2 F. 607 -

FEDERAL REPORTER.

.607

MOOD"Y v.

FIVE HUNDRED

THOUSAND LATHS, part of the cargo of the schooner Olive.

(District (;tlurt, E. D. New York. May 6,1880.)
CHARTER-PARTY-DEMURRAGE-ALL POflBlBLE DISPATCH.-A

vessel was loaded with laths, in New Brunswick, for New York, under a charter specifying that she was to be loaded "with all possible dispatch." She was compelled to await her turn for cargo, and was thereby detained five days, and was also detained by tide, and also at the place of dischll.rge. Suit being brought for the demurrage, held, that demurrage could be allowcd only for the detention in loading, upon the evidence. A provision of charter- party for loading" with all possible dispatch.. coD,strued. . . The case of TM Mary E. Taher approved and followed.

1. J. Heath, for libellant. Wm. W. Goodrich, contra. BENEDICT, D. J. This action is brought upon a charter-party of the schooner Olive, to recover demurrage for the detention of the schooner while awaiting her turn at the place of loading; also, for detention after she loaded, caused by low tide, and. also for detention at the place of discharge. . The charter was made in St. John. It provides that the vessel shall proceed to Point Wolf, N. B., and there load from the charterers a full cargo of laths, and, being so loaded, shall proceed therewith to New York and deliver the same. It also provides for a lien upon the cargo for freight and demurrage, and concludes as follows: "Cargo to be delivered within reachof the vessel's tackles, with all possible dispatch, at Point Wolf, and to be taken delivery of in like manner." This special provision, which is in writing, must, of course, control the general provisions of the printed blank. The con· trary has not been contended. By this provision the charterers assumed an obligation to designate an unencumbered berth for the loading and discharge of the cargo, (Davis v. Wallace, 3 Clifford, 133; Thatcher v. Boston Gas-Light Co. 2 Lowell, 362,) and to furnish cargo at the place of loading as fast as it might be possible for the vessel to receive it.
   

MOODY V. FIVE HUNDRED THOUSAND LATHE!.

Sleeper v. Ping, 8 Rep. 257. Any other construction of the phra.se "all possible dispatch" would attach a different meanthat given to it by the adjudged ing to the word dispatch cases already referred to, and render inoperative a provision inserted in writing, and manifestly intended to be controlling. The obligation created by this special agreement in regard to loading is not affected by any usage at Point Wolf in regard te awaiting a turn. Keen v. Audenried, 5 Ben. 535; Sleeper v. Ping, 8 Rep. 357. Accordingly, it must be held that the designation by the charterers of a wharf. then occupied by a vessel there being loaded by them, whereby the Olive W8JS detained some days before she could come to the berth so designated, was a violation Of the agreement, and entitles the vessel to be compensated therefor. In regard to the detention at Point Wolf after the cargo was on board, and which arose from the circumstance that the vessel was tide-bound, no liability can attach therefor to the cargo, the evidence showing that diligence on the part of the vessel after she began to load, in taking on board the cargo and in moving from' the wharf, would have prevented her being nipped. In regard to the detention in New York, it must be held in this case, as in a former one, (The Mary E. Taber, 1 Ben. 105,) apparently approved in Thatcher v. The Boston Gas-Light Co. (2 Lowell, 363,) that it was no violation of the agreement on the part of the consignee to name more than one place of discharge for such a cargo as this. The contract, while it calls for an unencumbered berth, does not limit the discharge to a single such berth, where the custom is to deliver cargo of this description at several places. Therefore, while I think the custom was pushed to its extreme limit in the designation of three such places of discharge as Jersey City, Wallabout creek and Gowann's canal, I cannot say, upon the evidence, that the custom was exceeded. The master having accepted the designation made by the consignee, and having proceeded to those places in compliance with that designation, without objection made at the time, cannot now claim demurrage for the time

FIRST NAT. BANK OF LACON tl. BENSLEY.

609

occupied in reaching those places. The objection made when the vessel had arrived in Gowann's canal, after having been to Jersey City, and the lihellant was too late to permit the consignee to change the place of. discharge, affords no support to the claim now made. Davis v. Wallace, 3 Clifford, 133. In regard to the alleged delay in receiving the cargo as fast as it could have been landed at those places of discharge, the evidence fails to satisfy me that any detention arose from such a cause. The claim of the libellant must, therefore, be HIll.ited to the detention at Point Wolf; caused by the failure to designate an unencumbered berth. The evidence shows this to have been five days, and that $20 per day is fair demurrage. Decree for libellant for $100, with interest at 6 per cent., and costs.

FIRST NATIONAL BANK

OF

LACON V. BENSLEY

and others.

(Circuit Court N. D. illinois. --,1880.)
DRAFT-AGREEMENT TO ACCEPT-CONDITIONS - MUST BE COMPLIED WITH.-;-Where an agreement was to pay the draft of J. B. & Brp" with bills of lading attached, held, that to make the promissor liable thereon there must be a literal compliance with the conditions, and the presentation of a draft drawn by A. D. B. & Bro., or one unaccompanied by bills of lading, was not sufficient compliance, although the names J. B. & Bro. and A. D. B. & Bro., were used by the same firm interchangeably, and the property represented by the bills of lading to be attached came into the possession of the promissor. CONDITIONAL CONTRACT-ACTION TO ENFORCE--BURDEN OF PROOF.In an action to enforce a special and conditional contract, the burden is on the plaintiff of showing an actual compliance with the conditio no imposed. DRAFT - AGREEMENT TO ACCEPT - WHEN MUST BE PRESENTED.Where no time is specified within which a draft agreed to be accepted shall be presented, it must be presented within a reasonable time. SAME--UNREASONABLE DELAY IN PHESENTATION.--Delay of more than a year in the proper presentation of a draft agreed to be accepted, ilS unreasonable.

Mr. Bacon, for plaintiff. Needham d Miller, for defendants.

v.2,no.7-39