<PiBWIct "\" .i! :, . ' '
B. D. NettI, l"'or7c. April 28, ,
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LD,lIlMnBUB - ClWiTB. . .BBBTJI-WHBNTOBBPaOVIDBD-AB,BNa- OJ'
'nON",' aQsence of any stipulati9n 81 to the within which a berth shall llrovided within a reasonable tim,e, or .be pr()"ided for a shipaftel' an-i,val, it within lIuCh tinle as usage proVides, WhiCh 'tune, by the ordinary usage of the pori; e>t New yodt., is 24: hoursa;eter notice ,of arrival. ' PUTT HATCHES. ", FAST .1 SlIIP OAK , "
I.
,
cb,",ter; of:a 'VllBselhaving' '011l' ,hatches provides tbat the ship shall . AieQb,arge."1'II fast allIIn!': n cb.llorter lIay.itli nothing about, tb.e numbel' of hatbhes to be ulled, and the wnarves at which four hatches'can be simultaneouilyworked in the port:belng the exception, and being no 'evidence that vessels !>flinch to discharge fro;m 1141 four at once1 the charterer l.a ndt 'bound to provide a berth wheJ:8 all four can be used at once; out ful1l.l18 hil dU"t y, b,Y sendi,D,g, the ShiP. to, such,a,re,aso,nabl,Y fit, berth, as is, c,u,s,tomary for h,er size aDd class, and. by seeing to it, at such that no lUndrances on the dock, so the vessel may discharge. as fast as sbe, can deliver, with the usual appliances therefor. ' qa,
After a ship il berthed, and permit to discharge obtained, the chazot,erK ta for'dilla., caused by the nonattendance of acUstomhiluse inspector. '
CUllTOM;llOU8B INSPECTOR.
.!
IIi' Admiralty,
C'onver8k Kirlin, for libelants.
Libel for demurrage.
BROWN, Judge. The charter of the :I{olmepl'Qvided that she "shoUld discharge at one berth in New York harbor, as or· deted by chaherers; anf SUbsequent removal to beat charterers' expense." Another etipulation was tbat she should "be discharged as fast as she cap deliver in oordihary working hours. " " The lltttet stipulation relates to the rate of she commences; 'It. has nothing to do with the time within which a berth should be provided itfte,r arrivaL' ,,Itt 'the .absence of any charter stipulation on that point, to when'the laydays begin, the berth must be within a reasdn!dble time,'oi'suchtime as usage By the dinary usage of this port, .24 hours ,after notice, of. arrival is for procuring a.berth., Within time a to wbich tbeyessel was directed, was ready for her; bth throUgh the vescoming ::pri3i- to the time' notified and going sel's faulty a,,:"ay at ofly}n$ and wa.lting a she mlght have done, for the time appOInted, she dld'Ilot get Into bet until the of the 11th; ,and the was begun on th,e fol'; lowing day. It being high water from 8 to 9 o'clock she could hate taken her berth as well at half past 10 or' 1111.. M. on the 11th, as at 6 P. K. No demurrage, or towage, is, therefore, allow.ed for the 1 1 t h . '
'or
THE NETHER HOLME.
485
Ounningham" 'the stevedore, was employed by the ship's agents. He testifies explicitly that he never worked more than two gangs, nor from more than two hatches. The ship was, therefore, not prepared at that dock, to deliver from more than two hatches. The provision of the charter that the consignees should take as "fast as the ship can deliver," did not'bind them to take more than the ship was prepared to deliver, under such arrangements with the ship's stevedore for discharging as the ship herself had made; since the ship was bound to put the cargo over the ship's side. The respondents are answerable, however, for the half day's delay through the nonattendance of the customhouse officer during the forenoon of the 12th, after the ship had obtained a permit. Oarsanego v. Wheeler, 16 Fed. Rep. 248. The master says that was the stevedore's fault, which would be the ship's fault. But I find that he is mistaken on .that point. Through the incumbrance on the dock I find, also, that during the remaining half day of the 12th the consignees were not prepared to receive above half what the ship was prepared to deliver through the two hatches and by the two gangs of stevedores that she had provided. The libelants are, therefore, entitled to count three quarters of a day's delay for December 12th, at Eighteenth street. The respondents are also chargeable for. one half of December 13th at street, which. was lost through delay in furnishing the transfer permit. The 14th was Sunday . The 17th was unfit to work through the rain·. The ship finished discharging on Saturday the 20th at 1:30 P. M. The testimony shows that there was no hindrance or lack of diligence in the discharge at Forty-Second street after it was begun, from such hatches as were in fact used, namely, two hatches, prior to the 17th, andthree hatches afterwards; and no complaint was made on that score. this season" ordinary working hours" close<:/. at sunset. The libelants contend, however, that the stipulation of the charter that the ship should discharge" as fast as she can deliver in ordinary working hours," imposed on the consignee the obligation to receive from all four hatches at once; and to send the ship, moreover, to a berth where all four hatches should be worked at once. This construction, I think, ilJ more rigid than the ship is entitled to. The charter is in one of the ship's own forms. It bears the stamp of her own agents. Sheis not entitled to read into it,therefore, by construction. more than its language imports. The charter says nothing about the number of hatches that are to be used, nor the kind of berth to which the charterer is to assign the ship. The wharves at which four hatches can be worked at once are the exception and not the rule. There is no evidence of any usage tl;), discharge any vessels from all her hatches at once. The evidence, sorar as it shows apything on the subject, and from the libelants' own witnesses, is that ouly two hatches were customarily used at once, though this related probably to smaller vessels. Reported cases show that this stipulation in charters has been in use for at least 20 years. Dahl v. Nelson, 6 App. Cas. 38, 42. .In no case does it appear that suchl!. construction of. this clause has ever b.een given to it. In the recel]lt case of The Glerifinlas, 42 :Fed. Rep. 232, affirmed 1 U·. S. App.
436
FEDERAL REPORTER,
vol.. 50.
22, 48 Fed. Rep. 758, where the charter contained a similar' provision, the ship was held entitled to discharge from two hatches, because the proo(s:showed that it was customary for vessels of her size, having four hatches, to discharge from at least two of them at once. It was also held in that case that under such a stipulation, the custom applicable to small vessels was not applicable to a much larger one; and that she was entitled to a berth reasonably adapted to her size, and to discharge from as many, hatches as was customary with other'vessels of her size and class,'ifprocurable. Such, I have no doubt, is the reasonable construction of this clause, and what was intended by these parties. Had it been designed that she would be sent to a berth where four hatches should be used at once, and that all four must be used flimultaneously, it should and would have been so stated in the charter, as was done in the case of Gmnt \I. Coverdale, 9 App. Cns. 471. I think it certain that no shipping men reading this charter, would understand froin it any such agreement or obligation. Aside from the language of the charter, there is no evidence to show that vessels of this size or class are accustomed to discharge from four haWhes at once. The libelants on this subject gave but a single word of testirilony,'to the effect that a, wharf might have been procured where four hatches could ,be used. Where such a wharfwas to be found was not stated, nor whether it was in the part of the port where the consignee under the discretion given him had a right to direct the ship for the ecorionlical transaction of his business. The evidence is insufficient, therefore,to show any breach or neglect of duty by the consignee in the selection of the wharf. 'The object of the charter in giving such a discretion to the consignee is that the cargo may be received at such place as may comport with necessary economy in the receipt. sale, or disposal of'stlch cargoes. It is sufficient if the charterer sends the ship to a reasonablyfit berth, considering her size and class, such as the wharf at street was. And the intention of the clause in question is, in my judgment, fully met, if at such a berth the charterer sees that there are no hindrances upon the dock in the receipt and carrying away of the cargo, so that the vessel may discharge liS fast as she can deliver with the usual appliances therefor. If the respondents are held chargeable with the duty of discharging at three'hatches, from the fact that upon the ship's demand for more rapid discharge they rigged up IDeans for discharging from an additional hatch on the afternoon of the 16th, still I find that upon computation the consignees did not occupy, on the whole, a longer time than a discharge 'from three hatchf'sall the time would allow them. The charterers \terenot required to unload at night, but only "in ordinary workinK hours." But the charter provided that the vessel should" work at night when required by charterers, any extra expense thereby incurred to be paid by charterers." After the third hatch was prepared the respondents:worked the ship for three !nights, which presumably equals a saving of three days' time. Charging against the respondents the loss of three fourths of a day on the 12th, one half a day on the 13th, and the
THE PILOT.
437
loss of one day more for the use of only two hatches, instead of three, from the 13th up to the afternoon of the 16th, there would be but 21 days lost time chargeable against them, which is less than the amount saved by night work. As there is no proof that the ship was not allowed to discharge as fast as she could from the hatches used, the charterers did not exceed, therefore, the time at their disposal under the charter. The extra expense caused by working the ship at night amounted to $139.70. Such extra expense, by the ter111S of the charter, was to be charged to the charterer. The "latter, however, contends that it was chargeaWe tohim only in case night work was "required by himj" and that such night work was not done upon the requirement of the charterer, but because the ship demanded it, and was assented to on condition that the ship should pay the extra expense. Language to that eJfect appears in a letter of the respondents in answer to the shi.p's claim for a quicker discharge, and in reply thereto. The discharge at night, however, was as much for the benefit of the charterer as for the ship. In the demurrage account the charterers are given the ben'efit of the night work, which has saved them a.bout$434, which they would otherwise have been liable to pay the ship for demurrage. This night work was" required" by them in order to avoid the amount of demurrage. Under such circumstances,it is the plain intent of the charter that the charterer should pay the extra expense of night work. It is like a substituted expense. Jif'heelwright v. Walsh, 44 Fed. Rep. 380. The libelants are, therefore, entitled to a decree for that amount, together with one towage to Eighteenth street, and one to Forty-Second street, amounting to $35;. in all $174.70, with interest. The libelants not being successfulon the principal item of the claim, namely, $1,358, for demurrage, .no costs are allowed.
THE Pn.oT. UNITED STATES
v.
THE STEAM TUG PILOT. Apllil 19,1892.)
(Oircuit Oourt of AppeaZs, Ninth Oircuit. ,FOREIGN WATERS-TOWAGE BY FOBEIGN TUGBOA'J'S.
'fhe treaty between the United States and Great Britain of June 15, 1846, fixes the boundar)' between the two countries in the straits of San Juan de Fuca by a line ,following the middle of the strait, but also secures to each nation a right of free navigation over all the waters of the strait. HeZd, that all the waters north of the boundary line are "foreign waters," within the meaning of Rev. St, 4370, which excepts fromthe penalty therein imposed against foreign tugboats towing vessels of the United States. cases where the towing is, in whole or ill part, within or upon foreign waters. 48 Fed. Rep. 319, reversed.
,{SyUabus by the Court.}
Appeal fl'om the District Court of the United States for the District of WashingtoLl, Northern Division.