, to be delivered "ex ship in the port of New York, free of all duties; terms, cash in New York, on handing invoice and order on vessel for the rails when they arrive in New York." Perkins & Choate, or their predecessors, had acted as agents of the respondents in the purchase; and, in consequence of delays in the receipt of the, iron from Europe, it would seem that they had supplied, by way of loan, Ii. part of the 2,000. tons contracted to be sold to the railroad company, which was to be returned to them out of the shipment in question. It was they personally who dealt with the master, selected a berth, and directed the master to it, and attended toprocuring lighters. On the second of June, Jesup, Paton & Co., as indorsees and holders of the bill of lading, made due entry at the custom-house of the rails brought by the Porro, in their own names as owners; inclosed Ii. customhouse permit, bill of lading. and invoice to Perkins & Choate, and requested them to collect from the railroad company the amount due upon its purchase. On the ninth of July the respondents acknowledged the statement of Perkins & Choate of the eighth, with their inclosu1'eofli. check for $48,235.09 to cover the balance due for rails "per Ariel and Porro." The freight was paid in full by respondents.-a part during the course of the discharge, and the balance after the discharge was com'. pleted. . Upon these facts, I am of opinion that the respondents are liable for the demurrage, although their vendees may have been in fault, and may be bound to indemnify the respondents for the delay; The liability for demurrage was in this case a part of the express contract of the bill of lading. BETTS" J., in Sprague v. West, 1 Abb. Adm. 548, 554, describes demurrage as "only an extended freight or reward to thevesseHn compensation of the earnings she is improperly caused to lose." In this view, the consignee who is liable for freight would be equally liable for demurrage. I have not been referred to any case sustaining a severance as to these liabilities under circumstances like the present. The general rule undoubtedly is that the consignee and indorsee ofthe bill of lading who is owner of the goods and of the bill of lading, and who accepts the goods under the bill of lading, is bound by its terms. If he accepts the goods under the bill of lading, he is presumed to agree to pay the stipulated freight. and to receive the goods. within a reasonable time, or within the agreed time, or else pay what the bill of lading requires for the delay. He cannot by his subcontracts with others shift his respopsibility upon who do not become parties to the bill of lading, aI?-d do not thereby assume any direct relations with the- ship. nor acquire any legal control of her movements, nor owe her any legal duty.. Theyessel is not bound to look beyond the owner and holder of the bill of lading" because he has the right to control the delivery and the acceptance of the goods under it. The Thames, 14 Wall. 98; 107.
For .unreasonable delay in the acceptance of the goods, and in enabling the ship to deliver, he is therefore primarily responsible. To avoid this responsibility, he must refuse acceptance, or find some other person who, both as of the goods and as assignee and holder of the bill of lading, becomes substituted in his place and to his rights and liabilities, through direct relations with the ship under and by virtue of the bill of lading. what neither the railroad company nor Perkins & Choate did in this case. The terms of sale to the railroad company were: "All duties paid. and cash on handing invoice and order on vessel," after arrival. These terms, it, will be observed, did not include any indorsement or delivery of the. bill of lading.' The opposite was plainly intended, becausethe respondents were to pay the duties, and hence were to enter the goods as. to lio which the bill oflading must have been held and used by them as their own, as in fact it was. Tb,isfixed the right of the ship to hold the respondents, and to look to .them for freight, and for a timely accept!ince of the goods, in enable the ship to. earn .ber freight without unreasonable delay. The fact .that the railroad company had agreed to take the goods ex ship, l\.nqqn, receipt of the invoice and order upon the ship, might charge company for the delay a& between it and the respondents. That did not,relieve the latter. The of the Company would deonly upon the terms of but uPQn the notice it received from the respondents under the contract. 'The notice itself might have been long delayed, or insufficient, or the papers delivered imperfect. With none of these things had the ship anything to do. She owed no. duty directly to the railroad company but only to. the respondents, 'as and holders of the, bill of lading, to deliver according to the orders of the latter. Any persons receiving goods, or dealing with the ship, under the respondents' orders, and .not directly under the. bill of lading, dealt with the ship, as between, her and the: respondents, as the representatives only of the latter in receiving the goods., Fowler v. KnorYp, 4 Q. B. Div. 299. The libelants are therefore entitled to a decree.
THE DORIS EQKHOFF.
and others'll. THE DORISEOKHoFE,etc.
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Where, upon arrest, 'R vessel' is released. upon a stipulation given for her value, and by subsequent amendment. in the progress of the cause. is allowed to plead the statutes in limitation of liability, the owners are not estopped by the stipulation from showing that the stipulated value included the value of