« ZurückWeiter »
VI. Foot Passengers.—The public, as foot passengers, have the right to use the carriage way as well as the sidewalk.1 Children are not restricted in passing and repassing upon the streets and roads more than adults. Walking in the carriageway is not of itself prima facie evidence of want of ordinary care, nor from that fact alone will the law infer negligence.3
VII. Pleading.-In a complaint against a traveller for not driving his carriage to the right of the travelled part of a road, it is not necessary to set forth a particular description of the road.
VIII. Canals.—When boats meet on the canals, it is the duty of the master of each to turn out to the right so as to be wholly on the right side of the centre of the canal.5
LAWYER — (See also ATTORNEY AND CLIENT, vol. I, p. 942.)
Definition.—A popular term for a person whose business it is to know and practice law.6
It is any person who for fee or reward prosecutes or defends causes in the courts of record or other judicial tribunals of the the team were engaged in putting a the plaintiff himself, or by mere accibarrel into the wagon the defendant's dent, the defendant was not liable, and runaway horse ran into the plaintiffs' the jury found for the defendant. horse. Held, in an action to recover new trial was granted for the omission for the injury to the plaintiffs' horse of the judge to instruct the jury to enthat the judge rightly refused to rule, quire whether, under the circumstances as matter of law, that the plaintiffs were of the case, the defendant was not bound not in the exercise of due care. Green- to know that his boat could not pass wood v. Callahan, nu Mass. 298. without hazard, and if he was, whether
The plaintiff's horse and wagon were he ought not to have proceeded with standing upon the public highway. De- greater caution, Dygest v. Bradley, S fendant, while driving along the high- Wend. (N. Y.) 470. way, struck the plaintiff's wagon. Held, In passing on the Erie and Chamthat the plaintiff has the burden of plain canals freight boats are bound to proof to show that the collision took afford every facility for the passage of place without any negligence on his packet boats as well through the locks part. Parks v. O'Brien, 23 Conn. 339. as elsewhere on the canal. And where
1. Coombs v. Purrington, 42 Me. a freight boat passing west on the Erie 332.
canal was waiting for the emptying of a 2. Stinson 2. Gardiner, 42 Me. 248. lock when a packet boat overtook her,
3. Coombs v. Purrington, 42 Me. held that the packet boat should pass 332.
first. On request, the master of the 4. Com. v. Allen, u Met. (Mass.) freight boat refusing to consent to this, 403.
the master of the packet may use all 6. i New York Rev. Stat. 248, Ø 154; necessary means to obtain the prefer. Rathbun v. Payne, 19 Wend. (N. Y.) ence due to him short of a breach of the 399.
peace; as by pulling back the freight A boat navigating the Erie canal boat and forcing his own forward, for struck another boat lying in the canal which no action of trespass will lie, no waiting her turn to pass the locks. The necessary damage to the freight boat judge presiding at the trial charged the being done. If the freight boat be dejury that the defendant was liable if he tained or injured through the obstinate had been guilty of negligence, or in- resistance of the master to the exercise tended to inflict the injury; but that if of the right of preference of the packet, there was no negligence or design of in- this is the fault of the former, for which jury, and if in attempting to pass, the he cannot recover damages against the defendant managed his boat in a pru- master of the latter. Farnsworth i'a dent and skilful manner and the injury Groot, 6 Cow. (N. Y.) 698. was sustained by means of the acts of 6. Anderson's L. Dict. 605.
United States, or any of the States, or whose business it is to give legal advice to any cause or matter whatsoever.1
LAY. See note 2.
LAY CORPORATION—(See also CHARITIES, vol. 3, p. 122; CORPORATIONS (Private), vol. 4, p. 184).
A lay corporation is "a corporation composed of lay persons or for lay purposes."'3 They are divided into two classes, eleemosynary and civil, 4 and civil corporations are divided into public and private.
LAY DAYS —(See also DEMURRAGE).
I. Definition, 965.
(a) In General, 965.
(6) When.Specified in Charter, 968.
(c) Discharge in Two Places, 973III. Computation, 973.
I. DEFINITION.—Lay days, strictly speaking, are the number of days specified in a charter party that the charterer is permitted to detain the boat for the purpose of delivering the cargo to and receiving it from the boat without incurring any liability to pay the boat owners for such detention.6
II. COMMENCEMENT—(a) In General.—The lay days all belong to
1. Act of July 13th, 1866. See 9 U. S. its laying out. In re Application of Stat. at Large, 121.
Dept. of Public Parks, 86 N. Y. 437, 2. A Lay, in Maritime Law.-In the affirming s. C., 24 Hun (N. Y.) 378. New England ship owning States, The words “laying out” and “open“when the owners of vessels agree with ing” are constantly used as equivalent a mariner that he shall sail the vessel expressions in the road laws of Pennon 'a lay,' both parties understand that sylvania. In re Twenty-eighth St., 102 the mariner is to take command of her Pa. St. 146. as master, to victual and man her and An order widening a highway is a pay half the port charges; the owner to laying out of a highway. Fuller v. keep the vessel in repair, and the freight Mayor, 123 Mass. 289. and earnings to be equally divided be- Laying Out a Park.—The phrase "laytween them. Upon a contract of this ing out” has the same meaning in the kind, the vessel, during its continuance, Massachusetts statutes relating to parks is under the exclusive control of the as it has in those relating to highways. master as respects her voyages and em- Foster v. Board of Park Commissioners, ployment. He alone has the right to 133 Mass. 321. determine what voyages he will under- Laying Out a Sewer.—The act of laytake—what cargo he will carry-upon ing out a sewer is complete when the what terms—and to what ports he will court of common council has desigsail in search of freight. His share of nated its locality, and its dimensions the earnings of the vessel are his wages, and mode of construction. Cone v. and he receives no other compensation City of Hartford, 28 Conn. 363. for his services as master." TANEY, 3. Bouvier's Law Dict. vol. 2, p. C. J., 19 How. (U, S.) 33.
Laying Out a Highway.-When is the 4. 2 Kent Com. 274; 1 Blackstone act of laying out complete? See Hitch- Com. 470. cock v. Alderman of Springfield, 121 5. 2 Kent Com. 274; 1 Black. Com. Mass. 382; Wolcott v. Pond, 19 Conn. 470, 471; Dartmouth College v. Wood597
ward, 4 Wheat (U. S.) 518-670. The laying out of a highway includes 6. 3 Kent Com. 202; 2 Step. Com. a survey of it. Small v. Eason, u Ired. 141; Brooks v. Minturn, i Cal. 481; 10 L. (N. Car.) 94.
M. & W. 331; 3 Esp. 121; Rowe v. The opening of a street is a part of Smith, 10 Bosw. (N. Y.) 268.
the charterer; he is not obliged to deliver the cargo to or receive it from the boat upon the demand or request of the captain, but may suit his own convenience for doing this, provided he does not exceed the specified number of days allowed him."
But if he detains the vessel longer he will have to pay demurrage for such excess of time at whatever rate per day the charter party stipulates.
Such days allowed for a ship to load or discharge, in the absence of any stipulation in the charter party or otherwise, as to their commencement, or as to the time to be allowed for loading or unloading, commence to run and are to be reckoned from the
1. Poland v. Maryland Coal Co., 14 20th, and on Monday, the 22nd, she beBlatchf. 519; 8 Ben. 347.
gan unloading her cargo, and Where the consignee was to have cleared on the 27th. It seems that actwenty running days after the vessel ar- cording to the factor's certificate she rived at the port of her destination for was a metered vessel, and that if she unloading, and if detained longer he had not been on the metered list she was to pay the owners $50 per day de- could have proceeded to the pool at murrage for every additional day he once and would not have been obliged detained her. The consignee detained to be entered for a meter and would not the vessel longer than the stipulated have sustained the delay by waiting until lay days, and while she was held on the 20th before it was her turn to go to demurrage she was lost with the cargo. the pool. It also appeared that occaHeld, that as the consignee did not un- sionally it was the practice for the factor load and discharge the vessel within not to enter such vessels in the meter's the specified time, and there was no im- list, and that it was desirable that the possibility to prevent him from so cargo should be sold subject to metage doing, and that the loss occurred with- by a sworn meter. Held, that the ves. out the default of the master or mari- sel did not arrive at her place of disners, the owners were allowed to re- charge until the 20th, and that the lay cover freight as well as the demurrage. days did not begin to run until then, Brown v. Ralston, 9 Leigh (Va.) 532; and that the owner could not recover 8. C., 4 Rand. 504.
demurrage. Kell v. Anderson, 10 M. Under an
agreement between & W. 498; 12 L. J. Exch, 101. charterer and the owners the charterer It was stipulated in a charter party was to have twenty-five days for un- that a vessel was to go to Plymouth. loading. The boat arrived and there not higher than S or N, or as near being opportunity to unload the captain thereunto as she can safely get, and de. offered to discharge the cargo. The con- liver the cargo, having certain lay and signee declined to accept the offer, and, demurrage days. When she arrived in the meantime, but within the twen- the consignee ordered her to proceed to ty-five days, the boat was lost by storm M, it being an ordinary landing place, in the harbor. Held, that there was no and not so high as S or N. The tides freight earned, as the consignee had the were neap, and she went as near M as right to receive the goods any time he possible in that state of the tide. She chose within the twenty-five days. La- was obliged to lay on the sand for sev. combie v. Waler, 4 Binn. (Pa.) 299. eral days before the tide became high
2. Brown v. Ralston, 9 Leigh (Va.) enough to proceed to M. Held, that 532; 4 Rand. 504; Rowe v. Smith, 10 the naming of any landing-place within Bosw. (N. Y.) 268.
the port of Plymouth was optional win According to a charter party the the consignee, provided he kept within charterers or their assigns were to have the limits stated in the charter part five working days in which to receive and that the lay days did not begin unthe cargo. She arrived in port on the til the ship reached the place thus 9th of March, the cargo was sold on designated, and the delay in reaching it. the ioth, and the vessel entered by the was caused only by the ordinary course charterers for a meter. She was not of navigation in a 'tidal harbor. Parker ordered by the harbor master to pro- v'. Winlow or Winlo, 7 El. & Bl. 942; ceed to the pool for unloading until the 4 Jur., N. S. 63; 84 L. J., Q. B. 19.
time she arrives at the usual place of discharge in the port and not when she first arrives at the port. If the loading or unloading place is within a dock they begin to run from the time she enters the dock, and not from the time she reaches some particular place in the dock to receive or discharge her cargo.2
In this case the only ground for holding the charterer or consignee liable for demurrage is some fault on his part by which the loading or receiving of the cargo is delayed longer than is necessary.3 Each party must use reasonable dispatch in performing his part of the contract; for this reasonable time will always
1. Breeton v. Chapman, 7 Bing: 559; According to a charter party a vessel Rowe v. Smith, 10 Bosw. (N. Y.) 268; was to proceed direct to any Liverpool Kell v. Anderson, 10 M. & W. 498; 12 L. or Berkenhead dock, and there in the J., Exch. 101; Cross v. Beard, 26 N. Y. usual and customary manner take on a 85; Weaver . Walton, i Flip C. Ct. 441; full and complete cargo of coal, and that Manson 7'. New York N. H. & H. R. she should be loaded at the rate of one Co., 24 Blatchf. C. Ct. 448; McIntosh hundred tons per working day, but that 7. Sinclair, ni Ir. C. L. 456; Alward v. loading should not commence until after Smith, 2 Low. 192; Parker v. Winlow, July ist. She was ordered to the Wel8 El. & B. 912; Hodgdon v. R. R. Co., lington dock (a Liverpool dock) by the 46 Conn. 277
charterers, and was ready to enter it on This is the case when the cargo is July 3rd, but was not permitted to enter brought by a general ship. But it may the dock until July uth, because the be otherwise when the charterer or coal agent whom the charterers had consignee assumes all the obligations of employed to furnish the coal had the charter party. Gronstadt v. Whitt- three vessels at that time inside the hoff, 15 Fed. Rep. 265.
dock and two others booked to If a vessel wishes to protect herself enter. The dock regulations would not against delays not arising from the allow a coal supplier to have more than fault of the shipper or his agents, she three ships inside the dock at the same must do so by stipulating for a stated time, it being the usual custom to emperiod of discharge after arrival or for ploy coal agents to furnish cargoes, and dispatch. Fish v. 150 Tons of Brown it appeared that the charterers had not Stone, 20 Fed. Rep. 201.
made an unreasonable selection of the The charterer is not liable for deten- agent. Although she entered the dock tion caused by the vessel having to wait July uth, her turn to proceed to the her turn to unload when the goods are spout to receive the coal did not arrive such that they have to be discharged until July 23rd and loading began the into bonded warehouses. Rodgers v. day after. It also appeared that it was Torresters, 2 Camp. 483; Brumester v. the usual custom to load coal from the Hodson, 2 Camp. 488.
spout, and also that it was not unusual 2. Rowe v. Smith, 10 Bosw. (N. Y.) to load from lighters. Held, that the 268; McIntosh v. Sinclair, u Ir. L. S. lay days began to run when she entered 456 Exch.; Cross v. Beard, 26 N. Y.89; the dock, and that they were not postBrown v'. Johnson, 10 M. & W. 331; poned until her turn arrived to go to Kell v. Anderson, Id. 498; Nelson v. the spout. Tapscott v. Balfour, 42 L. Dahl, 12 Ch. Div. 568; Gibbens v. Buis- J., C. P. 16; 8 L. R., C. P. 46; 21 W.R. son, i Bing. N. C. 283; Balley v. De 245; 27 L. T., N. S. 710. Arrogave, 7 A. & E. 919.
3. Fish v. 150 Tons Brown Stone, 20 When the delivery by the terms of Fed. Rep. 201; Hayden x'. Whitmore, the charter party was to be made 74 Me. 230; Rodgers v. Torresters, 2 alongside the vessel within reach of her Camp. 483; Burmester v. Hodgson, 2 tackle and the consignee directed the Camp. 488; Henley v. The Brooklyn Ice captain to take the vessel to a certain Co., 14 Blackf. C. Ct. 522; Schroll 7'. dock, the working lay days commenced Albany Iron and Steel Co., 101 N. Y. from the time she was in readiness 602; Finney v. Grand Trunk Ry. Co., alongside the dock to discharge her 14 Fed. Rep. 171; The L. Z. Adams, 26 cargo. Rowe v. Smith, 1o Bosw. (N. Fed. Rep. 655; The Mary Riley v. 3000 Y.) 268.
Tons Railroad Ties (D. C., E. D., Pa.),
be implied, and this is always a question for the jury to determine from all the circumstances legitimately bearing upon the case.
(6) When Specified in Charter.-If the parties stipulate as to when the lay days are to commence, or limit the time in which the loading or unloading or one of these operations is to be performed, they will be governed by such stipulation, and such limitation is construed in maritime law as a stipulation for the benefit of the ship, designed to cast upon the charterer or consignee all risk of detention beyond the stipulated period ;2 and if the stipulation is for the discharging of cargo, the lay days commence from the time she arrives at the port and notifies the consignee that she is ready to discharge, he is bound to find a suitable. place of discharge, and is liable if she is detained longer than the
38 Fed. Rep. 254; Sweeting v. Darthez, delav. Ford v. Coles worth, 39 L. Q. 14 C. B. 538; Eng. L. & Eq. 326; Harris B. 188; 18 W. R. 1169; 23 L. T., N. S. v. Dresman, Exch. 1854, 25 Eng. L. & Eq. 165; 5 L. R., Q. B. 544 Exch. Cham. 526; Clendaniel v. Tuckerman, 17 Barb. Where a bill of lading fixed no period (N. Y.) 184. If the vessel is unneces- for the discharge of the cargo, the only sarily delayed by the fault of the con- obligation of the consignee or his ven signee he is liable, although the charter dee was to use due diligence in procurparty does not contain an agreement ing a berth and to discharge, according for demurrage. The Norman, 16 Fed. to the custom of the trade. The Z. L. Rep. 879.
Adams, 26 Fed. Rep. 655. In the absence of express stipulation If no lay days are provided for in the it is the duty of the consignees to fur- charter party or bill of lading, and no nish within a reasonable time a suita- stipulation is made as to the time of ble place for her discharge, and also to unloading, the consignee will not be complete it within a reasonable time; held liable for delays occurring without and that the fact that a considerable his fault. The Glover, 1 Brown Adı. number of vessels consigned to the 166. charterers had arrived with cargoes But where a charter party did not about the same !ime and there was a stipulate a certain number of lay days delay in consequence in assigning her a at the expiration of which demurrage birth was a circumstance for which the was to run, yet it indicated the rate at ship owners were not responsible. It which the cargo was to be discharged, was a risk the consignees themselves to-wit: “Not less than one hundred took when they agreed to freight the tons per day.” The total tonnage of schooner. Esseltyne v. Elmore, 7 Biss. the cargo was 1,808 tons, and dividing (U. S.) 69.
this by 100 made nineteen working In the absence of any express agree- days. The court held that this period ment for discharging, a vessel had to was fixed with as much certainty as wait its turn at a grain elevator, it being though nineteen working days had been the only one in the place. Held, that written in the charter party as the numthe consignees were not liable for the ber of lay days. Williams v. Theobald, detention. Finney v. Grand Trunk Ry. 15 Fed. Rep. 465; citing Sanquinetti v. Co., 14 Fed. Rep. 171.
P. S. Nav. Co., L. R., 2 Q. B. Div. 238. In the absence of any express agree- 1. Cross v. Beard, 26 N. Y. 85; The ment the consignee is not liable for de- L. Z. Adams, 26 Fed. Rep. 655; Fish lay caused by the vessel waiting her V. 150 Tons Brown Stone, 20 Fed. Rep. turn to be unloaded at an elevator 201; Brown v. Certain Tons of Coal, 34 where it is the custom of the port that
Fed. Rep. 913 all grain shall be unloaded at an eleva- 2. Fish v. 150 Tons of Brown Stone, Weaver v. Walton, 1 Flip C. Ct. 20 Fed. Rep. 201; Gronstadt v. Wit
thoff, 15 Fed. Rep. 265; Philadelphia Where it is impossible for the con- & R. R. Co. v. Northam, 2 Ben. 1; signee to receive the cargo by circum- Cross v. Beard, 26 N. Y. 85; Sleeper stances over which he has no control v. Ping, 17 Blatchf. C. Ct. 36; Randall he is not liable to pay damages for the v. Lynch, 2 Camp. 352; Hayden v.