for any failure after November 1st, she must be held responsible.-While the conclusions above stated are satisfactory to me, I appreciate and feel the force of the able argument presented by respondent's counsel. The case is not free from difficulty, and I am glad that my judgment is not final.
THE GLENFINLAS. 1
CARGO OF CHALK,
(District Gourt, S. D. New York. April 10, 1890.)
DEMURRAGE-U:t>LOADING BY LIGHTERS.
A large vessel, having four hatches, brought a cargo of chalk to the port of New York under a charter-party which contained the following provision: "Cargo to be shipped as fast as vessel can load, and to be discharged as fast as she can deliver." Her draft being considerable, she was first discharged into lighters out of ,one hatch only. The lighters were in no way improper, they were worked with dil,and the chalk was received as fast as the ship could properly deliver out of the one hatch thatwas used. The vessel was not breasted off the wharf, and no demand or 011'er was made by the ship to breast her off, or to work another lighter on the other side. Held that the vessel could not recover demurrage for this period. After the vessel was .lightened she sent to a chalk dock, where she could discharge from but one hatph a day. The master complained of this wharf from the first, and claimed that she should have been discharged from at least two hatches simultanenusly. Claimant contended that the vessel had discharged 150 tons per day, which was all that the custom of the port required. Held, that the clause in the charter Providing for the discharge of the vessel "as fast as she can deliver" was not controlled by the alleged custom. but was intended to secure to her a discharge according to ber size and means of delivering a chalk cargo in this port. and therefore at a dock reasonably adapted to her means of delivery, if such docks for chalk were reasonably procurable. as in fact they were. The vessel was therefore allowed demurrage for one-half of the working days after commencing at this Wharf, assuming that, in discharging at a proper wharf for such a ship from two hatches instead of one, the cargo would have been discharged in half the time.
SAME-DISCHARGE FROM SINGLE HATCH-USAGE.
In Admil."alty. Action to recover demurrage. But'lcr, Stillman &; HUbbQ,rd and Mr. Mynderse, for libelant. Robert D. Benedict, for claimant.
BROWN,]. The libelant claims demurrage for the detention of the ship Glenfinlas in the discharge of a cargo of 3,000 tons of chalk at this port in July, 1889. The cargo was brought under a charter which provided for "delivery along.:side to be taken at the merchant's risk and expense;" for "discharge at two safe wharves, as ordered by the consignee;" "cargo to be shipped as fast as vessel can load, and to be discharged as fast as she can deliver;" and "ten days on demurrage over and above the Said laying days at fourpence per registered ton per day." Her register was 2,148 tons. The vessel went first to Findley's stores at Atlantic docks, where she could only be discharged into lighters. There two days' delay arose, for which the consignees are liable. The cargo was
, Jaeported by Edward G. Benedict, Esq., of the New York bar.
there partially discharged into Beverallighters, which were supplied one after another from the 11th to the 19th of July, when the ship was ordered by the consignees to another wharf, as they had a right to do under the charter. During this perioJ the evidence does not show that the lighters sent were improper, or that they were not worked with diligence, or that the chalk was not received as fast as the ship could properly deliver from the one hatch that was used. The evidence indicates that, for the most part at least. additional hatches could not have been worked, because only one lighter at a time could be used on the same side of the ship; and the libelant's testimony states that, in order to work another lighter, it would have been necessary to breast out the ship from the wharf to ,admit another lighter on the other side of the ship. Her berth ,was taken by her master; she was not breasted off; there was no demand or offer by the ship to breast off, or to work another lighter on the other side. She therefore cannot recover demurrage for this period, except , for the two days aboYereferred to. The second wharf to which she was ordered, and which was reached on, the night of Saturday, the 20th of July, was Taintor's dock, Newtown creek, one of the principal docks in the city for the delivery of cargoes of chalk from smaller vessels. Discharge there was commenced on Mon· day moming, and finished on Friday, August 2d. During this time a day was lost through raill. During the other working days the discharge about 160 tons a day. Only one hatch could be worked at that dock, and much evidence on the part of the claimant shows that, according to the usual practice in this port, as respects the delivery of ordinary cargoes of chalk, 150 tons per day is as much as is expected to be rer,eived or delivered. The claimants contend that this practice constitutes a usage, which is to be read into the terms of the charter, so as to relieve the consignee from any obligation to receive and provide for morethan 150 tons per day. The ship, it is said, could notlawfully deliver more than the consignee was bound to receive; and the agreement "to· discharge," it is said, is limited to the amount which the ship had a legal right to deliver under the local usage. I do not think that was the in·, tention of this clause of the charter, or that it can reasonably hear that. construction. Its meaning, I think, is to provide expressly for the rate' of delivery at such places and during such days anI times as she may be properly worked under the usage of the port. It is the office of usage· to supply what is not expressed; not to override the language or the' meaning of what is written. Usage in this case would properly determine the working days and hours, because the terms of the charter' plainly do not intend to touch that subject. Equally plainly, as it seems to me, it does intend to determine the provision to be made for the ship's rapid discharge during working hours. It would be an obvious breach of the charter stipulation, as it seems to me, for the consignee to refuse· to receive any more cargo after 12 o'clock on the ground of local usage, merely because 150 tons had been received during the forenoon; or 00., refuse to work two hatchp-s instead of one, for the same reason. This, vessel was a much larger one, and the cargo much larger, than were usual
)p. the ordinary transportation of chalk cargoes. She had fO)lr hatches . .. discharge of ordinary cargoes, at least two would be used a vessel of that· size.. A .:practice having reference to smaller vessels · and IImaller cargoescou,ld not reasonably be applied t9 a much larger ,one, l!i9 all to limit the, disqharge to a single hatch. The master comof Ta,intor's 40ck litS anunsuitl!-ble one from the firEjt. The clause ·jp. provi4ing fo:r the discharge of the' vessel fast as she can · must .be held. i»tended.to secure to her a discharge according to means· of dlllivering.a chalk cargo in this port; and, theredock rellsonably adapted to her mean!'! of delivery, if such · for ohalk were.reasonably procurable, as in fact they were. 'l'aintor's ,dock;iwberea dischStrgecould b.e made from only one hatch, was not, ,in my judgmen t, a proper dock [or such a ship, under such a stipulatioD. leaves n9 doubt that otl1er docks were procurable where the,cargo.could have \>een discharged ,from at leasttwo.hatches. Had tbere been any established usage that all chalk cargoes should· be disI oua partiouill-r dock, or at certain specified' docks only. such I <think, would have attached to this stipulationj and the duty .of tb,e consignee.wo,Qld have been only to discharge as mat as the ship · ;SOQle,ol1e of those docks. But no such usage is shown. J TmUlsage claimed is. of a kindwp.,(llly different, viz.· to:limit the amount to PEl :received to a .:¢ertain number of tons per day.,.., Such usage, if be ipcompl!otible :with the charter claus.e,and hence is by it,. howeverj·shows so much difference in " per day in various cases, that I do not think ,any ,definite usageQn that subject is proved to the.extent claimed, or · Qlore than, a considerably varying practice, ,having reference . ·evide,ntly .to. the igeneral circumstances of the case. Without attempting., upon. the evidence, to determine just how many · be per day ,r shall, thereforej allow to the con, signee only one-halfoftbe working days after commencing at Taintor's ,doQk; ,lijISuming; that;,by discharging at a proper dockfor such a ship ·from; two Ihatches instead of one, the. remainder of the cargo would have in hlLlf the time. That would have. completed the dis,charWl' 1;>y Friday night,. July -26th. The libelant is therefore entitled to demurrage forthe,·sevendays remaining to August2d, and for the ·twopti.or days above, referred to, making nine days in :all, with interest ,and costs.
(District Court, S. D. New York. April 5, 1890.)
MARINE INSURAN<JE-POLICy-STIPULATION FOR JURISDI<JTION.
A stipulation, in a marine insurance policy issued in a foreign country, providing that suit on the policy shall only be prosecuted in a specified foreign court, is in·· valid. Where a policy of marine insurance was issued in a foreign country, but to American citizens, through brokers belonging here, on freight of a vessel of the United States, and in respect to a voyage between South American ports, held, that no equitable reasons existed for a court of admiralty of this country to decline jurisdiction of a suit on the policy, though the policy provided that sucb suit should be brought only in a certain court in the country where the policy was issued. .
In Admiralty. On motion to dismiss the libel. Carpenter &:Mosher, for respondent. Wing, Shoudy &: Putnam, for libelants.
BROWN, J. The respondents are a corporation organized and doing fire and marine insurance business' at Toronto, Canada, and having a branch officein New York for tire insurance only. In November, 1887, the company executed at Toronto a marine policy on. freight, per bark Aquidneck, belonging to the libelant Slocum, a citizen of Massachusetts, upon the application of Gallaher, Currey & Whitney, insurance brokers of New York, in the sum of $1,000, insuring Simpson & Shaw on aC}-count of whom it might concern, in case of loss, to be paid to their The company had conformed to the requirements of the statutes of the state of New York as respects the transaction of fire insurance business. within this state, but not as respects marine instlrance, and it had filed acertificljlte providing for the service of papers upon its agents this state as required by stll,tute. The present policy was issued at Taronto. A total loss having arisen,. the above libel was filed by Simpson & Shaw, residents of this state, andhy Slocum, a resident of Boston. , The policy contains the following clause: .. And if the 'assured proceed at law or equity, by suit or action, to recover the whule or any part of the sum assured oy this policy, such suit or action shall brought and prosecuted in her majesty's court in the city of Toronto, and nut elsewhere, within twelve months -from the date of such loss or damage, under the pt'nalty of forfeiture of all benefit of this insurance. and of the same becoming thereby wholly void." Process was served upon the agent specifiedin the certificate. The respondents move to dismiss the libel upon the ground that this court, if not without jurisdiction of the cause, should, as a matter of discretion, decline to entertain it in the face ofthe above-quoted stipulation in the policy. The authorities, I think, sustain the general doctrine, that a stipulation inserted in a contract limiting. the remedy for a breach of the contract to a particular forum is not a valid stipulation. Several cases have held that slich a stipulation, distinguishing between the different courts of the
lReported by Edward G. Benedict, Esq., of the New York bar.