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Whitmore, 74 Me. 230; Manson v. the vessel to put the barrels on the dock. New York N. H. & H. R. Co., C.C.D., The agent replied that he was willing Conn., 24 Blatchf. 448; 31 Fed. Rep. to do so if the owners would arrange 297; Tiis v. Byers, 34 L. T., N. S. with the dock owners to receive them 526.
there (the wharf owners having refused Where it was stipulated that a vessel to receive them on their wharf), and at was to load at a certain port and pro- the same time notified the owners he ceed to the port of destination, the lay should hold them responsible for detendays to begin on a fixed day in a cer- tion if they did not get the barrels out tain month, by common consent another by the night of the 29th. Nothing port for the loading was substituted. more was done by the owners until the Held, that the rest of the charter party morning of the 31st, when they sent a was not changed and the lay days be- lighter and the barrels were delivered gan at the stipulated time fixed by the
Her four days were occupied in charter party. Jackson v. Galloway, 5 delivering to the lighter. It was held Bing. N. C.71.
that the ship owner was not in fault, Where the charter provided that the because in selecting a place for the delay days for discharge should livery of the cargo in conformity with mence from the time the vessel is the contract of the parties, he selected ready to discharge cargo, and written one that was not altogether convenient notice thereof is given to the charterer's for the barrel owners. That the lay agent, and it appeared that the char- days began to run after the ship reached terer had no agent at the port to the berth to which she was directed by whom such notice could be given, it the consignees of the rails, and that the was held that the charterer could not detention of the ship was caused by the avail himself of the absence of the writ- barrel owners' delay. The ship owner ten notice, because he was chargeable was allowed four days' demurrage. with negligence for having no agent to Gronstadt v. Witthoff, 21 Fed. Rep. whom the notice could be given. Hat 253; 15 Fed. Rep. 265. ton v. De Belaunzaran, 26 Fed. Rep. 780. A ship was chartered to go to a cer
A charter party provided, among tain point and there load with timber. other things, that the cargo might con- The charter party provided that “from sist of empty petroleum barrels and the computation of time allowed for deiron rails, to be carried to New livering the cargo to the ship shall be York, and also provided that the cargo excluded any time lost by reason of should be discharged in the same berth drought.” It appeared that it was cuswhere the rails should be discharged. tomary to float the timber down to this The respondent's barrels were shipped point for shipment from the interior in under a bill of lading which, among the creeks and rivers, and that by reaother things, provided that the barrels son of an extraordinary drought the should be taken free from on board the charterers' timber could not be foated vessel in four running days with demur- down to this point, or at least necessirage at £10 per day for longer detention, tated transportation in such small and contained a clause, "all other quantities and with such delay the things as per charter party.” The vessel loading and shipping of timber at this arrived at the port of New York on May point, and that while a drought did af21st, 1880, and upon the request of the fect the interior creeks and rivers, it in owner of the rails went to the one ba- no wise affects the waters at the point sin to discharge her cargo, and not or the booms where the timber was being able reach the wharf, kept or the transportation of it from moored alongside another vessel. The the booms to the ship at anchor. Helil, barrels were above the rails. She that the stipulation with reference to remained practically in this position the drought applied to the creeks from until the afternoon of May 31st, waiting which the supply of timber for shipto reach the wharf. The barrel owners ment at this point came, and that in having been notified on the 25th of her view of the particular port and trade to arrival, obtained an order for the de- which the contract related and that the livery of the barrels on the 26th from drought prevented or delayed the dethe vessel's agent, and being informed livery of the cargo to the ship, the that the vessel was at the Erie basin, said charterers and cargo are released from that they would send a lighter. On the any liability for demurrage by the ex27th the owners notified the vessel's ceptions in the charter party. Paterson agent that there was no lighter alongside v. Dakin, 31 Fed. Rep. 682.
specified period, no matter from whatsoever cause, excepting a It was stipulated in a bill of lading require the captain to unload.
It was that "cargo to be discharged with primarily the captain's duty to unload. quick dispatch as customary or to pay That the consignees discharged all demurrage at £5 per day. Held, that if their legal duty upon the arrival of the the custom of the port made it the duty boat by giving the captain notice that of the consignees to obtain a place for they would not unload the boat except the discharging of the cargo, they were in its regular turn, and in that case liable for demurrage occasioned by would pay no demurrage, and by offer. their refusing to do so after they had ing the captain a berth where he could accepted the cargo. Terjesen v. Car- unload himself if he did not accept the ter, 9 Daly (N. Y.) 193.
offer; and that this notice to him was a reIt was provided in a charter party jection of their right of election to unload. that the charterer was to be liable "for That the final unloading by the conany detention of the vessel after the ex- signees cannot be construed as done piration of fifteen lay days.” The lay under the election in the bill, but as a days expired on Saturday and the subsequent favor to the captain, indeloading was completed early Friday pendent of the bill and imposing no liamorning But the charterer did not bility under it. McLaughlin v. Alfurnish the necessary documents for bany and Rensselaer Iron and Steel Co., clearance until Monday afternoon just 61 How. Pr. (N. Y.) 439. See also in time to clear at the custom house, opinion of CHOATE, J., in Tuttle v. Albut not in season to make it practicable bany & Rensselaer Iron and Steel Co., to sail until Tuesday morning. Evi- to the same effect, reported in note, dence was given by the charterer of a McLaughlin v. Same. general practice and understanding in 1. Fish v. 150 Tons of Brown Stone, accordance with a rule of the produce 20 Fed. Rep. 201; Gronstadt v. Witexchange that allows charterers one thoff, 15 Fed. Rep. 265; Philadelphia & day after loading to furnish the neces- R. R. Co. v. Northam, 2 Ben. I; Cross sary papers and documents. Held, that V. Beard, 26 N. Y. 85; Sleeper v. the general clause giving demurrage Puig, 17 Blatchf. C. Ct. 36; Randal v. was designed to bind the charterer for Lynch, 2 Camp. 352; Williams . the neglect of any duty required of him Theobald, 15 Fed. Rep. 465; Manson e'. to enable the vessel to sail, and that no New York N. H. & H. R. R. Co., 24 custom was proved or could be sus- Blatchf. C. Ct. 448; Tapscott v. Baltained that warrants more than the al- four, L. R., 8 C. P. 46; Jones v. Adamlowance of one additional day to fur- son, 35 L. T., N. S. 287; Barrett v. Dutnish the ship's documents after the ton, 4 Camp. 333; Conner v. Smith, loading is in fact completed, or until Taunt. 654; Barker v. Hudson, 3 M. & the end of the lay days if that be lat- S. 267. er, and that the ship cannot be de- If the ship is detained in this way aftained after the lay days have expired ter the loading is completed the charwithout compensation when the load- terer is not liable. Pringle v. Mollett, ing has been actually and practically 6 M. & W. So; Jamieson v. Laurie, 6 more than a day before. The char- Bro. C. P. 674. terers were held for one day's demur- When it is provided in the charter rage. Rumball v. Puig, 34 Fed. Rep.665. party that detention by ice is not to be
Where a bill of lading had the follow- reckoned as lay days, detention of the ing stipulation, viz: "In case consignee lighter by ice in bringing the goods to discharges cargo or any part thereof, the ship is included. Hudson v. Ede, they are to charge not to exceed ten Law Rep., 2 Q. B. 566; by act of gov. cents per ton and to have four full ernment, Bessey v. Evans, 4 Camp. working days after notice of arrival at 131; Hill v. Idle, Id. 327; Bright i. dock of consignee and to pay master Page, 3 B. & P. 295; Hartman v. Clark, for any time (exclusive of Sunday) 4 Camp. 159; Harman v. Mant, Id. boat is detained for discharging after 161. the expiration of said four days five dol- If the charter party stipulates that the lars per day and at the same rate for discharging of cargo is to begin within portions of days.” Held, that under twenty-four hours after arrival and nothe bill of lading the consignees had an tice thereof given to the consignees. The election, upon arrival of the boat, lay days begin to run at the expiration of whether they would unload the coal or the said twenty-four hours. Manson
delay caused by some default of the ship. The shipper is held strictly to the terms of the stipulation, and no custom of the port or municipal regulation of the port prohibiting the unloading for a limited period, will be allowed to override it.? Delay occasioned by frost, tempest or the crowded state of the docks will not relieve him from the payment of demurrage. But if the boat owners stipulate to unload at a particular wharf or dock
v. The New York N. H. & H. R. R. demurrage, notwithstanding it took Co., 24 Blatchf. 448; The Boston, i thirty days to load instead of the eighLow. 464; Choate v. Meredith, teen. The cargo was to be delivered Holmes, şoo.
within reach of the ship's tackle, but as 1. Davis v. Pendergrast, 16 Blatchf. the master did not object to this deC. Ct. 565; The Glover, 1 Brown livery at the time he was deemed to Adm. 166; Re Two Hundred and have waived his right in that respect Twenty Tons of Fish Scrap, 5 and accepted the delivery. Arreco v. Hughes C. Ct. 141; Four Hundred Pope, 36 Fed. Rep. 606. Tons of Iron Ore, 18 Fed. Rep. 94; 3. Williams v. Theobald, 15 Fed. The Boston, 1 Low. 464; Choate v. Rep. 465; Cross v. Beard, 26 N. Y. 85; Meredith, i Holmes 500; Manson v. Sleeper v. Puig, 17 Blatchf. C. Ct. 36. The New York N. H. & H. R. R. Co., It was provided in a charter party 24 Blatchf. C. Ct. 448.
"to discharge at a wharf as ordered by 2. Fish v. 150 Tons of Brown Stone, charterer's agents, or so near thereto as 20 Fed. Rep. 201; Williams v. Theo- she may safely get,” and “to discharge bald, 15 Fed. Rep. 465; Cross v. Beard, with customary dispatch.” Held, that 26 N. Y.85; Sleeper v. Puig, 17 Blatchf. the charterer was liable for detention C. Ct. 36; Philadelphia & R. R. Co v. caused by his selecting a wharf that Northam, 2 Ben. 1; Gronstadt v. Wit- was already occupied. Lindsay v. thoff, 15 Fed. Rep. 265; Randall v. Cusimano, i2 Fed. Rep. 504. Lynch, 2 Camp. 352.
A vessel was to be discharged at the Generally consignee takes risk of rate of 100 tons per day, and by a comroads and means of transportation from putation the court determined that the wharf and is bound to take cargo as nineteen working days was to be alfast as delivered. Sprague v. West, lowed as lay days. She was ready to Abbott Admr. 548.
be discharged October 24th, but was Where a vessel is seized by the cus- not entirely discharged until December tom house collector, if the seizure was Ist. Two days of this time the boat legal and occasioned by any act or neg- used in taking stiffening. The court held lect on the part of the master, the con- that the lay days began to run October signee will be liable for freight, only, 24th and included November 14th (alsubject to a deduction for such damages lowance being made for three Sunas he may have sustained by reason of days), and that she was held on demurthe nondelivery of the cargo because rage from and including November it was not then delivered. If the seizure 15th, and that after deducting the two was legal and occasioned by any act of days stiffening was taken the consignors the consignee, such as a neglect to pay were liable for fitteen days' demurrage. duties on the cargo, then the consignee the charter party provided that the will be liable for the full amount of vessel was "to proceed to the port of freight and perhaps demurrage, but if San Francisco, or so near thereto as the seizure was illegal the consignee is she can safely get," and was to be disliable for the full amount of freight, but charged “alongside any craft, steamer, no demurrage. Brooks v. Minturn, i floating dock, wharf or pier as may be Cal. 481.
directed by the consignees.” The conA charter party allowed eighteen days signees directed her to deliver cargo at for loading. The charterer did not be the wharf of the San Francisco Gasgin to deliver the cargo until five days light Co. The cause of the detention after ship's arrival, but after he com- was that other vessels were unloading menced to deliver it to her it was de- at the dock and she had to wait her livered as fast as the ship loaded it. Williams v. Theobald, 15 Fed.. The court allowed the ship five days. Rep. 465.
and their boat is then delayed only by waiting for her regular turn, and there is no stipulation of dispatch, the lay days will not be considered as running while she is thus detained.1
If it is stipulated that in discharging the vessel she is to have "dispatch" or "quick dispatch," the consignee is liable for any time not used in discharging the ship after he has received notice of her arrival, and he may be liable for some of the time used in discharging her if he does not receive the cargo with all the dispatch possible; ordinary dispatch is not always sufficient. The only time that can be considered as lay days is the necessary time used in unloading. A contract of this kind overrides any customary mode by which they are to take their turn at the wharf.2
But if the stipulation provides that the loading or unloading is to be with customary dispatch or in its regular turn, then the usage and custom of the port will control.3
Where it is stipulated that a vessel is to be ready and that the lay days are to begin at a fixed date, if the ship is not ready by that time the lay days do not begin to run and the charterer is not
1. 175 Tons of Coal, 9 Benn. 400. Where the cargo was to be delivered Under a charter party where a cargo
at a certain dock but the dock owners of timber was taken from Riga to the refused to allow her to discharge at Canada dock in the port of Liverpool said docks, the charterers are not liable and a stated number of days was al- until she finds a proper berth in which lowed for unloading, it was held that to discharge. Carsenego v. Wheeler, according to general law the lay days 16 Fed. Rep. 248. began from the time the vessel entered 2. Davis v. Wallace, 3 Cliff, 123; the dock, but that it was competent for Keen v. Andenrid, 5 Benedict; Thache the owners of the timber to show, not- v. Boston Gas Light Co., 2 Lowell 361; withstanding the fact that the ship Smith v. 60,000 Feet of Yellow Pine owner was a foreigner, that it was the Lumber, 2 Fed. Rep. 396; Kearson v'. usage in the port of Liverpool that with Pearson, 7 Hurl. & N. 386; 1,100 Tons ships loaded with timber the lay days of Coal, 12 Fed. Rep. 185; Choate '. began only from the time of the mooring Meredith, i Holmes 500; Bjorkquist '. of the vessel at the quay where by the Steel Rail, 3 Fed. Rep. 717; Sleeper v'. dock regulations she was alone allowed Puig, 17°Blatchf. c. Ct. 36. to discharge. Norden Steamship Co. The charterers are liable for any v. Dempsey, 1 L. R., C. P. Div. 654; 45 delay in causing the vessel to be disL. J., C. P. Div. 764; 24 W. R. 984. charged over and above the necessary
But when the charter stipulates that lay days, although the detention was the ship is to be brought to a particular caused by the custom house rule that dock, or so near thereto as she can safely regulated when and where the vessel get, and she is prevented from coming to should discharge, and if the parties inher primary destination by any perma- tend that the customs and rules of a nent obstacle other than an accident of port shall control as to the time of disnavigation, the ship owner is entitled to charging, they must so provide in the damages for the detention by reason of charter party. Sleeper v. Puig, 17 the charterer's refusal to receive the Blatchf. C. Ct. 36. cargo at the alternative place of de- 3. Gates v. Ryan, 37 Fed. Rep. 154; livery, although the obstacle which pre- Leideman v. Schultz, 14 C. B. 38; 24 vented her getting to the dock (viz, Eng. L. & Eq. 305; Taylor v. Clay, 9 their crowded condition) was not an Q. B. 713; Hudson v. Clement, 18 C. obstacle endangering her safety. Nel- B. 213; 36 Eng. L. & Eq: 332; Nichols son 7'. Dahl, 12 L. R., Ch. Div. 568, v. Jewett, U. S. D. C. Mass., Boston 593; Ford v. Cotesworth, L. R., 4 Q. Daily Adv., March 23rd, 1857; Nichols B. 127; Cross z'. Beard, 26 N. Y. 85. v. Tremlett, 1 Sprague 361.
obliged to fulfil his part of the agreement, for time is the essence of the contract. 1 The burden is always upon the libellant to prove a fault causing the delay.2
(c) Discharge in Two Places.-At a port where it is the usual custom for a vessel to discharge her cargo within the port in two separate parcels and at two different places, and the time arrives when the consignee is bound to accept a part delivery, the voyage is ended and both places taken together constitute the usual place of discharge and the lay days commence to run from the arrival of the vessel at the first 3 But it is otherwise where she is obliged, for the purposes of navigation, to discharge some of her cargo at the entrance of the port before arriving at the usual place of discharge. The lay days begin only when she arrives. at the latter.4
And it is a question for a jury to determine in each case, from the terms of the contract and the usage of the port, whether the unloading of a part of the cargo is a partial discharge or a mere lightening5
III. COMPUTATION OF LAY DAYS.—When the word “days" alone is used with reference to lay days or days for loading a ship, all the running or successive days are counted. But if the term "working days” is used, all days are counted except Sundays and holidays.? If the parties wish to further except days when the weather prevents work they use the expression "working days," "weather working days," or "with customary dispatch," or some other expression which clearly indicates the intention to recognize that days of inclemency from winds and storms are also excepted.8
1. Weisser v. Maitland, 3 Sandf. (N. usual place for the commencement of the Y.) 318.
discharge. McIntosh v. Sinclair, 11 Ir. 2. A Cargo of Wooden Posts, 34 R. C. L. 56 Exch. fed. Rep. 917
6. Pedersen v. Eugster, 14 Fed. Rep. 3. McIntosh v. Sinclair, 11 Ir. R. C. 422; Brown v. Johnson, Car. & M. 440; L. 456 Exch.
10 M. & W. 331; Brooks v. Minturn, i 4. Brereton v. Chapman, 7 Bing. 559; Cal. 481. Kell 7'. Adams, 19 M. & W. 498; 12 L. If the charter party provides for a J. Exch. 101.
Compare Caffarein v. certain number of running days to disWalker, 10 Ir. R. C. L. Exch. 250. charge the cargo, the charterer takes
5. McIntosh v. Sinclair, 11 Ir. C. L. the risk of holidays, Sundays and other 456 Exch.
nonworking days. Davis v. PenderWhen the place of the removal of the gast, & Ben. 84. cargo is within the limits of the port 7. Pedersen v. Eugster, 14 Fed. Rep. and that removal from that place is so 422; Brooks v. Minturn, i Cal. 481. common as to become the foundation It was held in Pedersen v. Engster, of a binding usage to unload and de- supra, that the term had, in commerce liver at that place, and if the larger and jurisprudence, a settled and definite portion amounting to about two-thirds meaning, and when it is used in a of a ship's cargo is there delivered to charter party parol evidence will not the custody of the merchant, a jury be admitted to show that at a certain may, although the merchants attempt port any usage prevails which would to establish an inconsistent usage as to vary this legally ascertained definilay days, hold that there was a part tion. discharge and that where the unloading 8. Pedersen v. Eugster, 14 Fed. Rep. and receiving of cargoes is usual, is a 422. By the provisions in