this time were importing culm coal oniy. These facts, however, were not known to the libelants. In the case before citt-.d it appears that vessels loading with culm were loaded at the rate of 150 tons a day. A wit· ness called for the respsmdents, in the present case, who had often been at the mines, but does.not appear to have worked them, stated that 40 to 50 tons a day was a fair average for loading culm conI; the reason being that the various kinds of coal were all sent down from the mines together by cars, a distance of some 10 rr.iies; and as anly a small portion of the whole was culm, it could not be loaded faster than received. When vessels were not present to take the other coal, mining was suspended. The testimony also shows that the reason for the delay in this case was the absence of other vessels to take the round coal that came down from the mines with the culm. There is no doubt that the charterers intended to take a cargo of culm coal only. It is equally certain that this was not stated to the respondent; that he had no knowledge of it, and was not chargeable with knowledge of it. Upon a general charter for a "cargo of coal," without more, the charterers were not entitled to subject the ship to the long delays incident to loading a special kind of selected coal. To do that the charter should have provided for that kind of coal; otherwise only the usual time for loading the ordinary run of coal can be deemed within the contract, except in so far as this time might be extended by the special exception named; that is, waiting for her turn "subject to the regulations of the mine, and every unavoidable hinderance that may prevent the loading." Under these exceptions three days' waiting for the steamer are proved. There was no further hinderance in loading the ordinary run of cargoes. The libelants admit five days to be a sufficient time. for loading; and the testimony of other witnesses shows that that would be in fact more than sufficient for loading the ordinary run of coal. Deducting eight days, there remain five, for which I must hold the claimants liable, at the agreed rate of $40 a day. Decree for $200, with costs.
PH<ENIX HORSE-SHOE CO.l
(DiBtrict Court, S· .D. New Yor". April 80,1888.)
SHIPPING-UNltEASO:l<AllLE DETENTION-INJURY llY ICE-HALF DAMAGEs.
I,ibelant's canal-boat was sent to respondent's lind consignee's dock, and, by reason of the presence of other boats, and insufficient accommodations for mooring and unloading, was detained, anrl while thus waiting to discharge was cut through and sunk by ice which formed in the riYer. Held, that respondents were liable for not furnishing reasonable facilities for unloading at that season of the year, under the daily liability of boats to injury from ice; but, as libelant's boat wa.s shown to be old and unfit for .any naYigation in ice, held, following the practice of this court in regard to such boats, where no express notice of weakness is given, that only half damages should be allowed. .
'Reported by Edward G. Benedict, Esq., of the New York bar.
ULRICHS V. PHCENIX HOBBE-SHOE 00.
Hyland &- Zabriskie, for libelant. Eugene Smith and John A. Deady, for respondent.
BROWN, J. The respondents engaged one Henry Nelson to transport a quantity of scrap iron from Brooklyn to their dock at Poughkeepsie. Nelson engaged the libelant to take the cargo on board his canal-boat Lizzie and Willie. She was towed up the North river, and on Saturday was left by the tow at respondents' dock, outside of three other canalboats, which were moored at the end of the dock. The dock was a short one. about 60 feet wide, and the only accommodations to moor or unload were at the end of the dock. Considerable ice soon appeared in the river, and on Wednesday forenoon she was cut through by the ice on her port or outside quarter, while the tide was running strong flood. She was £ltill in the same position, outside of three other boats, awaiting her turn to unload, and, when seen to be sinking, she was cut loose, to avoid carrying down the other boats, and she sank in 30 feet of water, a short distance above. The libelant testifies to several conversations with respondents' agent upon Monday, in which he says that he asked for safer accommodations for his boat; but these conversations are all denied by the respondents' witnesses. Such conversations or complaints would be much less likely to be remembered by the respondents' witnesses than by the libelant: But several circumstances in his testimony, about which he is proved to have been mistaken, prevent full confidence in the accuracy of his recollection; and I have great doubt whether any specific complaints were made before the morning of Wednesday, when it was too late, and the ice too thick, to enable any change to be made in time to be of benefit to the boat. W'hether any such previous notice, however, was given or not, I think the respondents must be held liable, under the circumstances, for not furnishing reasonable facilities for the mooring and unloading of the canal boat at that season of the year, and under the liabilities to injury and the danger from ice likely to arise daily. In engaging canal-boats to come up with cargoes to their dock, it was the respondents' legal duty to furnish reasonable facilities for unlmiding, considering the actual circumstances of the time, the weather, and the season. The ordinary time allowed to unload a cargo of 255 tons, such as the libelant's boat carried, was three days. It could have been unloaded in two had there been no detention from prior boats. But there were three boats ahead of the libelant's; and on Wednesday, when the libelant's boat sank, the first along-side the dock had not yet been discharged, and two others still remained to be discharged. There wasno place on either side or adjacent where the libelant's boat could go to discharge, and this boat was thus kept unreasonably in a very exposed situation. The resuperintendent had an office in New York, and was within quick telegraphic communication. It was not reasonable or justifiable that boats should be sent up and kept long exposed to the danger of ice at such a dock at that season. The superintendent must have known that the dock was already incumbered by so many other hoatstha,t the
libelant's discharge could not be had within a rer.sonable time. On the other hand, the libelant's boat was plainly an old ahd weak boat, unfit for any navigation in ice,or to withstand any severe pressure. While lying outside of three others, it was most exposed to the force of the ice in the strong flood-tide, and she was cut through where the pressure of the ice would naturally be strongest. Whether a new and strong boat could have stood the pressure in that exposed situation it is impossible to say. In analogous cases, as concerns injuries to very old boats, the practice in this court has been to allow half damages only I where no express notice of their weakness is The Reba, 22 Fed. Rep. 546; TheByracuse, 18 Fed, Rep. 828. Upon the evidence I do not think this boat was worth over $300 cash. The libelant has received $125 on account of his loss,and I award him half the residue of $175, namely $87.5,0, with interest and costs.
PETRIE· fl. HELLER.t
(Diltrict Court, S. D. Nf/U) York. June 1, 1888.)
SHIPPING-ACTION FOR F'REIGHT-SET-OFF-DEMUllRAGEPAID WUILE WAlT· !NG FOR CARGO. ·
Demurra$'e paid by respondent to a vessel for cargo to be brought. to her by hIm, can be offset under his contract for Its transportation by the libelant, against the freight dne the latter only when the liability to such special damage is fully understood. and fairly within the contemplation of the parties.
ll. SAME..,-TIME OF DELIVERy-BILL OF LADING-REASONABLlll DILIGENCE.
Libelant contracted to bring cargo in his canal-boat from New Haven. to be delivered to respondent on a schooner at Perth Amboy. Through delay in the arl,'ival of the canal· boat, respondent, under his contract with the schooner, was compelled to pay demurrage to the latter while she waited for it. This he claimed to offset against libelant's freight, and this suit was thereupon brought to recover the full freight; libelant claiming that his contract was only to deliver as expeditiously as possible; respondent, that the cargo was to have been delivered on a day certain. The bill of lading fixed no time for delivery of the cargo. Bad weather caused libelant's delay. Hela, that thll burden of proQf was on respondent to establish a positive day for the delivery of the cargo, and that, on the evidence. this had not been done, As. there was no proofQf lack of reasonable diligence on libelant's part, held, that he was entitled to full freight.
Parol evidence cannot be used to insert in a. bill of lading a. warranty for the delivery of cargo at a particular day.
In Admiralty. Libel for freight. Edward G. Davis, for libelant. Hobbs« Gij'ord, for.respondents.
BROWN, J. The above libel wl!S filed to recover the freight for transporting 114 tolis of tankage in November, 1887, from New Haven to t.hlt·
lReported by Edward G. Benedict, Esq., .of the New York bar.