terioration on those tha.t died, because in all probability these were not the best beasts; and as to these, all further risks of the voyage, and all further expense of attending their keep and sale, ended with their death, and was saved the libelant. The amount of the decree will therefore be:
Cattle consigned to A. & T. Tiel'man, and stowed between-decks, total For 25 died, at £24 each, For depreciation on 154 arrived, at 30 shillings each, Cattle consigned to Young & McQuade, carried on main deck, total, Fur 16 died, £23 each, Less one carcass, For depreciation on 145 arrived, at 30 shillings each, Tiernan's, Young & McQuade, · At current rate of exchange, say $4.89. (No interest.)
179 £600 231 £831 161 £368 16
£569.10 831 569.10 £1,4:00.10
HOUGE v. WOODRUFF and others.
(Di8trict Oourt, 8. D. New York. January 8,1884.)
SmpPING-DEMURRAGE-REASONABLE 'rIME-CARGO OF SALT.
A merchant who huys cargo on board ship after her arrival, taking no transfer of the oill of lading or charter-party, a.Ild having no knowledge of either, is bound only to the use of reasonable diligen,1e in discharging in conformity with the custom of the port.
SA)[E-CHANGE OF BERTH.
Where a vessel has ohtained a herth at the place assigned by the mCl'chant, and is ready to dischal'ge, and she proceeds at his request to another berth, where a furthcr delay arises, the vessel is entitled to be paid for the expense and delay caused by Buch remllval, in the absence of any special usage of the port or trade authorizing Buch a change at the vcsscl's expense.
By usage in the salt trade, rainy weather is deducted, Balt not being removable without damage during such weather.
The bark Elliseff, of which the libelant was master, brought in ballast about 257 tons of salt from Lisbon to New York, where she arrived on the twenty-sixth of December, 1880. The salt came under a charter-party and bill of lading consigned to Hagemeyer &
HOUGE V. WOODRUFF.
Brun, who entered it in tbe custom-house .and sold it on board to the respondents. The latter had no knowledge of the charter-party or the bill of lading, and took no transfer of either. The vessel went to Merchants' stores on the twenty-seventh of December, obtained a. berth on the 28th, and gave respondents notice that the ship would be ready to deliver on the 29th. On the afternoon of the 28th the respondents, by letter, requested the captain to go to Wallabout to discharge. The captain at once called on the respondents, and, as he testified, refused to go unless the respondents would guaranty that there .was sufficient water, which he said the respondents did guaranty. Mr. Wooqruff, with whom this interview was held, denied this statement, and testified that he stated only that larger vessels than this had discharged at the Wallabout; that he did not think there would be any difficulty about it, and that the captain must examine and satisfy himself; that the captain went out and afterwards came back and said he would go, whereupon the vessel was taken, On the 29th, to the Wallabout by a tug hired by respondents for that purpose. On arrival there, the harbor-m'aater stated that· no berth could be had until the 31st, owing to the presence of other vessels. On the 31st a berth was in readiness, but in the mean time, owing to extreme and unusual cold, the vessel got frozen in, sO that she was unable to reaoh her berth until the fourth of January. The discharge was commenced on that day and finished on the 12th. One thousand bushels per day, equaling 88 tons, was proved to be a reasonable' and customary rate of receiving and discharging a cargo of salt, and that rainy days were not counted in the salt trade, as that article cannot be discharged in bad weather with safety. The charter-party provided for a discharge ,at the rate of 50 tons per day; the bill of lading contained no provision on the subject. Butler, Stillman cE Hubbard, for libelant. Beebe, Wilcox cE Hobbs, for respondents. BROWN, J. As the respondents bought this salt from the consignee, who had entered it as his own, and took no transfer of the charterparty or bill of lading, and had no knowledge of either, they are not responsible upon any of the provisions of those instruments. 1 Maude & P. Merc. Shipp. 898. The whole evidence, however, makeS it clear that upon the purchase of the salt, which was by verbal contract only, they were to receive it from the ship. Their obligations with respect to the discharge are, therefore, only to use reasonable diligence, in conformity with the customs of the port, as in cases of the absence of any bill of lading, or of any stipulation in the bill of lad· ing on the subject of discharge. Ooombs v. Nolan, 7 Ben. 801; 7'he Hyperion's Oargo, 2 Low. 98; Oros8 v. Beard, 26 N. Y. 85; Henley v. Brooklyn Ice Go. 14 Blatchf. 522; Kane v. Penney, 5 FED. REP. 830. Considering the sworn testimony of the captain shortly after the transaction, and the contents of his letter of the 28th, I cannot doubt
that the vessel went to Merchants' stores by direction of tb'3 Nspond. ents. On the 27th she obtained a berth and was ready tu dIscharge thereon the 29th, after a delay of two days. She then went to thl Wallabout, at the request of the respondents, where there was a furthel unavoidable delay of twodays; but after those two days she could havE obtained a berth had the ice not further delayed her. It cannot be assumed, in the absence of positive proof to the contrary, that the directions of the harbor-master were improper, or that there was any other vacant berth which she could have procured earlier. Where a vessel has once obtained a berth at a dock, directed by the merchant, and is in readiness to discharge there, the merchant certainly has no right, in the absence of a particular usage, or of some stipulation authorizing it, to Rend the vessel to another berth, except at his own expense for the removal, and for any delay which properly'arises from it. Where an established usage has been proved giving the merchant a right to, at least,one change of berth in the discharge of the cargo, he is' not liltble for the delay caused by the removal, because that is a part of the vessel's obligation. Smith v. 60,000 Feet 0/ Yellow Pine Lumber, 2 FED. REP. 396, 400; Moody v. 500,000 Laths, ld. 607. No such usage was, proved in this case; nor, in fact, was an;y part of the cargo discharged at Merchants' stores. The Wallahout basin was a proper and customary place for the discharge of salt. The respondents might properly have directed the vessel there in the first instance, but as the vessel had already lost two days' time in obtaining a berth at Merchants' stores under -the re$pondents' direction, and the same time would have been necessarily lost at the Wallabout in obtaining a berth by the 31st, the respondents must be charged with the two days' doulJle delay caused through their own change of direction. The master, it is true, seems to have acquiesced in this removal, because the charter-party required ·him to make one removal in delivery, if desired ; and he does ndt appear to have understood that the respondents were not bOllnd by the terms of the charter-party. The respondents cannot claim the benefit of this provision,unless they are willingtb be bound to discharge ll.t the rate of 50 tons per day, .which they do not accept. The charter"party must therefore be wholly disregarded. As the first of January was a holiday, and tha 2d was Sunday, there was but one additional day's lost tillle, namely, the 3d, before the vessel had got along-side her . berth and commenced her discharge. This delay was caused by the ice, and not by the fact that the vessel grounded in the mud at low water. The ice arose from extreme and unusual cold,-'-a fortuitous accident of the elements; for which the owner of the cargo is notresponsible, in the. absence. of specific lay- days, and when liable only uuderthe >obligationto use reasonable diligence in receiving cargo. Cross v. Beard, 26 N. Y. 85; Coombs v. Nolan, supra; The ]J.[ary E. Taber, 1 Ben. 105; The Glover, 1 Brown, Adm. 166; Fultonv. BtH];,e, 5 Biss. 371; Kane v; PenneY,8upm. After the 4th, one da..,., the
9th, being Sunday, there was no delay in discharging beyond thecustomary rate, which would allow eight WOl'kingdays. .' Decree for the libelants for two days' demurrage, at the customary rate of 10 cents per ton per day, amounting to $84.
(Di3trict (Jourt, S. D. New York. December 28, 1883.)
for minor offenses, except as regulated and provided by statute. 2.
SAME-MERCHANTS' SHIPPING ACT OF GREAT BRITAIN.
In modern maritime law fines upon seamen being a forfeiture of wages, pro tanto, cll-nnot be imposed by the master by way of discipline and punishment
The merchants' shipping act of Great Britain provides that the shipping articles may contain such stipulations for fines as may be approved by the board of trade. When such approved stipulations are apart of the shipping articles signed by the seamen, fines may, be imposed accordingly by the master. '
3. SAME-SHIPPING ARTICLES. i:'luch tines, however, cannot he allowed in diminuHonof a seaman's wages except upon proof by the shipping articles that such stipulations were agreed upon. 4. SAME-SUMMA-.I PROCEEDINGS. . ' In sU/llmary actions for seamen's wages, the authority of the statute is sufficiently I leaded by a general reference to the law of Great Britain. The court is authorized by section 4597 of the Revised 8tatutes toinfiict partial forfeiture of wages for disobedience of lawful commands.
Ii SAME-CASE STATED.
Where a British seaman on a British vessel was tined by the master two dollars for foul language and quarrelsome conduct, aud afterwards, on being required to listen to the reading of the entry on the log, imposing the fine, he refused to attend or listen, and was fined two being two days' pay for the last offense, held that, in the absence of proof' of the shipping articles, the tlrst fine could not be allowed or deducted from his wages, but that the last fine should be allowed by the court for the seQ,man's disobedience of a lawful command, under section 4597 of the Hevised Statutes, as well as section 243 of the merchants' shipping act.
, In Admiralty.-
BROWN, J. This is an action for seaman's wages upon an English ship, for 45 days, from June 19 to July 26,1888. When the libelant at this port his wages for that period unpaid amounted was to $29.50, of which $25.50 has been tendered and paid into the registry of the court. The difference of $4 is a deduction by way of the master upon the seaman for alleged misconduct fines imposed durinf. +.he voyage; the 'first, a fine of $2 ,for. viblent and abusive lanthe steward iIi the hearing of the upon some conguage troversy iureference -to the food, about 12 days before the arrival of the vessel in this port. ' An entry was made in the log 0.8 follows:
H.yland et Zabriskie, for libelant. McDaniel et Souther, for claimants.