in the usual manner. She was left without a watchman, or, if the man on board was intended as a watchman, he wholly neglected his duties, and got on deck but a few moments before the iron went overboard. The evidence shows that the iron was lost after several hours of gradual careening of the lighter, and, as would appear from the almanac, at just about low water. From whichever ofthe two causes assigned the accident happened, this was not reasonable and proper care for a cargo like iron, liable to slip off the deck. Without considering, therefore, the question whether the lighter, in a case like the present, was under the obligations of a common carrier, which many late authorities in this country would seem to sustain, (see Hutch. Carr. §§ 58,61; Browne, Carr. §§ 74, 32, note; Sumner v. CaBWell, 20 Fed. Rep. 249,) I think the lighter must be held answerable for not in the first place making the necessary inquiries and examination to obtain a safe place to moor for the .night, in a place where the circumstances were evidently peculiar and also, after having thus moored withoutuscertainment or inquiry, fot being left without any watchman to look after her safety at night dUring the rise and fall of the tide in such a place. The libelant is entitlEld to a decree against the Cottrell, with costa.
THE GIULIO. 1 PAOLII,LO t1.
THOUSAND NINE HUNDRED AND FORTY BALES OF VEGETABLE HAm. CORMACK
11. THE GIULIO.
(District Oourt, 8. D. New York. April 30, 1888.)
SHIPPING-CARRIAGE OF GOODS-UNREASONABLE DELAY.
A vessel chartered to the Mediterranean and back to New York, put into her home port in Italy on account of stress of weather. Some repaIrs were put on her there, and, after their completion, she was detained three weeks longer, t!;trough acute rheumatism of the master. Held, that the owner was not justified in detaining the vessel in her home port for such reason, without indemnifying the charterer for the expense and loss caused by the delay. A vessel is liable for the fall in market prices during a period of negligent delay on her part, though such delay arose before the cargo was shipped, when the delay was voluntary. and was in the course of the voyage contracted for by the charter, and after it had been entered upon.
Charterers who load a vess.el with return cargo after, a period of nel;l:ligent delay on the part of the vessel do not thereby necessarily waive the right of action which has alrearly accrued to them for the breach of the ship's legal duty of dispatch in fulfilling the charter requirements. '
,Where objection that a vessel has not takana full cargo is not made at the time when objections in other respects are made by protest, any complaint made afterwards on thi, score should be looked upon with suspicion.
'JReported by Edward G. Benedict, Esq., of the New York bar.
,o.,$.A.n-,LIlCN F,QR ,FREIGHT.
',. ',' of wfthont. notice of intent to retain. the lien for freIght IS a Wluvel" of 81lclihen; but a debveryof cargo to a wharfinger or warehouseman on thecCollsigllee'saccount, accompanied by a notice of lien for freight. is no waiver. and the ,lien continues.' Even if the notice of lien is served 'an hour or two afte(the last of the cargo is delivered. so slight a delay as the fraction of a day in' serving notice should not necessarily be deemed indicative of any intent to ,make an unconditiqnal delivery.
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In Admiralty. : The ab()ve are cross-libels arisingnpon a charter party oIthe Giulio to H. M. CorID'ackand others, dealingnrider the name of Latassa & Co. In the second action damages are claimed for tpe delay; of the Giulio in proand for not taking on a full cargo; in ceeding to per the first, 'freight' wasC1aimed for the cargo delivered. 'The vessel was chartered on May 13, 1886, for a voyage from New York to Gibraltar and Malta, and thence for return cargo back to New York, from either Bona or Oran, for a lump sum of £600 sterling. She arrived at Malta SeptemBer 14th, where she completed berdischarge on the 28th of September. By cable directions from the charterers she was ordered to Oran, a,:port on theno'tth coast of Africa. The \7esselleft Malta on the 4th of October, and from the 8th to th'e9th, meeting heavy weather, according to the master's testimony, ,she was obliged to put into Castellamare, her home port, which she reached on October 10th. ' During the next three weeks considerable repairs were made to her there, and, after the repairs were completed, she remained three we'eks longer, in consequence of the illness of the master withaoute rheumatism. She left on the 23d of NoXe1Pber. and. atri\Ted at Oran in the extraordimirily'short time of eight :days. The, passage is sometimes from 30 to 40 days. During all this time Latassa&Co. had acargoih waiting at Oran; and under eXpensesfor storage,)nsurance, etc.,ror whichdatnages were claimed, as well as for loss through the fall of the market price upon late delivery ill New York; The ehartere1'8 claimed that the lien on the goods for freight :was lost by unconditional delivery of the goods. The claimed also five days' demurrage. ' . ; Wing, Shoudy & Putnam, for Paolillo. Whitehead,'Parker& Dexter, for'Cormack.
BROWN, J. 1. The evidence is not sufficient- to impeach the statements in either ofthe three, logs ,which, by tlwltalj,an law, it was Giulio to, keep. Their purposes being different, g1'e&tel' fullness of detail in log No. 1 asrespetlU! the gale encountered on the of Oct()ber thanwas entered No.2, was proper.
rfbat tlie additional matter is not found repeated in log No.2 casts no discredit upon log No. 1. The other evidence shows that the night was [bUrra8C080] squally and boisterous. I cannot find, therefore, that the master was not justified in putting in at Castellamare, or overrule his judgment of the necessity of putting into port. The Mar'i,a Luigia, 24 BIatchf.15, 28 Fed. Rep. 244; lruJurance Cb. v. CatleU, 12 Wheat. 383; Fearing v. Ohecseman, 3 Cliff. 91. 2. After necessary repairs were completed at Castellamare, the vessel was kept there some three weeks longer, through acute rheumatism of the master. That port was her home port; and, under her duty, according to the terms of the charter, and the charterer's instructions, to proceed to Oran, I do not think the owner was justified in further detaining the ship in her home .port on account of the master's illness. after the repairs were completed, and after the long delay already incurred, without indemnifying the charterer for the expense and loss caused by the additional delay. The, master should have gone aboard, and, with the aid of the mate and other officers of the sbip, as in ordinary cases of illness at sea, proceeded to Oran; or, if that were not practicable under the circumstances, it was competent for the owners to appoint another master,either for the rest of the voyage, or temporarily. The ship owes the charterer diligence and dispatch. The SUCCetl8, 7 BIatchf. 551; The On'l'U8t, 1 Ben. 431. The expense of that delay, ·namely, the and other expenses of the cargo during this time, should therefore be paid by the ship to. the charterer. 3. In addition to the local expenses of storage, Latassa & Co. are, :I think,entitled to the amount of the fall in the market price, if there was any fall, during the three weeks preceding the date of arrival in New York.. ,The liability of the vessel for the loss of 11 market during the period<ofnegligent delay, after the goods have been taken on board,has been often decided in the courts of this country. The SUCCCS8, supra; The City oj Dublin, 1 Ben. 46;· The Golde:n Rule, 9 Fed. Rep. 334; Pagev. Munro,l Holmes,233; Desty, Shipp. & Adm. § 256. I see no reason why the same rule should not be applbd, though the delay arose before the cargo was shipped, where the delay was volunt&ry, and arose in the course of the voyage contracted by the charter, and after it had been entered upon.· The charltlrers assuredly bad the right to count upon the ship's proceeding to Oran, pursuant to orders, with reasonable dispatch, 8S it was her duty to do. No notice was given to them of her inability to proceed, nor was there any proposal to give up the performance o£the rest of the voyage; The charterers were in daily expectation of her arrival at Oran; and, so far as her delay in leaving Castellamare.arose frorh the fault of the OWlIlers, there is no reason why the. consequent 108s. should be borne by:the charterers: Their loading her with a return cargo when she did arrlv.e at Oran was no waiver of their right of action which had alreadya(lCfued to them for·the breach of the ship's legal :duty,of dispatch in fulfilling her charter engagements. The case of Ths Parana, ·2 Prob. Div. 118, and Of Olhsen v. Drummand, 2 Chit. 705, don.Qtseem tome applicable here. The period of unjust.ifiable delay as
the proofs, is three weeks. The bark is not entitled to offset against this ,her quickl'un of 8 days. There is no knowing but that she might have made the same run had she left' Caetellamare when she ought to have left. Having delayed unjustifiably three weeks at Castellamare, the contingencies of navigation cannot be taken into account. She must answer as for three weeks' expenses of the cargo at Oran, and for the fall in the market price of the cargo, if there was any fall,during the throe weeks before the bark arrived in New York. 4. The evidence does not show that the bark did not take a full cargo. All was taken that was tendered at Oran, and the protest made by the charterer's agent at that time and place, though objecting to the previous delay, makes no complaint of her not taking ainll cargo. 'rhe master says she was full, and the stevedore so certifies. The cargo was of the Much was necessarily left to the judgment of the master in regard to the quantity of ballast necessary; and, no objections being made at the time when objections in other respects were made by protest, \!Ulycomplaint made afterwards on this score would be justly looked' upon with great ,suspicion, even if evidence had been offered to sustain it. 5. By the law of this country the vessel has a lien upon the cargo for freight. This lien mayqbe displaced by contract, or it may be waived. The Eddy, 5. Wall. 481,-494. An unqualified delivery of the cargo to the consignee without notice of any intent to retain the lien, is deemed a waiver. Bags of Linseed, 1 Black, 108; A Cargo of Brirnstone, 8 Ben.' 45; Wilcox v. Tons of Coal, 14 Fed. Rep. 49. But a delivery toawnarfinger or a warehouseman on the consignee's fPccount,accompanied byanotice of lien, is no waiver; and the lien continues. In this case the idence shows that the delivery to the warehouse directed by the consignee was completed about noon of the 17th; and that on the same day;, about noon, a written notice of the ship's lien upon the cargo was served on the warehouseman. It is clear that there was no intent to make an unconditional delivery of the cargo; the contrary intent seems to me manifest. ,;Even if, the actual service of the notice were an hour or two after the last bale was delivered on the 17th,-which the evidence, however, does not show,-so.slighta delay as the mere fraction of a day in serving notice could not justly be deemed as indicative of any intent to make an unconditional delivery; and the situation of the consignee, of the warehouseman,anrl of the goods, being unchanged, no waiver of the lien can be found. Bags of lJinseed, 1 mack, 108. 6. The charter stipulated for customary dispatch in unloading at New York. There is no strict proof Gf what is customary dispatch for :such'a cargo. The treasury regulations of 1884,p. 92, art. 185, prescribe that if vessels of between 300 and 800 tons are not discharged in working. days, thecust<im-house officers may take possession. The this regulation is 80 different from that of the charterrequiring'unloading with customary dispatch, that the period. of 12 days, vessels ·of So different capaCities, and without reference to the· kind of car· .goes,. is. no criterion of what is ."customary, dispatch" as between the par
BROWN ,. CERTA.IN TONS OF COAL.
ties to a charter. The arrival was reported to the charterers on Febru' ary 5th. The charterers, on the 7th, directed the bark to a. wharf, which she reached on the same day; but other vessels in the slip prevented her beginning to discharge until Monday, the 14th. She was then discharged, and the discharge was completed about noon of the 17th. No reasor: is given for sending the vessel to a wharf where she was detained so long before she could commence discharging. Twenty-four hours after that, in addition to the two days after notice of arrival, were certainly a reasonable and sufficient time, in the absence of further proof, to find a dock and berth where the ship might commence her discharge. It does not appear that the discharge in four days after she began was through any unusual exertions. Four days' time must therefore be taken as a reasonable .time for the actual discharge of this cargo. This leaves fiv& days for which the vessel is entitled to demurrage. Thert' must be a decree, therefore, in favor of 1.he libelant in the first-named cause for the freight and for demurrage for five days, with interest and costs; and decree in favor of the libelants in the second cause for the expense of storage of the cargo at Oran, with insurance, for three weeks, and for :any fall in the market price during three weeks before its arrival, with interest and.. costs; the latter decree to be offset against. the former, the stipUlatt>rson either side to be held only for the difference.
BROWN ,. CERTAIN TONS OF CoAL.
w: D. Michigan, N. D.
SHIPPINo-CARRIAGE OF GoonS-DEMURRAGE.
Libelant, the owner of three barges, one of them propelled by Iteam, en· tered into an agreement for the transportation of certain coal at a fixed price per ton. the coal to be delivered at the port of discharge on board, and to be there unloaded within three days after its arrival. There was no charter· party or contract of hiring in whole or in part, and the entire negotiations were in Parol. Bills of lading were afterwards made out in the usual form, and transmitted in the ordinary course of business. Upon arrival at port of dis· charge, the facilities provided by consignees for unloading were so poor that only one barge could unload at a time, and about 11 days, including ODe Sun· day, were taken up in the discharge. Held, that the parol agreement for a discharge in three days was superseded by the bill of and that the con· signees were entitled to a reasonable time; that six days. Including Sunday, was such reasonable time; and that demurrage should be allowed for the reo maining five days.
I. ADMIRALTY-JURISDICTION. A libel by the owner of three vessels constituting "one ship" against the cargo for demurrage arising from unreasonable detention by the consignee at the port. of discharge is withiD. the admiralty jurisdiction of the district court.
Where the owner of the ship libeling the cargo for demurra/l;e had knowl· edge of what had been done by the master, and had proceeded in reco/l;nitioD of it. it is too late for him to object to the authority of the master to execute the bill of lading under which the cargo was carried, on the ground that the bill was made in the home port.