RILEY II. A CARGO OF IRON PIPJI&
CARGO OF IRONPlPBs.
(Df.8trlot Oourt, 8. D. New York. November 2, 1889.)
DEMURRAGE-ABSENCE 011 STIPULATION-BuRDEN 011 PROOIl.
When the contract is silent on the subject of demurrage, the burden Is on the ant to show some negligence in the consignee of the cargo. or that he eJl:ceeded some customary period which. by implication. is apart of the contract.
SAME-NOTICE 011 CLAIM-ACTION IN REM.
When no notice of any claim or lien for demurrage is made at the time of delivery of the cargo. nor before the commencement pf a suit to recover demurrage, no action 'f,n rem against the cargo can be sustained. Though the cargo has not been discharged within a reasonablE! time, the vessel cannot recover demurrage, it it appears that the unreasonable conduct of libelant has induced the delay.
011 VESSEL OWNER,
Peter S. Carter, for libelant.
Action for demurrage.
Alexander &7 Ash, for claimant.
BROWN, J. The contract being silent on the subject of demurrage, the burden of proof, in order to rebover for demurrage, is upon the libelant to show that the consignee is chargeable with some negligence in unloading the vessel, or that he exceeded some customary.period which, by implication, is a part of the contract. A Cargo of Lumber, 23 Fed. Rep. 301; The Z. L. Adams, 26 Fed. Rep. 855; The John Cottrell,34 Fed. Rep. 907; RailrolldTies, 38 Fed. Rep. 254. No customary period is proved in the present case, and the testimony is conflicting as to the precise time necessary to unload the cargo. If it was improper that more than one boat should be sent a time to Dobb's Ferry, the libelant who took them there is as much chargeable with blame as the respondent. His own acts preclude him from claiming damages on that account. His objections to unloading at the steam-boat wharf prevent any account of the delay in going to the upper wharf. The weight of evidence is six days were a reasonable time for unloading two boats like those in which cross-beams created some delay. There would remain one day's demurrage, to which the libelant might have been entitled; but his unreasonable conduct in interrupting the delivery for a considerable period, to the loss of the respondent, before the delivery was completed, more than balances the one day's demurrage; so that nothing is equitably due him; and as the weight of evidence against the libelant's testimony is that no notice of any claim or lien for demurrage was made at the time of the delivery of the cargo, nor before the commencement of this suit, some time after, no action in rem against the cargo Can be sustained. Bags of Linseed, 1 Black, 108; The Giulio, 34 Fed. Rep. 909,912. The libel is therefore dismiSE!ed, but without costs.
lReported by Edward G. Benedict, Esq., of the New. York bar.
JORGENSEN t1. THREE
THO't1sAND!ONEl HUNDRED AMi,
CASKS OF CEMENT. 1
(mstrict Oourt, E. D. New Yor7c. November 27,1889.)
by' perml.sslonof tb.e collector ()f the port, entered awarehouse in which goods were 'stored in the custody of the collector, and made service ot process, and ,a1l1xed a notice ofseizureto:llhe prop'erty, and thereafter keeper vie,. ited the'St;ore-house three times II day;, though wIthout entering it., Held, that the , marsbal had ell'eeted an attaehmen"lll1dwas entitled to tax asouatody fees such amount as he had actually pMd a ,keeper for that service.
In.Admiralty. On appealfrom,:taxation of marShal's 'fees. Certain casks of cement, brought into the port of New York on the bark Dictator, were taken into custody by the collector of the port for of duties, and were stOred in ll. bonded' warehouse. A libel was subsequently filed against the property by the master of the Dictator to recover freight, on which libel process was issued. No claimant appeared for t,he property. , Butkr;' Stillman &: Hubbard, for libelant. OharlesM. Stafford, U. S. Marshal; in pro. per.
J. ,This case (Jomes before the court upon an appeal from the taxation ofthe marshal's fees. ,The only item in dispute is a' charge for necessary expenses of keeping the property proceeded against, which is 3,173 casks ofoement. At the time the process was issued the cement was in: the custody of the collector of the port, stored in Bonded Store No. 23. Upon receipt of the processbpplication was made to the collector to allowthe rtlarShal to s'eize the property,whereupon the collector gave that the warehouse be opened, and that the deputy-marshal enter therein for thl'l purpose of makinK a seizure of the property. Under that permit the warehouse was opened, a.nd ,the marshal's deputy allowed to enter and make service of the process, and affix a n()tioe of seizure to the property Thereafter, according to the affidavits, the marshal'e keeper visited the store-house three times a day, every day, and the marshal now seeks to tll.X the sums paid by llim to the keeper for the services described. It is impossible, upon these facts, to deny that the marshal effected an attachment upon the property. the collector had the property in his possession, when he opened the warehouse for the pose of permitting the property to. be seized, and allowed the deputymarshalto entel';'levy his attachment upon the cement, and affix thereto notice tliat' thesa'rne had been seized by virtue of the process ofthe court, the marshal's'cuStody,of the property was complete, and it was his duty to'see that the property was forthcoming to answer the decree. An affidavit by the store-house keeper is submitted on behalf of the objectors, which sh()ws that since the time the attachment was levied the
'Reported by Edward G. Benedict, Esq., of the New York bar.