92 FEDERAl. REPORTER.
FLOOD et aI. v. CROWELL. (Circuit Court of Appeals,. Fifth Circuit. No. 730.
SHIPPING-DEMURRAGE FOR DETENTION OF YESSEL-CONSTRUCTION OF CHARTER PAIn'y.
January 24, 1899.)
A charter party fixed the demurrage for each day's detention of the vessel "by the default" of the charterers or their consignees. It made no provision for "dispatch" or "quid;: dispatch" in loading or discharging the cargo, but fixed the minimum amount to be loaded or discharged each day, and provided that the lay days should commence "from the time the captain reports himself really to receive or discharge cargo." Held, that under the latter provision the lay days did not commence until the ves,sel was ready and in position to receive or discharge cargo, and that the contract did not bind the charterers for demurrage for a delay of the vessel in obtaining a wharf at which to discharge, notwithstanding a notice of readiness to discharge from the captain, where, as the owners knew or should have known, all the wharves at the port of destination were public, and under the exclusive control of a harbor master, who directed the movements and position of all vessels thereat, and by the rules of the port each vessel was required to wait her turn. l
Appeal from the District Court of the United States for the Eastern District of 'rexas.
The libel was filed December 2, 1896, alleging that the schooner Horace W. Macomber in October, 1896, at Newport News, took on board 1,600 tons of coal, to be delivered at Tex., to respondents, Flood & :\fcHae, under a charter party duly signed, stipulating for a discharge of 250 tons of coal per and for $90 per day for every day's detl'ntion; that on the 4th day of November, 1896, at 9 o'clock a, m., the master of the schooner notified Flood & McRae of arrival and readiness to discharge, and that on said day Flood & McHae directed the captain of the schooner to report to the harbor master for a berth, and that the harbor master told him there was none at the wharf, illld that he would have to Ill' alongside the schooner Swann, which he did until November 8, 1896, when the Swann sailed, and the Horace W. Macomber took her place at the Wharf; that his cargo was not discharged until noon of November 16, 1696. Libelant alleged that, by the terms of the charter party, 6 2 / 5 days from the notice of readiness to discharge were allowed, and that they terminated at noon on November 11, 1896, wherefore he is entitled to 5 days' demurrage, at· $90 per day. '1'he respondents filed an answer and an amended answer, and denied that the vessel arrived on the 3d of November, 1800, and that she wa's ready to discharge on that date. They denied that they accepted the said cargo on November 4, IS!)ti. They alleged that the vessel was discharged Within the. time contemplated by the terms of the contract, and therefore no demurrage was due. Answering further, respondents alleged that the master of the Macomber did give notice of his arrival on the 4th of November"I89fi, but that in truth and fact he had not arrived, for that he was neither able nor ready to ,discharge; that his vessel, got aground after his notification; that they had no control of any wharf of the city, but that the harbor master had absolute and entire control of the wharves, and that they notified him that they did not and would not accept his notice of arrival until he was berthed alongside the wharf and ready to discharge; and that they were ready at all times to receive the cargo whenever he was ready to deliver it to them, but were prevented from doing so because of the inability of the master of said vessel to deliver It to them, The respondents further answered that the libelant had frequent dealings with the port of Galveston, and had frequently contracted concerning the chartering of his vessel with respect to the port of Galveston, and that he knew at
On question of demurrage, see note to Randall v. Sprague, 21 C. C. A. 337.
FLOOD V. CROWELL.
the time of making said charter that the vessel would be subject to the regulations of said port, and that it should take all the risl,s of delay incident to the hlu'bor municipal regulations of the city of Galveston. They also alleged that the ordinances of the city of Galveston and the regulations of the port were part of the contract between the libelant and respondents, aud by an ordinance of said city Flood & ::\fcRae had no power to provide any berth at the wharves, but that the same was entirely under the control of the harbor master. The amended answer set out in full the ordinance of the city, which provides that the harbor master shall have power to regulate and station all ships and other vessels at the wharves, and to move any and all ships from one place to another, in his discretion, and gives saill harbor master the power to remove such vessels himself, in case of refusal of the master, and making such refusal to obey the harbor master a misdemeanor, punishable by fine and imprisonment, and providing for recovery of all expenses incurred by such refusal of the master of any vessel at the port of Galveston. The respondents further alleged the custom of the port that the harbor master shall place the vessel according to his discretion, and that, as soon as the harbor master did place the Horace W. Macomber, respondents immediately unloaded said cargo at a greater rate than 250 tons per day, as specified by the charter party, and received her cargo within a shorter time than was allowed by its terms; that they had no power to get a berth for said vessel, which was known to the owners of said vessel, and actually known to the master of said vessel; and that such was not the custom of the port. The libelant introduced a chartel' party signed September 22, 1896, by Samuel R. Crowell, for the vessel, and the Chesapeake & Ohio Coal Agency, charterers, of which the following are the parts bearing upon the case: "The said party of the second part doth engage to provide and furnish to the said vessel, at Kews, a full and complete cargo of coal, and pay to said party of the first part, or agent, for the use of said vessel during the vo;rage aforesaid, ($1.65) one llollar and sixty-five cents per ton of 2,2HJ pounds, delivered; freight payable on proper discharge of cargo, free of discount or commissions. It is agreed that the lay days for loading and discharging shall be as follows, commencing from the time the captain reports himself ready to receive 01' discharge cargo: Time for loading and to be discharged, rate of not less than (250) two hundred and fifty tons per day, Sunda;rs excepted. Consignees to discharge cargo at 27Y2 cents pel' ton of 2.240 pounds. And that for each and every day's detention by default of said party of the second part, or agent, ($90) ninety dollars per day, day by day, shall be paid by said party of the second part, or agent, to said party of the first part, or agent. The cargo or cargoes to be received and delivered alongside, within reach of vessel's tackle. The dangers of the seas mutually excepted. It is also agreed and understood vessel is now at Boston, and is to proceed direct to News, to enter on this charter." Edwin Bray, master, testified by deposition: That the Horace W. :Macomber arrived at Galveston, Tex., November Bd, at 6 p. m. That he notified Flood & McRae that she was in port, and ready to discharge, Wednesday, November 4th, at 9 a. m., and that they instructed him to notify the harbor master for a berth to discharge. He saw the harbor master about 10 a. m. the same day, and learned tbat there was no berth for discharging, and was ordered to haul alongside the schooner 'Villiam H. Swann. Tbat he hauled alongside said schooner at 11:30, November 5th. His vessel got aground, but he said she would not have gotten aground, if she had gotten a berth when Flood & McHae were notified. The consignees notified him when he reported his arrival that they had no controI of any Wharf, but that the city, througoh its harbor master, had absolute and entire control of the wharves and all berths for vessels; but he insisted on the terms of the charter party,250 tons per day from the time of reporting that the vessel was ready to discharge. Flood & McRae began taking cargo as soon as the vessel was berthed, but he said tbey did not furnish enough drays to keep the vessel working her full capacity for delivery according to charter party. E. O. Flood, of the firm of Flood & McHae, testified that he (his firm) had chartered three vessels from the owners of the Macomber before this charter, and produced a book entitled "Port Charges of the World,"-a standard work, and
92 F'EDERAL' REPORTER.
general use,-which c(;mtllined the ordinance relating to the exclusive powel,"ot the harbor master over berthing of vessels in the port of Galveston. This 'W3,S agreed to by counsel as an 'ordinance of the city of Galveston now in fOfce, and at the time of the arriv'31 of the Macomber. The vessel was brought in by the pilot on ::\'ovember 4th, at 4:80 p. Ill., and entered in the custom house on November 4th. The captain gllve verbal notice of arrival on the morning of the 5th, Whereupon witness denied that he had arrived until he got into a position to discharge. He was not then ready to diseharge. On the day of his arrival he got aground, and did not get his vessel off until about 1 o'clock p. m. the follOWing day, 5th. He was in no position to discharge until then, even if a berth had been open to him. There was no berth open for him at that time in the city. They were all occupied lJy other vessels.. Respondents hastened the' discharge of the Swann in order to get the Macomber a berth. Upon Flood & 1feRae notifying the master of the necessity of applying to the harbor master, he did so, and did not demur. The harbor master instructed him to place his vessel alongside the ,\ViUiam H. Swann. It is the custom of the port of Galveston for the harbor master to get vessels' berths in their turn, and the consignee must accept the vessel without regard to what pier she may be placed by the harbor master. On Sunday, November 8th, a berth became vacant, and she took position alongside the dock. On Monday, November 9th, at 7 a. m., he began discharging at the earliest moment possible. If demurrage were calculated from the time she got off the ground, it would lJe $811.25. The vessel went aground because a norther had sprung up. Flood & McRae finished discharging at 10 a. m., November 16th. Capt. .John Eo Chubb, harbor master, testified that there was no open berth for the 1facomber, with water sufficient for her. He is the only person vested with the power to regulate the shipping in this harbor, and no one had power to designate a place for the Macomber without his eonsent. '1'he custom of the port is to place vessels in herths in their order as they arrive. If all the available berths are occupied. and a coal vessel arrives, she would be outside of another vessel, and wait till the other vessel discharged. He acts under the ordinances of the city of Galveston, which vest bim with the power to regulate the shipping,-to designate berths for vessels upon arrival, which must report to the harbor master for berths. The district court gave a decree for the libelant for $888.35 demurrage, and I<'lood & 1fcRae' sued out this appeal. The record shows that counsel for libelant below (appellee here) filed a cross assignment of errors in the court helow, but the record shows no other steps tal,en whi<:h would perfect a cross appeal.
.Tohn C. Watker, for appellants. W. E. Denson, for appellee. Before PARDEE and McCORMICK, Circuit Judges, and PARLANGE, District Judge. PARDEE, Oircuit Judge, after stating the facts as above, delivered the opinion of the court. This is a suit brought by the owners of the ship Horace W. Macolllbel' for demurrage under a charter party which provided that, for each and every day's detention by default of the consignees, they should pay owners $nO per day. The demurrage claimed is for the delay between the ship's alTival at the port of Galveston and the securing of a wharf for discharge, 'and the narrow question is whether the consignees are in. default for such delay.' The charter party provides that "lay days for Ioadingand.dischargingshall be as follows, commencing from the time the captain reports himself ready to receive or discharge cargo: Time for loading and to be discharged, rate of not less than two hun-
FLOOD V. CIWWELL.
dred and fifty tons per day, Sundays excepted,"-and also provides that "the cargo or cargoes shall be received and delivered alongside, within reae-h of vessel's taekle." lYe do not find in the ehar'ter party any express provision that the shall select, fumish, or' provide a wharf for the ship to dise!targe, nor any provision guarantying "disIJate!t," "quick dispateh," or that the lay days shall eonunenee on arrival of the ship, from whieh ean be implied a contract to furnish a wharf for diseharge. The provision that "the lay days shall commence from the time the captain reports himself ready to receive or discharge cargo" means no mOl'e than that the lay days shall commence from the time the ship is to discharge cargo, within the meaning of the eharter pady; and the iJI'ovision that "the ship is to be discharged by the consignees at a rate of not less than two hundred and fifty tons per day" means no more than that the eonsignees shall discharge the ship at that rate after the ship is ready to be diseharged. The ordinances regulating the assignment of ships to wharves in the port of Galveston for loading and unloading, and the eustom prevailing in the port of Galn'ston, requiring, when the wharves are all oceupied, that ships shall be assigned in their turn, were, or should have been, known to the owners of the ship, who, it appears, had sent previous car'goes, under charter parties similar to the present one, to the port of Galveston; and they did know, or should have known, that all the wlull'ves in Galveston were public, and could not be eontrolled by consignees. Being eharged with this knowledge, if the owners desired to make eonsignees liable for delays in obtaining a wharf, and relieve themselves from delays of the kind, they could and should have provided for the sallle in their contract. Having failed to make such provision, and the consignees not being bound. under our construction of the eharter party, to immediately fumish the ship a wharf at which she eould discharge without delay, we eanuot find that for the delay in this ease the eonsignees were in any wise in default. If not in default, they were not liable for demunage. IVe have examinHI the Illany cases dted by counsel for appellee as supporting his contention as to the liability of the consignees, and, while in many of thelll dpjaehed expressions ean be found which appear to support the contention, we do not find any of them to be in eonfliet with the construetion we have given to the present eharter party. The other eases we have examined, mainly cited by counsel for appellants, are to the effeet that, where there is no express contract on the part of the eonsignees to furnish a wharf, yet, where the consignees have contracted for dispatch in discharge, or for quick dispatch, or that the number of lay days shall commenee on the arrival of the ship in port, there results an implied contract that the consignees shall be responsible for the oecasioned by failure to promptly seeure a wharf for loading or disdmrging. In these decision:.; we mainly COnelll', but they cannot be applied to any advantage in the instant case. As the proof in this present ease shows that, when the vessel obtained a wharf and was l'eady to disehal'ge, the consignees discharged and recejved the goods as rapidly as the eontraet ealled for, we are of opinion that they fully complied with the char'ter party, were not in default, and cannot be held liable for demurrage. The
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decree of the district court is reversed, and the cause remanded to thedistrict court, with instructions to set aside the decree appealed from and dismiss the libel.
THE THOMAS PUHCELL, JR. (Circuit Court of Appeals, Second Circuit. December 7, 1898.)
TOWAGE-Loss OF Tow-LIABILITY OF TUG FOR NEGMGENCE.
A tug is responsible for the loss of a tow, a barge laden with coal,. which [he anchored in the evening in an exposed place, proceeding to another port, where, by reason of not keeping a watch during the night, her master was not advised of an approaching storm in time to reach and save the barge before it was sunk.
Appeal from the District Court of the United States for the Southern District of New York.
This cause comes here on appeal from a decree of the district court, Southern district of IS"ew York, holding the appellants, as owners of the steamtug, Thomas Purcell, .Jr., responsible for damages sustained by the sinking of libelant's barge F. B. Morris and her cargo of coal, laden on board about noon on the 19th day of March, 1896, iIi Stamford Harbor. The Purcell arrived at Stam_ .,l·d Harbor between 6 and 7 o'clock on the evening of the 18th, and, the tide being too low to admit of taking the Morris up the dugway, she anchored her near the Ii. ;lthouse, .and proceeded with her other three tows to Wilso,-_ s Point, where S:le arrived a little before midnight.
The following is the opinion of the district judge Judge) :
The evidence shows it is not customary to leave boats off Shmford in stormy weather; but to take them in to Wilson's Point, foul' miles further on. In threatening weather the same rule would require the tug to keep a lookout on the weather, and to return to Stamford to take along a boat left there, in time to prevent damage. It is plain from the proofs that when the Purcell arrived at Wilson's Point, about 12, a storm was threatened; and it was her duty to go at once, and bring the libelant's boat from Stamford to Wilson's Point. She could have done so easily in 1% hours. But the master was ill; and the pilot, who was in charge, turned in, kept no watch on the weather; and when he got on deck, at 8 a. m., he found the weather too bad to be able to go to Stamford for the boat he had left there. He cannot take advantage of his own negligence. Had a watch been kept, it would have been plain by daylight-at 5 a. m.that he should 'go at once for the Stamford boat, as he might even then have done, and been back by 6:30 a. m., when it was only half a gale. I must hold the tug, therefore, liable. The Governor, i7 I"ed. 1000; The American Eagle, 54 Fed. 1010; The Battler, 55 Fed. 1006. I do not think 1 should hold the boatman negligent in not beginning earlier to throw coal over, so as to get on the hatches. He had a right to expect the tug to come for him for a time; and later the storm became too fierce for him to get the covers on alone; and I doubt whether the covers, if on, would have saved the boat. Decree for libelant.
Samuel Park, for appellants. 1£ Roy Gove, for appellee. Before WALLACE,
and SHIPMAN, Circuit Judges.
PER CURIAM. Concededly, no attention was paid to the weather by those on the tug from. the time she anchored at Wilson's Point