NEW YORK, N. H. & H. R. 00.
ltlANSON and others 11.
N. H. & H. R. Co.
(Circuit Court, D. Oonnecticut. June 21,1887.)
Where·a bill of lading designates a particular dock at the port of delivery as the place of discharge, the carrier cannot claim demurrage for detention arising from the state of the elements prior to the vessel's arrival at the particular but, after arrival at the place designated, the consignee takes the risk of.any ordinary vicissitude, or of !JiB major, which may occur to prevent the release of the ship at the expiration of the running days. The master of the schooner S. received on board at Baltimore a cargo of coal to be transported to New Haven, and there delivered at the "Consolidated Road Docks." The' bill of lading provided that lay-days should begin to run 24' hours after arrival at New Haven, and notice thereof to the consignee, and that one daY should be allowed for the discharge of each 100 tons of cargo, after which the cargo consignee or assigne.e should p,ay demurrage at the rate of eight cents a ton per day on the entire cargo until the same was fully discharged. TheS. arrived January 30th, and on the 31st reported to the cOllllignee, who directed .tbe discharge to take place at "Shop Dock, " one. of the cons9lidated docks mentioned in the bill of The entrance to this dock was through a channel about 80 feet wide. Another vessel was ordered in the channel ahead of the S. The S. was towed to the entrance of the channel, and, while waiting for the other vessel to discharge, and 0)1 February 3d, .ice formedin the channel so thick that the S. could not proceed. On February 5th the consignee directed the master to proceed. but he declined unless the consignee paid for opening the channel, and offered to discharge at another dock. On the 16tlJ. the discharge, by agreement, was c.ommenced at another dock, and was completed on the 23d. Held, that 10 days' demurrage. from February 13th to 23d, should. be allowed; affirming the decision of the district court, 26 Fed. Rep. 923.
William K. Toumsend and John H. Whiitney, for libelants. Johnson T. Platt, for defendants.
WALLACE, J. This is a libel in personam for demurrage. The district court decreed in favor of the libelants, and the respondent has appealed. The libelants are the owners of the schooner Sutton, the master of which received on board at Baltimore a cargo of coal to be transported tQ the port of New Haven. By the bill of lading the master undertook to deliver the cargo to the appellant, the consignee therein' named,!lot the "Consolidated Road Docks, New Haven." The clause in the bill oflading, as regards demurrage, is as follows:
" And 24 bours after the arrival at the above-named port, and notice thereof to the consignee named, there shall be allowed for receiving said cargo at the rate of orie day, Sundays and legal holidays excepted, for every hundred tons thereof, after which the cargo, consignee, or assignee shall pay demurrage at the rate of eight cents per ton a day, Sundays and legal holidays not excepted, upon the full amount of cargo, as per this bill of lading, for each and every day's detention. andpro.rata for parts and portions of a day, beyond the days above specified, until the cargo is fully discharged; which freight and demurrage shall constitute a lien upon said cargo." .
The consignee had several docks at the port of New Haven. The Sutton arrived at New Haven harbor at midnight, January 30, 1885, and at 2 o'clock P. M. the next day to the agent of the consignee. This agent directed the master of the Sutton to discharge the cargo at one of the docks of the consignee called the "ShOp Dock." A vessel was then lying at that dock, having just discharged her cargo. The basin in which that dock was situated was connected with the main charinel of the hltrbor by an artificial channel of about 80 fee't wide, and about 10 feet deep at low tide.· The master tollt the agent that he would there OIl the first tide, whioh would be that night. try and take his The agent replied that anotherv-essel, the Crescent, was to go in first, and that he did not want two vessels there at the same time. On the next day the CrescentweIit to Shop dock, and the Sutton was towed to the entrance of the Shop-dock channel. While the Sutton was waiting there for the Crescent to be discharged and come out,and before that vessel came out, and by February 3d, ice formed in the channel of such Sutton could· proceed; and this state of things 'continued until-March 6th. On February 5th the consignee's agent directed. the :D:f.8'Ster of the Sutton. to proceed and discharge his cargo at Shop dock::, The master offered to take the Sutton through ohannel, and discharge as requested, if the co.nsignee would' pay the expense of broken througll the ice.' The agent'of the consignee refused to do,tlljs. The master of the Sutton refused to discharge at Shop dock. and. the agent· of the consignee insisted that he wanted the cargo there. It WQuldhave involved a very' considerable expense, especially to the libelants,' break a passage through the ice to Shop dock. At this time, and all the time after the consignee was notified of the arrival of the Sutton, Belle dock, another of the consignee's docks, was accessible, and the master of the Sutton offered to discharge his cargo there;' but the consignee's agent would not consent, because the convenience of the consignee required the coal to be discharged at Shop dock. Matters remained in this situation until February 16th, when an parties by which·thQ cargo was to be discharged at another place without waiving the rights of either,and under that arrangement the disoharge was immediately begun, and was completed February 23d. ." The foregoing are the e8sential, facta upon which. the case turns. De-, murrage ,was allowed by the ,distri¢t court for a period of 10 days, commencingQIl February 13th, in the: sum of $784. The appellant contends that the Sutton was under obligation to proceed to the Shop dock, that place of delive;y by the consignee, and that no liallilitytor demurrage arlsel'lhecause she had not completed her v'oyage(prior, W February 16th, ,and was not prepared to make delivery of the capgo littheproper plaoe., The dE1cisioD' of the learned district judge recognized the rule that, when a billof:1ading designates a particular dock at the port of delivery where the. cargo shall be discharged, the carrier' can make no claim for demurrage'fo'!:' any from the state of the elements prior
H. &: H. R. 00.
to the arrival of the ship at the particular place. His decision was placed upon the ground that, under this bill of lading, the consignee had the right to designate which one of the several docks constituting the consolidated road docks, llamed in the bill of lading, should be the place of discharge, provided the one selected was accessible to the Sutton within a reasonable time, and by the use of reasonable means; and he held the consignee liable because the dock selected was. at the time inaccessible, and the detention arose without fault of the carrier, and while the ship was waiting for an opportunity, pursuant to the instructions of the consignee, to get to the dock designated. The decree below is not one of which the appellant can reasonably complain. If the libelants had appealed, they would have been entitled to recover one day's demurrage' more than was allowed by the district court. The law undoubtedly is that the obligation of the carrier is not alone to carry the cargo, but is in addition to deliver it at the place of discharge in the port of delltination mentioned in the bill of lading; and the consignee incurs no liability for demurrage delivery is made. or tendered. McInto8h v. Sinclair, 11 Ir. C. L. 456; Aylward v. Smith, 2 Low. Dec. 192; Parker v. Winlow, 7 El. & Bl. 942; Hodgdon v. Railroad Co., 46 Conn. 277. It is equally well settled that, where the bill of lading allows a given number of days to the consignee for unloading, a contract is implied on his part that, from the time when the ship is at the usual place of discharge, he will take the risk of any ordinary vicissitnde which may occur to prevent the release of the ship at the expiration of the running days. Tiia v. Byer8, 34 Law T. S.) 526; Randall v. Lynch, 2 Camp. 352; Gr088 v. Beard, 26 N. Y. 85. The place of discharge designated in this bill of lading was anyone of the several docks of the consignee known as the "Consolidated Road Docks;" and there was no proof of any usage or custom by which any particular one of these docks was to be treated as the place of discharge. Under this bill orlading the consignee had the right, and it was its duty, to designate a suitable place for the discharge of the cargo within 24 hours after notice of the ship's arrival. This follows not merely from the fact that delivery of the cargo was to be made at anyone of several docks belonging to the consignee, all of which ordinarily were equally convenient, or. practically so, for the carrier; hut because the peculiar phraseology of the demurrage clause implies that the parties to the hill oOading intended that the consignee should have 24 hours in which to select a suitable place of discharge after notice of arrival of the ship. The Boston, 1 Low. Dec..464. The bill of lading thus prescribes what time is. to be deemed a reasonable time on the part. of the consignee in which to provide a suitable place for the discharge of the cargo, and exonerates him from liability for any deray occurring during that period without his fault; but it also imports a promise on his part that the running days in which the vessel is to be discharged shall commence at the expiration of the 24 hours. Clwate v. Meredith, 1 Holmes, MO. Any detention of the ship from that time, which occurs without the fault of the carrier, is at the risk of the consignee.
The. court below adopted a view more liberal to the consignee. It is plain that until February 3d the master of the Sutton was ready to deliver his cargo, and could have made delivery at anyone of the docks of the consignee; but the court and the proofs sustain the finding, that the master of the Sutton was mduced to delay proceeding to the Shop dock for the convenience of the consignee, and waited at a place as near that dock as he could get, in pursuance of the instructions of the consignee, until the ice prevented him from reaching it. He then offered to discharge at another of the docks named in the bilI of lading, which was then accessible; but permission to do so was refused by the consignee. Under such circumstances it is not open to fair doubt that the consignee took the risk of any detention of the ship by vis major while it was waiting to get access to the ,Shop dock. Tapscott v. Balfour, L. R. 8 C. P. 46; Jones v.,4damson, 35 Law T. (N. S.) 287. The consignee cannot be heard to allege that the master was in fault for complying with its own instructions, or that the libelants are in any different sition than they would be in .if the of the Sutton had occurred at Shop dock after she had reached that place. . The decree of the district court is affirmed, with interest and costs.
PHENIX INs. Co.
CHADBOURNE, Adm'r, and others.
(Oircuit Oourt, D. Massacllusetts. 1887.)
Smp·OWNERS-LIABILITY FOR AGENT'S AnvANCES-PAYMENT-INSURANCE.
The agents of the owners of a vessel advanced. at the owners' request and for their benefit, the money necessary to enable the vessel to make a voyage, and took out a policy of insurance to secure the amoun t advanced. The vessel was lost. and the insurance money collected by the agents. Held, that the receipt of the money extinguislled and satisfied the debt, and that neither under an assignment to the insurance company, nor under the doctrine of subrogation, could the company maintain an action against the owners to recover the amount from them.
The facts in this casewere that the vessel was in Georgia, and it became necessary to raise money to put the vessel in condition to make a voyage to South America. Parsons & Loud, of New York, were agents (If the owners, and advanced the money, taking out a policy of insurance to secure the amount thus advanced. The vessel was lost, and the insurance money collected by Parsons & Loud, and the plaintiff took an assignment of the claim. The defendant Chadbourne is administrator of the estate of Nehemiah Gibson. a. T. RU88eU, Jr., for lil>elant. F. Dodge, for respondents. NELSON, J. It is perfectly clear, from the facta agreed upon in thie case, that the insurance on the advances made by Parsons & Loud on the