JOHNSON 't1. OCEAN 8. 8;<:0.
mark may be regarded as a matter of inducement to the charge of fraud. 'l'he latter is the substantial charge, which we think the defendants .hould be required to answer.
JOHNSON t1. OCEAN
(Dtstrict Court, E. D. New York.' September 80, 1890.)
DJDlUBRAGE-CARGO STORED ON LIGHTERS-EvIDENCE.
The Ocean Steam-Ship Company brought cotton to New York under through bill!! of lading, by which the compauy undertook to convey the cotton to New York, and deliver it along-side certain designated foreign steam-ship lines. At one time the docks of the company became clogged with cotton, and the company shipped it on' lighters,to be transported to the foreign lines, and held in the lighters until these steamers were ready to receive it. The lighters being in consequence delayed, their owner brought this suit for demurrage, alleginjl; a special agreement by the Ocean Steam-Ship Company to pay for the time the cotton remained on the lighters. The answer alleged an agreement that the Ocean Steam·Ship Com-l pany was in no case to be responsible for the demurrage of the libelant's lighters, but that the same was to be collected from the foreign steam-ships. Held, that the steam-ship company was liable for demurrage.
In Admiralty. Suit for demurrage. Alexander & Ash, for libelant. Hoadly, Lauterbach & Johnson, for respondent.
BENEDICT, J. This is an action brought, by the owner and charterer. of certain lighters to recoverof the Ocean Steam-Ship Company the sum of $1,490, alleged to be due the libelant for the detention of his lighters under the following circumstances: The Ocean Steam-Ship Company was alarge carrier of cotton shipped in Savannah for New York under through bllls of lading, by which the Ocean Steam-Ship Company undertook'to convey the cotton toNew York, and there to deliver it alongside the steam-ships of certain designated foreign lines for transportation abroad. In October, 1888, the docks ofthe Ocean Steam-Ship Company in New york became clogged with cotton owingto the faet that cotton arrived from Savannah faster than the foreign steamers were able to receive' it. To relieve their docks, the Ocean Steam-Ship Company shippe<;l quan:tities of this cotton on lighters, to be taken in. the lighters to the piers ot the prop,er foteign steam-ships and there to be held in the lighters untif steamers were able to take it. The result was a detention of the lighters at the piers of the foreign steam-ships, e:xtending from three to ten days each. Among the lighters so used were lighters belonging to the libel';' ant, and for this detention of some of these lighters the libelant in this action seeks to hold the Ocean Steam-Ship Company liable. The sets forth a special agreement between the libelant and the Ocean SteamShip Company, as follows: '
",To carry and transport for the Ocean Steam-Ship Company this cotton to and along-side certain steam-ships in said port, and to deliver the same to the
Reported by Edward G. Benedict. Esq., of the New York bar.
saldBteatn'l$bips,andr fllrther,to ator,l! llnd.keepsaid all board of .. pnti! the,stel:!-m-sbips were ready to receive the cargoes, and to pay detnilrraJ!'e ,to of the port for the time such cargoes, respecti velr, Were kept' a'iidsootedon Bucb lighters until said steam-ships were ready and did receive the same."
The answer denies the contract set forth in the libel, and sets up by way of defense an between the libelant and the company that the Ocean StE-.am-Ship·Coinpany was'ib. no case to be responsible for the demurrage ofitbe libelant'slighters. , ,,' , The testimony presents a conflict of testimony in regard to the agreeas in regard to theagreen,lentset n.p iii' the answer. 'J.1helibelant testifies to the making, of the agreelUent ,set 'f9rth lottie lipdwith the,agent ofthesteam-ship company. Mr. 'Walket1 denieshavmg 'made any such agreement, and as!'Elrtsthat the was to look to theJore!gn steam-ship lines,for; the, detention of his .lighters, and: not to Ocean Ste,am-$bip Cpmpany·. <thetestimon:t0f the libelant in Iegardto the <iontract set lip in, the liq.e[is,.hmyev.er, corroborated by the testimoby of another witness, and the probabilitiesofthe case seem to me tof8vor the position of the libelant. It will be noticed that the libelant had no contract with the steam-ship lines. Thecottbn delivered'fram,the libelant's lighters to the foreign by stich steamers fron1 the Ocean Compahy i'npursuanceof contracts riuide with the CPJ?pap:y, by whJcp, that" pOtn p/l:ny, cont,racte,d ,to deliver, seen, steam-, to the fw, the demprrage questign·. This bW;Dg, lin RElJhe,defendanteets up \Vould !?,e by: of any to "demurrage; to bet.we,en $5,000 and $8,090, by the he took the cott9n.on bQ8,rd hIS highly he would mlil1}ean agreement Jmn;Qf any.:compensatio,n for such 4etention. th.e Ols,de 1? eacq t?e Ogllax:x l,'egl}1l:\rly J,t() thatcoOlPllny tp? and tge S8 01: not quesT: tlone(l;pythe Ocean"Stea9bShIp ColllPliny,nor made at tpneip'l,'eiard. to is 'ihait of, tlle pl?mpany made out ihthis form
m, e.l:,',rQ"',m th, e, ,t,e,a, l,mes",l>)'}.qe"o,cea,',n, ComplUlY, this by the :libelant's An ar.rangement 'soanomalol,ls. requires a C?f,t,h,e l,i,ghte"fs.;h,,er,einsu,ed,':,for,'," not paId by: the CoIl)." pany, nor was he informed of the fact of 8uch collection until after this suIt was brought. ,Thiscircumatance, accord with the sta,teD)ent