504 Making, then, the most extreme allowance for rain, of one day, and it is clear that the cargo should have been wholly discharged, if "customary dispatch" had been used, on February 3d. AU delays after that date were the result afthe negligence of the respondent, and whether it "rained or shined," was Sunday or week·day, he should pay'demurrage for every day thereafter until the ship was discharged. Libellant should have judgment for eight days demurrage, at 30 pounds sterling per day, to contract. Letra j'u'dgment be entere<Hntfavor of libellantS' for the equivalent of: 24:0 pounds ster$97 for watchmen and ,tarling in'Ull;ited 'States paulins, with I'> per' cent. from February 15, 1881, and costs of Buit. >
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'{Oircuit Oourt, E.lJ.lLouigig,na. May 27,1882.). j
2.
l,,"t1STOM.
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To render a custom oruaage of tt!ide valid and binding, it must be known, certain, uniform, reasonable, and to law. An alleged custom of ,the port of New Orleans, by which of a ,f1'\lit vessel is commenced to be discharged for one day upon the wharf, and 'then the further discharging is delayed for one 'dsy to sell that part discharA'ed, aud then, if necessary, is further delayed another day to remove the sawe from the wharf, before proceeding to further discharge the cargo, condemned as unreasonable. 3... (''uSTO}URY DISPATCH IN .. Customary dispatch in discharging" means discharging with speed, haste, expedition, due diligence, accOl'ding'to the lawfUl, reasonable, well-known customs of the port of 'discharge. !tis as " usual custom," but not the same as" quiclt dispatch," wllich latter has been held to exclude certain usages and customs. 4. EvIDENCE AS'TO WEATHER-UNITED STATES, SIGNAL OFFiCER'S RECORD,
The'record of the weather, kept by an officer of the United States signal service, is' better evidence thereof than the testimony of witnesses who, having kept no record, afterwards swear to the state of the weather from memory. "
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Admiralty AppeaI. On petition for rehearing. For facts, see,igamecase, 10 FED'. REP. 302, and ante, 503. Joseph P. Bornor/and Francis W. Baker, for libellants. Cha.rle. B. Singleton H. Browne, for defendant. ·Reported by Joseph P. Hornor, Esq., of the New
LINDSAYV. OUSIMANO.
505.
PARDEE, C. J. The earnestness with which proctors for defendant have pressed for a rehearing in. this case has induced me to go over the matter again and to amplify my reasons for judgment. The whole case rests upon the amount of time ,allowable under the contract for discharging the cargo of the Glenbervie. The following are the specifications of the contraetin relation t.o discharging:
.. To discharge at a wharf as ordered by charterers' near thereto as she may safely get, and there deliver the same agreeably to bills .. To discharge with customary dispatch, and shall pay damage at the rate' of 30 pounds sterling per day," etc. See charter-party, Record, pp. 11, 12, 13. .. Simpltaneously with the ship's being ready to unload the above-mentioned goods or any part the consignee of the said goods is hereby bound to be ready to receive the same from the ship's side, 'either on the :wharf or quay at which the ship may lie for discharge, or into lighters provided with a sufetc. See ficient number of, men to'I:ec"eive and stow fie, bill of ladipg, Record, p. 281. ,.
These proVisions are inconsistent with any delay after the shipWBS ready, except such delays as are involvedcin,pll.stomary dispatch. The defendant selected a wha.rf already,occupied·hy the 'all@gell Caraidoc, and the GI:enbervie landed outside. The that it was very 'difficult; if not altogether impracticable, to the cargo of the Glenbervie over and across the decks of .said vessel. Caraidoc; and when the Caraidoo got out of the way, and the Gbmbervie came to the wharf, "the wharf was then and there so mueh obstructed by goods and merchandise landed and ,\le.j,Qg: landed from other vessel or vessels, that it was not possible to unload the cargo of the steam-Ship Glenbervie aBis usual, customary, and proper at this port." These excuses are relied upon to jUBtifya.de1ayfrom January 27th to Januaiy31st. It seems perfectly clear to me that defendant had no business to select a wharf already fully occupied, (see 2 Low. 361;) and uuder his contract he was bound to be ready to receive the cargo as soon as the ship was landed and ready to deliver. .He might .havedelayed the Glenbervie for weeks with the same excuses. The case of 1'15 Tons of CMt, 9 Ben. 400, is not applicable here, because in that case the contract specified the wharf, and there was no stipulation of the dispatch or delays to be used in discharging. The boat having agreed to unload at a particular wharf named, and being there detained only to await her regular turn, and there being no 8tipulation of dispatch in discharging, the libellants were not allowed to recover. Nor are the cases cited, that incases where the
'FEDERAL
words "custolnary dispaich"were used,in a charty-partys. custom of allowing three days to procure a berth, in the port of New York pe:,,; came a part of the'contract,applicable,here. See Fulton v. Blake, 5 Biss. 371. In this 'case there is no custom allowing a ship thre13days to procure a berth indhe port of New Orleans alleged or proved. Besides, the Glenbervie found 'her landing immediately, and the con· signee had agreed to be ready to receive simultaneously with the ship's being ready to deliver cargo;au;d he was to receive it onthe shiV's s i d e . ; exchse for" further delays the...... defendant, thongh not alleging in ;':- . his. answer,' had offered evidence t'o'show a custom in the fruit trade in the New Orlel;l.ns to 'discharge cargo f91,oIle day on the wharf, and .then delay one day tQisell the same"aud jhen, if sary, another day to Such' a U1:lage has been ,shown to prev!til in thi'S 'port 'for three' but' it is alleged in argument that it is now superseded, as interested parties have provided a. SUit· 'covered:\tharf.' It never was fBi reasonable, custom, even if it ;authority (jf a custom at all, which, is "CustoIIlS res'I!!ltfroIIl a long series of actions QonstanUY repeated, which' Buch'repetition, and by unintequpted acquiescence" La. Civ. Code, acquired the ,force of a taCit and ,cowmon art. 8. "Custom is unwritten law, established, by common consent and uniform practice, from time immemorial." 2 GreElnl. § But waiving the 'question as to whether this practice of delay had attained,:Bofar as usage is concerned, the dignity of a custom, it ,is sufficient to condemn it as unreasonable. That a ship should delayed in dischargingnntil. the' consignee can find purchasers for his goods; is'tQ conVel"t the ship into a temporarywa.rehouse, accord. ing to the necessities of the consignee. "To render a custom or usage of trade valid and binding, it must be known', certain, uni. form, reasonable, and not contrary to law." '1' Wait, Act. &, De£. 129, and cases there cited. The·case·of Smith'v.Sixty ThoUi8and Feet of Pine Lumber,2 FED. REP. 396, relied upon by proctors for defendant, goes, only to the extent of restricting the discharge of cargo to such amount as the consignee can, with the ,UBe of ordinary facilities, aC90rding to the customs of, the port, recei-ve and take away. .The contract in that case was for "customary dispatch in discharging," and the jutlge defined a custom to be "a practice which is universal, or almost uni· 'versal, in the trade in question." In this case "customl\>ry dispatch in dischal'ging" is qualified and affected by the stipulations in the ; "
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LINDSAYV. COSlMA:NO.
bill of lading. And here I may notice that not one of the many cases referred to by proctors for respondents is identical, in contract and circumstances, this case, nor. is there any conflict in principle with any of those cases in the viewB the district judge and I take of this case. . Our decisions can he maintained on principle, by ity, if we concede this entire case to turn on the "customary dispatch" ()f the port of New Orleans. The lawful, res,sonable, and well-known cqstoms of the port of New Orleans affecting the contract in this case for customary dispatch, etc., are ,the, customs not to discharge on Sundays, nor in the rain; and not any unreasonable practices allowing consignees delays to sell goods. "Customary dispatch in discharging" I ullderstand to mean dis{lharging with speed, haste, expedition, due diligence, according to the lawful, reasonable, well-known customs of the port of diseharge. It is the same as usual dispatch, not the same as quick dispatch, which latter has been held to exclude certain usages and customs. Davis v. WaUace, 3 Cliff. 123; Thacher v. Boston Gas-light, 2 Low. 862; Keen v. Audendried, 5 Ben. 535. With regard to the time allowed in this case for 'rain, it is urged that I ought not to have considered the testimony oftha United States signal officer as the best evidence to be had. I only put the evidence of the signal officer as the better evidence when opposed to those witnesses who, having kept no record, some time afterward!> swore to the state of the weather from memory, and I think there cs,n be no doubt of the correctness of this position. Proctors for the defendant, or else I, mistake the effect of the signal officer's testimony, for it was on his record that I allowed one day for rain. The testimony for respondent does not reliably show any rain before Thursday, by which time the cargo should have been fully discharged. Courtrault, discharging clerk, swearing from his book, mentions no rain before Thursday. .The ship's mate, testifying with the ship's log before him, says it rained on Tuesday. This is in corroboration of the signal officer. And not another single witness that I discover swears by recollection to rain on any particular day before Thursday, and the evidence generally of all such witnesses in this case is abuse of the weather. The application for a rehearing is denied.
608 FROM
CARGO
WREOK
OF BARK EDWAltDS·
. (District'Oourt,S. D. Florida. April, 1882.) 1. SALVAGE-DERELICT-COMPENSATION-ExTRAORDINARY l'JEIlIT.
Salvage on derelict property is not limited to a moiety, as high as 70 per ceJit. being given in 8 case of extraordinary merit, where the labor is cOllsiderablEl aud the valmrof the saved property small. 2. SAME";,,,SWPWRECKED PROPERTY. ,
Such damage as results to propertyfrom being shipwrecked and submerged in sa1t water,with breaking and loss of boxes and cases, held not tosd change its condition as to exclude it from free enti-y, if'shown to lie produots ()rmanufBctures of the United States, under provisions,{)f section 2505 of the Revised Statutes. 3. SAME-IDENTITY OF PROPERTY.
The identity of such articles must be establislied in conformity with pre. scribed regulations of the treasury department, 'and not by ordinary testimony.
In Admiralty. Salvage. L. TV. Bethel, for libellants. G. Bowne Patterson, Dist. Atty., intervening for duties. No claimant. LOCKE, D. J. This property was .found in the bot.tom of a bark which had been wrecked on Ala-cran reef, abandoned and gOUE! to divers, in froll). two to two pieces. It was .saved by· diving by and a half fathoms of wate:r, and boated some seven miles, to where the salving vessel had been obliged to anchor; has been brought to llled for l3alvage by t.he salvors, who this portrover 500 miles and.lib are licensed wreokers of this district.: ", c. It appears to have been derelict in the fullest sense of,. the term, and its total loss cel'ta,in, except undertakipg a,s the libellants engaged ilk: The labor was severe and to ,a ce.rtain extent dangerous, both to the persons and property engaged, the services being repdel'ed inl111certaiu wettther, on an open, and dangerous reef. 'The actual diving .and, labor occupied ab<;>ul a. week of flxtra-long daYs, while the value of the property sayed; compared with the labor of saving it,is small, being,. after payment of expenses and duties, but about, $100. The ancient rule ofgiving a moiety for salvage in cases of derelict, and limiting it to that proportion of the value saved, has gl'adua,lly given way to one which has boon generally accepted as more equitable and just, namely, a fair compensation for actual services rendered and labor performed, although it may exceed a moiety, aQ<!, ,.when the amount justifies it, a liberal bounty in addition. The records of this district show numerous instances where it has 1