cure it, and allowed it to remain so for 10 minutes, and until the accident happened, there was· gross negligence on the part of the crew; or if, as testified to by the second officer, Roberts, two shoremen, who were on board the vessel, put out the ladder, and he stood and looked at them and did not stop them, or interfere to prevent them, (as it was his duty to do under the rules of the vessel,) or, permitting them to put the ladder out, omitted to see that it was properly secured, or to have it done, then he failed to properly perform his duty, and the ship would be responsible for any injury resulting therefrom. .He was negligent. The ship is liable for negligence of the crew. Sherlock v. AUifng, 93 U.S. 108; 1 Kinney, Dig. p. 26, § 82. I therefore conclude that this is a case where the damage sued for was caused by the negligence of the ship's crew, and I must adjudge the vessel herself liable for such damage, and she is accordingly condemned to pay the same; but, the amount of damage not being shown, a reference must be had to ascertain it.
THE DICl'ATOR. 1 .
'/I. ASHLEY PHOSPHATE
ana others, Agents,etc.,
April 2, 1887.)
A consignee cannot force upon a vessel a substituted mode of discharge, involving delay or increased cost.
If the evidence fails to disclose any consideration for the change, and if the substituted mode of discharge was wholly for the benefit of the consignee, and a detriment to the vessel, an agreement on the part of the latter to the substituted mode of discharge is not to be presumed merely from the circumstance that it was not objected to at the time. If a vessel be detained in the stream until her lay-days have begun, and if the consignee then begins her discharge by lighters. the vessel has a right to presume that the delay incident to this mode of discharge will be borne by the consignee, and a. failure to object thereto is not to be taken as a waiver of any rights secured by contract. When, by contract, the right to select a wharf is ve.sted in the consignee, "provided that the depth of water be guarantied," the wharf selected must be one to which the vessel can go without having recourse to lighterage.
BAME-FAILURE TO OBJECT-WAIVER OF RIGHTS.
SAME-SELECTION OF WHARF.
If by contract the wharf is to be selected "immediately on arrival, " the consignee is liable for any delay occurring by reason of his failure to select a suitable wharf with promptness. . .
In Admiralty. Demurrage. Libel in personam. Bryan &: Bryan, for libelants.
JReported by' Theodore M. Etting, Esq., of the Philadelphia bar.
Hayne:l: Ji1icken, for respondents. SIMoNToN,J. The Norwegian bark Dictator came into this port with ilcargo of kainitowned by orespondents, in aU 698 tons. She was un" der charter-party, and thekainit was carried under bill of lading to order, on the margin of which ,was a reference in writing to the party. She dropped anchor .on ninth February, and notified the respondents·. On 10th she received directions from the respondents to discharge cargo at their wharf some 20 miles up Asllley river. She was . drawing 161 feet. No vessel drawing more than 13i feet could go to the wharf designated. The respondents sent lighters to her, and received cargo until the draught ofthe bark was reduced to 13 feet. She was then towed to the wharf named. She began discharging on tenth and finished on twenty-eighth February. By the custom of this port she had 10 days to discharge this cargo of 698 tons. Libelants claim demurrage for five days and a half. Respondents deny the claim. \ The question depends upon the dealing between these parties. Wefind the first transactions between them in the charter-party and bill oflading. If we dissect the charter-party, this construction will appear: Ten working days are allowed for loading the ship at Hamburg, (not counting as lay-days such days on which lighters are prevented by ice from coming to the ship,) and for the discharge of the ship as many days as are customary at the port of discharge. That this is the true construction is shown by the words next succeeding this provision, "If detained longer, demurrage shall be," etc. This is the only reference to the custom of the port of discharge expressly made in the charter-party. The cargo is to be taken from along-side at charterer's risk and expense; so the cargo must be brought to along-side at the ship's expense; this discharge to be effected at one wharf, as ordered by consignee, immediately on arrival of ship. The consignee, in so ordering a wharf, has the privilege of selecting one on Ashley or on Cooper river, if he guaranties a sufficient depth of water. rfhat is, the ship must discharge herself at her own expense, such discharge to be at a wharf which could not be changed, "one wharf" to be selected by the consigneeimmediately on arrival; and, provided that the depth of water be guarantied, this wharf could be either on Ashley or Cooper river. Here we have an express contract, with no ambiguous words, using no technical terms, whose construction depends on local usage or custom, not referring to any custom of the port. Compare Robinson v. U. S., 13 Wall. 363j partridge v. Phmni:.c Mut.liiJe Ins. Co., 15 Wall. 579. . The ship was entitled to its performance, emphasized as it is by the marginal addition to the bill of lading. No evidence of a custom of this port to discharge by lighters is admissible. The evidence offered does not sustain the position. If a wharf had been supplied immediately on arrival, the ship could have obtained the appliances either of a horse or of steam, which would have discharged her easily within the time prescribed by the custom of the port. No wharf having been supplied her, her lay-da.ys beginning, she was discharged in part in the stream by
lighters, and compelled to use her own unaided appliances, or to procure others at greatly increased expense and risk. These she was not bound to incur. Thus the ship was delayed by act of the consignees. If consignees had failed to receive cargo, or had delayed receipt of cargo, the result' of such delay would have fallen on them. There is no reason for saying they are not equally responsible for delay occasioned by not providing a wharf, as \hey had contracted to do immediately upon arrival. But when the consignees determined to discharge by lighters, and not to send the bark at once to a wharf, neither the master nor the agents of the bark made any objections. Does this vary the rights of the parties? A contract may be varied by a new contract, or the performance of it may be waived. In the present case the evidence discloses no new consideration for the change in the manner of discharging. The gain was wholly with the consignees. They were, under contract, to furnish a wharf, with sufficient depth of water. It did not suit their convenience to do this. They selected the slower and more expensive process of lightering. If, therefore, the contract of the charter.party and bill of lading ceased to operate in terms, this must be the result of a waiver on the part of the bark, or her agents. Was there such a waiver? The bark arrived in port in due season. She reported herself, and had the. tight to discharge at a proper wharf. The consignees alone could select such a wharf. .If they neglected or omitted so to do, she could refuse to discharge, and could charge demurrage. HawgoorZ v. Orte Thousand Three Hwndred and Ten Tons, 21 Fed. Rep. 681. But this involved delay and litigation. Ships are not built to ride at anchor. They are instruments of commerce. They fulfill their purpose in going from port to port. Litigation should always be avoided, if possible. The master owed it to his employers to discharge cargo, 'and free them and himselfJrom the extraordinary responsibility of a carrier. The.consignees wan4ld their property. The stipulation for a wharf, immediately on arrival,. was not insisted on. It would not be just, however, to put upon the ship the burden and expense of this change; nor can we. suppose that, underthecircumstances, the master assumed them. He was bound .to discharge his cargo in 10 daysjunless prevented from doing so by the act of the consignees. He may well have supposed that, if the convenience of the consignees required the discharge of cargo by lighters and if this caused delay, they wquld pay for it. They had guarantied a certain depth of water. To assist they kept the ship in the stream, and there took out cargo. Was it unreasonable to .conclude that they would bear the result. , . A party is presumed to waive a right when his acts are wholly inconsistent with the assertion and exercise of the right. See Phillips &; Colby a. Ch. v. Seymour, 91 U. S. 651. The master is not responsible for the delay occasioned by the act of the consignees. Having beimeight days in the stream, and during that. time having discharged some 398 tons, the bark, on twenty-first February, went up the Ashley, to the wharf designated. There the master engaged as his stevedoretbe super-
mtendent;of.the Ashley Phosphate Company, (the respondent,) and proceeded to discharge the remaining 300 tons. Eight of the ten laydays had been consumed. The master was bound for two more days, and, by the custom oBhe port, he should discharge at least 70 tons per day. She got up the river on 21st, in a rain. The 22d is a public holiday by statute in South Carolina. This is not a lay-day. The case quoted by libelant (The Tangier, 23 How. 44) decides that Thanksgiving day was a lay-day. But that was a day of voluntary observance, not a holiday by statute. Besides this, the master and the consignees both agreed not to work on the twenty-second of February. On 23d and 24th the ship discharged 138 tons. On 25th, 26th, 28th, the rest of the cargo was discharged. The 27th was Sunday. For these three days the respondents must pay demurrage. Let decree be entered accordingly.
THE CHEROKEE. l
(lX8trict Court, D. South ()"airou,na. March
8ALVAGE-:SUIT TO RECOVER-PLEADING-AvERMENT OF OWNERBHIP.
In a suit for salvage, the libelant mUst allege specifically, and in a distinct article, who are the owners of the vessel alleged to have rendered the service in question. Ownership is, in a suit of this character, a material fact, and may become of essential importance to the respondent.
In Admiralty. Hearing on exceptions to libel. Mitchell, &: Smith, for BryOln &: Bryan, for respondent. SIMONTON, J. This is a motion, in the nature of a demurrer, as to the sufficiency of the libel. The libel begins in these words: "The libel of Thomas Young, owner of the steam-tug Monarch, of Charleston, for himself and all others, entitled against the S. S. Cherokee, in a cause of salvage, civil and maritime, alleges as follows: First;" etc. Nowhere in the allegations following this heading is it stated that Young is the owner of the tug Monarch; nor is his name mentioned or his ownership alluded to again. Upon this point respondent excepts to the libel. The ownership of the tug is a material fact, and it may pecome of essential importance in the protection of the respondent in obeying the decree of the court in this case. It should therefore be alleged in a distinct article, (Rule 23d, Adm.,) so that respondent may traverse it, if he be so advised, or at least may require proof of it. Even if this has not been adopted as the universal it is better pleading, Rnd this will be observed hereafter within this jurisdiction. It conforms to the opinion of the supreme court in McKinlay v. Morrish, 21 How. 343. The libelant will amend his libel to meet this objection.
Reported by Theodore M. Etting, Esq., of the Philadelphia bar.