SU'l'TON '11·. HOUSATO.NIC B.'
Oourt. S. D. New York. FebruarvW, 1891.)
WHARlI'AGE-UNSAFE BERTH-VESSEL'sRIGHT TO REFUSE. The master of a vessel, Oli learning 'of obstruotions likely to
injure his vessel at her designated berth, is in refusing to, go to such berth until iUs IW¥ll' safe, and may hold the conSIgnee for the delay. ' '
S; DEMURRAGE ....CONSIGNEELuBLE.
. Und6l' a bill of lading which states that consignee is to :PAY the freight and.discharge Ilupject to the conditions of a bill of lading which prpvides for the. parment '01. dethurrage by the consignee, such Consignee, on' receiving the cargo without objeotipn,is liable for demurrage, though caused by a third party whom he has en. gaged to discharge. 8. 'SAlIlE-GUARANTY-DEPTlI OF WATER. . ., A slllpulation in a ,bill oflading guarantyhig a certain depth of water to the vessel at her discharging berth renders such consignee liable for the delay caused by. the lack of such depth.
In Admiralty. Suit to recover Hewry D. Hotchki88 and Mr. Maddo:c, for libelant. Daniel Davenport, for respondent.
BROWN, J. In actions brought against wharfingers for damages caused to vessels by obstructions in the slips and along the docks, it is a good defense,' wholly or in part, that the vessel had notice or the obstruction, and did not exercise reasonable care and diligence in avoiding it.' The Stroma, 42 Fed. Rep. 922; Christian v. Van 1'a88el, 12 Fed. Rep. 884. And see Cr088lln v. Wood, 44 Fed. Rep. 94; The CaUiope, L. R. 16 App. Cas. U. From this it followsthat when the master ofthe Ives, which drew 15 feet, ascertained that at the berth where the ship was directed to go there were stones iIi the mud within a less depth than her draught of water at low tide, he was justified in refusing to go to the berth until it was mnde safe. He was not bound to take the risk of running upon the stones, or of settling down upon them, and of thus testing whether the mud would yield so much and so easily as to do his vessel no harm. Mr. Olds was the agent of the defendant railroad company, the consignee of the coal, and also of the New England Terminal Company, which was the lessee of the wharf, and had the sole control of discharging vessels there. It was no doubt the duty of the latter to keep the slip free from injurious obstructions. The bill of lading shows that the cargo of coal was received by the defendant through Mr. Olds as their agent under this bill of lading, and that Mr. Olds.acted in their behalf in noting the time of arrival and of discharge by his indorsements thereon. The the coal into the defendant's bin, and the terminal evidence shows a detention of the vessel 10 days beyond the time pro. vided in the bill of lading. The cause of this delay was in part the removal of the obstructions from the slip, .which the captain demanded, a.nd in part the slow. fjl.te of discharge afterwards,said to have arisen from the fact that the vessel was not brought close up to the wharf. where
Reported by Edward G. Benedict, Esq., of the New York bar.
spiles hau been put down by the company, though they afterwards appeared to have been unnecessary. It may possibly be that, as between the New England Terminal Company and the defendant, the former should indeninifythe latter for the delay in the discharge of the Ives; but this, I think, does not debar the libelant's claim directly against the defendant under the terms of the bill of lading, which expressly states that thecoDsignee should pay the freight, and discharge subject to the conditions of the national bill of lading, which provided for demurrage at the rate of $54.20 per day upon such cargoes as this, to be paid by the consignee or his assignee. .The acceptance of a cargo under such a bill Qf lading without objectionimports an agreement to pay demurrage as well as freight according to its terms. Neilsen v. JMUp,.30 Fed. Rep. 138; North German Lloyd v. Heule, 44 Fed. Rep. 100. The express stipulation in the bill of lading, moreover, that 16 feet of water was guarantied, would likewise make the respondents liable for any delay caused by the lack of that water at the berth assigned her. If the consignor had no .authority to insert such a guaranty, it was competent for the consignee on the arrival of the ship to refuse to accept the consignment on those terms by giving prompt notice to the master. This was not done. On the Mr. Olds, as agent of the defend3nt, noted the arrival on the bill of lading, and undertook to receive the cargo for the respondents, as well as to manage the discharge on behalf of the terminal company, without objection.. The SwaUo.,p, 27 Fed. Rep. 316. . ·. It is setup in the answer, but not proved, th&t by the contract between. the consignor and the consignee. the former was tQmake deli very into the. respondent's bin.an the wharfwithout to the. defendant. But.the biUoflading wflS plainly with thi!) agreement, as it imposed the payment of freight, as well as of demurrage, upon the consignee. It. appears that the captain had no knowledge of the agreement t¥leged, relied, as he was entitled to rely, upon the provisions oUhe bill of lading; and, as I have said, no objection to its provisions was lllaqe... I must hold tbe claim for demurrage against the defendant, therefore, legally established, whatever may be the .latter's right, if any, to look to others for indemnity. Decree for libelants for $5.44.20, and costs.
et al. v. THE SAM BROWN et al.
(Dtstr£ct Oourt, W. D. Pennsyltvanm
SB.umN-DI8CHARGE-PORT OP SHIPMENT.
. 'Where libelaJlts shipped IIoS deck-hands on a steam-boat at Cincinnati, without IIny agreement as to the duration of the voyage, the port of its termination, or their dis.oharge, the legal presumption is that they are to be returned to the port of shipment, and, if upon their arrival at Pittsburgh they are discharged, they IOro all entitled, except one whose residence is Pittsburgh, to compensation for their Lime and expense in returning' to Cincinnati, irrespective of the fact that Pittsbul"gh is t!:l9 home port of the bOtlot.