of Appeals, Second CirC'ltit. December Term, 1$91.)
Illt:Hu1lBA,GE-CuARorER-RATE OF DISCHARGE OF CARGo-CUSTOHOF PORT.
The lcharter of a ship for a cargo :of.8,000 tons of chalk 'provided that (largo "all fast all sbe .candellver." She was capable of discharging more than 150 tons per day. WbUe the' carll:o wall being dillcharged, the consignee noti1led the ship "that the customary delivery of chalk at'this port Is not over 150 tons per day, " that he could Ilot take care of more, and that he ,would hold the ship respODllible for any over that amount put on the dock. Held, that the shIp, under her chllrter, was entitled to. deliver as: fast all she could, without reference to the custolll tlle ,port, and that the consignee, havlng provilied inadequate facilities for such rapid discharge, was liable for demurrage on account of the ship'. delay thereby caused. . .
B. SAM_PI$C;:HAKGE FlIOH SlNGLB HATOH. .' ' The liMp had two hatches, from which cargo could have been Intotwo lighten of' 'proper size on One side, but the consignee did not pl'ovlde lighters capabli,\ot cargo fl'9lJ1,bp\h tbe same time. Held, that the ship did DOt lose her right to demurrage byrlot breastingout, 110 as tc admit of diScharge from both sides ()f the venel. ' 42 Fed. Rep. 282, modifled.
Appeal from ,the .Circuit, Court of the United States for the Southern District of New York, In Admirolty. Libel by EbenezerH. Davis against a cargo of chalk, lately on board of the sbipGlenfinlas, and Howard Fleming, consignee, for demurrage. Decree.. .(or libelant; Respondents appeal. Modified.
ST.\TEMEIfl BY TilE COURT.
The sbipmen6nlas am'ived at tbeportofNew York on July 5, 1889, with a cargo of 8,000 tons.of chalk consigned to Howard Fleming. She is a large'vessel i , 2,148:tons regiIlter, 280 feet long, and with four hatches. The cargo was brought under a charter which provided that she was "to discharge at two safe wharves, as ordered; any expense incurred * * * in shilting from first to second wharf to be paid by charterers, or so near thereunto as she may safely get, and there, always afloat, deliver the same." It also contained this provision: "Cargo to be supplied all fast as vessel can load, and to be discharged as fast as she can deliver. * * * If required, ten days on demurrage, over and above the said laying days, at four pf'nce per registl::red ton per day." This would be $175 per day. The Glenfinlas prom ptly notified her arrival to the consignee of the chalk, and asked for a berth, repeating the request on July 6th (Saturday) and July 8th. On the latter day the consignee asked the ship to select a dock where lighters could go along-side and rt::ceive cargo, promising to place lighters. along-side as soon as she gave notice she was berthed. The ship secured a berth lit Atlantic dock that same day, gave notice, was in her berth ,ready to dif:1charge at 6 A. M. Tuesday, July 9th, and rigged two hatches with tackle. No lighter came till 5:30 P. M. of the 10th, too late to commence discharging. Work commenced on Thursday, the 11th, and continued the rest
ipto two eanal-boats, the Mary Almand Home Rule, which were too long to admit of both being' worked at the same time on ;Qne side, and not strong enough to take cargo from more than one hatch. During these three days 600 tons were discharged from the one hatch. 'On the 11th the consignee notified the l$hip that "the customary delivery of chalk at this port is not over 150 tons per day," that he would not tak,e cllre of more, and would hdld the ship responsible for any more put on theqock. The ship replied, at once, ihsisting that, under her charteltl (be chalk was to be received. as fnst as she coilld deliver. Work wils:resumed 6n. Monday, July i5th; and contihueduntil 9:30 A. M. of J:!'riday, the 19th: Two lighters received cargo, the Hope'and the Baltie. They were ,of appropriate size and sufficientstrengthto'ha:ve worked at tbe same,time on one side 'of'the vessel,thu8 admitting of discharge from tW9 had they Carne together; but the Baltic did not appear till 1 :30r. M. of the day on which the Hope the latter being fWly by \):30 A., M. "These two lighters took 800 tons. On Frid,ay, the 19th, the vessel was ordered to Taintor's dock, on New· town creek; too late to'avail of the tide that day. ,:Shemovedto her second wharf on Saturday, the 20th; ;andworlt began thereon the afternoon of the 22d, 60 tons being discharged that day. Taintor's dock is one of the principal docks in the city for the delivery of chalk. It is fitted with a railway, so arranged that discharge is possible from only one hatch a time. :.On the next four days, including Friday, July 26th,344 tons were discharged. Up to this time the weather had been unif<Jrmlyfine, ,there no rain to interfere with the discharge. Afterwards there were occasions when the 'work was prevented' by rain, there were slight delays from accidents to the cars on the railway, and more than half a day was lost in consequence of insufficient waterin the creek, whicbprevented ehifting the Glenfirilas, so as to bring another hatch into position. The discharge was com· pleted ouFriday,Aul!ust 2d. On July 19th theapip protested against the slow dischll,rge, and on the 22d wrote twice, complaining of the UI;lsuitll:ble,character of Taintor's dock, as not permitti.ng rapid'discharge. 'T4e decree,below allowed demurrage fotseven days. Robt:rt D.Benedict, for appellant. Wilhdmus Mynderse, for appellee. Before WALLACE and Circuit Judges.' LACOlllBl!),'Circuit Judge. We are of tpe opinion that the learned district judge was entirely correct in holding that the charter provided for the .rate of delivery, at such places and during sl1ch days and times as be 'properly worked; under the usage of the port; and the that the evid"ence introduced by the claimants........;that according to the usual practice of the port. as respects the delivery of ordinary cargoes of chalk, a hundred and fifty tons per day is as much as is expected to .be receh:ed delivered-does not control the plain intent of the charter to provIde for rup,id discharge during working hours; especially as the vessel was a much larger one, 'alid' .the cargo much larger, than 'were
ullu$l ordinarYltraof$portation of chalk cargoes. In the discharge of Qrdinary cargoes, Vessels of her si,zeuse at least two hatches, and der the charter the was entitled to do so despite the evidence of a contrary practice having reference to smaller vessE!ls and smaller cargoea. We do not think, however, that the Glenfinlas lost that right, at her first wharf., by not breasting out, in view of the evidence that she was attendeduby lighters which, could easily have taken caig;o from two hatches at the same haa they come together. The rl;l.te of discharge from during .the fl1ir weather, both at the and at TaiI1tor's doclt, was ,200 tons or a little over per day. It must be ferred o,t least 400 tons from two hatches, which woUld ,give eight lay..days, and a day may be allowed for removal to th,e: secon:d wharf. The lay-day!! began Tuesday, July 9th, and expited (including t1;le Jor removal) on Thursday, July 18th. She was 15 days Illore, for which she should be allowed the de. mumge Iltthe. rate by the The cause is remanded for further proqeellings, in, with views herein expressed. ' Costs of the district court and of this court to the libelant. .
THER. R.·· KIRKLAND.
(DfBtrl.ctOou'l't, E. D. Virginia. January 7, 1880.)
On a nIght of moderate darkness, and in the open sea, a tug struok a scbooner on ber starboaJ'(1! eide forward"probably at an acute angle.. The tug's lookout and who saw the schoonllr froIll a minute and a half to two minutes before the 001lision, and at 8 distanoe of over 500 yards. testified that she showed no lightshand they sUPPOllad sbe was, going tbe same witb tp.emselves; but tbe elm was notpOl'tedor the engineer until an instant before the oontact. The sohooner'S erew 'tlestifled'tbat her lights were up. Held that. under the rules requiring Ilteam-vessels to keep out of the way of sailing vessels, and to stop and reverse if necessary wben' approaobing anotber vessel, and requiring an overtaJnng. vessel to keep out of the way of the vessel preoeding bel', the tug was in faUlt, irrespective of the question of the lights.
SAME-EvIDENOE-ADMISSIOJ!l'S OIl'. LOOKOflT.
piD . SAIL-n'uTY 0;
Unsworn admissions made by the lookout of a vessel the day after a collision a1"& inadmissible as eVidence to obarge the vessel with fault.
8.' SAME....DflTT OIl' Lo'OKOUT.,
W}len thelook.out of a steamer resorts to tbe pilot-house,he subjeots bimself to. the suspicion that he is tllere largely for hie own oomfort.
In Admiralty. Libel by O. E.Mllltby against the steam-tug R. R. Kirkland for damages for a collision. Decree for libelant. Sharp Hughes, for libelant. ElliB Thom, for respondent.
HUGHES, J .·. The schooner J. J. Housman set sail from Norfolk on the morning of the 8th September, 1879, at or about half-past 1