254 had; ,by parcel bythEHvfong conveyance, and, a ]OS8 had thereby ensued; and yet the defendant in tllat case would' undQubtedly be liable:" " teinpted to an
a
TlrEMARY RILEY 11. THREE THOUSAND RAILROAn
TIEs.
Court, B. D. Penn8yl1Jania. February 5,1889.) f
1.,DEMURR,\GE-RIGHTS OF VESSEL.
In the a,bsence of an express contract, a vessel is only entitled to demurrage wllen detaiIled'through the fatiit of the shipper or consignee. OF Cj.'RRIAGE.
2.
Where a custom is established requiring vessels to wait their turn in un· loading at a particular port, the master is held to contract with reference to it; and, if no stipulation for demurrage is made in the contract, he assumes the risk of d e l a y . ' " ' SHIPPING-'--CARRIAGE OF GOODS.....F:aEIGHT-SUIT.
8.
A claim for freight cannot be sustained where the freight had not become due when suit was brought. ' , (Syllabu8 by the Court.) ,
In Admiralty. Libel by John Taylor, maste:t: of the schooner Mary Riley, againsf3,OOO railroad ties lately laden in said schooner, for freight and demurrage. Clutrles Barclay, for libelant. . John A.Toomey and Henry R. Edmunds, for respondents. BUTLER, J. 'October 7th last, J. W. T. Lee shipped on the Mary Riley a cargo of railroad ties, conEligIled to his own order at Philadelphia. The vessel arrived in due course, and was ordered by Lee's agent to the Pennsylvania Railroad Company's wharf. On going there she found a number of vessels ahead, unloading in order of arrival, and was thus detained in getting rid of her cargo. The master complained repeatedly of' this, and after some days Lee's agent, on being informed by the master that the ties were all white oak, sent the vessel to the Reading Railroad Company's wharf, where such ties were wanted. When the vessel arnved there, and the ties were inspected, and found to be of a different description, they were rejected. She was then ordered back to the Pennsylvania Company's wharf. , In the mean time several other vessels had arrived there, and the delay in up was thus increased. Seventeen days elapsed between the vessel's arrival in port and the time when unloading commenced. To recover demurrage for this, and also a balall<;e of $103.43 due on account o( freight, the suit is brought. little conflict in the testimony respecting the circumThere is stances under which the vessel was ordered to the Reading Company's wharf. I find them to be, however, as just stated. Lee's agent knew that, the latter company would only receive white oak ties, and the fact that he ordered the vessel there seems to be conclusive that he under-
I
THE MARY RH.EyV. THREE THOUSANDRAILBOAD TIES.
255
stood these ties to be of that description. The evidence shows that ties brought 1;(;), tbis port are delivered onlY\Rt the railroad companies' wharves, and that vessels bringing them await their turns, and cannot do otherwise,-there being no other place touiil'bad; that they are delivered ill pursuance of contracts previously made by shippers or consignees with the companies, Or oq calls published by the latter. There is very little conflict in the testimony respecting this. The witnesses generally say such is the well-understood custom of the port by persons dealing in and carrying ties here. I fi.nd the fact to be as. these witnesses. state it. Lee's agent testifies to ,an express agreement that the libelant should take the risk of delay in unloading. In the view I take of the case this is unimportant. It is not improper, however, to say that I do not think the testimony would warrant a finding of such agreement. Afterthe vessel had reached the wharf and unloaded a part oithe oargol the libelant commenced suit for demurrage and freight. An advancement had been made on account' of freight, and .no demand was· made .for the balance otherwise than by suit. Is the libelant entitled to recover? In the absence (){ contract a vessel is only entitled to demurrage when demined through fault of the shipper or consignee. Unless he has contracted to become responsible for delay, or is in some way blamable for the loss of time, he is not subject to charge on that account. Ifind nothing in this case to justify a conclusion that the detention resulted from any fault of the respondent. The custom of the· port respecting the delivery of'such cargoes is a part of the contract of shipment, and binding upon the vessel as fully as if reduced to writing therein. The M. S.Bacon, 3 Fed. Rep. 344; Henley v. Ice 00.,14 Blatchf. 522; The G1»ver, 1 Brown, Adm. 166; One Hundred and Sevunty;.Jilive Tons oj Coal, 9 Ben. 400; Wordin v. Bemis, 32 Conn. 268. Some of the cases, (among them Henley v. Ice Co., 8upra,) it is urged, go further. This,however, 1 am not now called upon to consider. The master is held to knowl.: edge of the custom, and regarded as dealing with reference to it. He therefore took the risk of delay in unloading. If not satisfied to do this he should have guarded against the danger by stipulating for demurrage. This was his only remedy. He did not, however, do it. His claim for demurrage. must therefore be dismissed. Nor can the claim for freight be sustained. Nothing was due On this account when suit was brought. If the respondent had been in fault respecting the delay the be sustained. The money would be due. But, suit for freight not become liable for in the absence of such fault, the respondent freight until the cargo was delivered. One Hundred and Tons oj Coal, BWp1'aj McOuUough v. Helltnig, 66 Md:269, 7 At!. Rep. 455; TlI.6 Eddy; 5 Wall. 481. The libel must be dismissed, with costs.
256
FEDERAL REI?ORTER, vol. 38. MEYERS et aZ.v. THE AMERICA and THE .NILE.
(Di8trict Court. D. Oonnecticut. March 23, 1889.) SHIPPING-LIABILITY FOR TORT.
While the libelants' vessel, B., was tied up at a Wharf, the N., a much larger vessel, was made fast to the wharf, close to and outside of the B. o where the water was of such depth that the N. was certain to. ground with low tide. Held that, the N. having grounded and listed over towards the wharf, her owners were liable for damages resulting to the B. from being caught between the N. and the wharf, and held until the rising tide covered her.
In Admiralty. Carpenter & Mosher, for libelants. Samuel Park, for claimants. SHIPMAN, J., This is a libel in rem to recover damages for the alleged negligence of the America and her tow, the Nile, whereby the Nile, when grounded npona falling tide, listed over upon the R. W. Burrows, which was lying at the wharf, and the latter was jammed and held fast between the Nile and the wharf until the rising tide covered and sank her. For eight or ten days prior to May 21, 1887, and for two summer seasons before 1887, the tug-boat R. W. Burrows had been engaged in towing mud-scows on the Pawtucket and Providence rivers, and was in the habit of laying up at night at the coal-wharves of the Boston & Providence Railroad Company, at a place known as" India Point," near Providence. Her officers or owners had not obtained permission to tie there, and paid no wharfage fof the privilege, but the watchman of the railroad cOl:npany knew that such was her habit, and made no objection. The agent of the company in charge of the wharves. knew that the river tugs, whose, captains lived in East Providence, were wont to tie up there without permission, and without objection. About 7 o'clock on Saturday evening, May 21, 1887, the said tug made fast to one of said wharves, at one of the five places thereat far discharging coal. Immediately.after, the tug America towed the barge. Nile, loaded with 408 tons of egg coal, which was owned by and consigned to the said railroad company, to another of its wharves at that point, and the latter was partially made fast. As the America had blown her whistle to attract the attention of the consignees, a person appeared at this time, whom I believe to be the watch. in authority, but who was not intrusted with man, and who said he authority in regard to the berths of vessels, and directed the captain of the America to place the Nile at the wharf where the Burrows was, or along-side of the Burrows, and said that her coal was to be discharged at the place where the Burrows lay. In fact the coal was not to be, and was not, discharged at that point. Coal is not unloaded at those wharves at night, or between Saturday night and Monday morning. The Burrows' captain and pilot saw the America and the Nile come up, and waited to see where the tow was to be placed, thinking that she might be ordered under the spot which the Burrows occupied; but, seeing that
MEYERS fl. THE AMERICA.
257
pl'eparations:were being made to make the tow" they left their own vessel, and went to Providence. No one directed the Burrows to leave towed the Nile outside of, and she was her position. The . hauled in close to, the Burrows; two fenders were placed between the vessels, and the Nile was made fast to the wharf. There was room for her at the wharf astern of the Burrows. Where she lay the water was 18 feet deep at high tide, and 12! feet deep at low tide. It was high water about 7 o'clock that evening. The Burrows drew about 6! The Nile commenced to touch bottom abo.ut 9 o'clock. All the persons on board the Burrows left her after she was made fast. Her captain and pilot returned about 10 o'clock, and found her fast and immovable between the Nile and the spiles of the wharf. No assistance could be obtained at that time to haul her out. She was not leaking, und, though thinking she was in some danger, they went to bed, and were awakened about 1 o'clock by the waters coming overthe deck. The tug sank, lind was raised some days thereafter in a damaged condition. The Nile had listed over somewhat upon the Burrows, and the Burrows had a little list towards the wharf. The deck of the Nile, which had been a bark, was at least 12 inches higher than the Burrows' deck. The officers or' the America and of the Nile knew the depth of the water, and that the She was' negligently placed dangerously near the Nile would Burrows, and' 80 near'that, when grounding took place, there was a probability of jamming the smaller Hnd inside vessel against the wharf. If the order was given to place the Nile along-side the Burrows, the America was not ordered to place the Nile in such close proximity to the Burrows as to endanger the latter's safety. It is evident that while the crew of the Burrows, between 10 and 11 o'clock, apprehended danger, they hoped that no harm would ensue, and therefor,e the testimony in regard to the cause of the accident is not very full, but it is tolerably clear that, after the larger, longer, and heavily laden vessel took the ground, she listed somewhat, and squeezed the tug between herself and the spiles of the wharf, and held her tight, and when the tide rose the Burrows could not float, and was covered and filled with water, and that the injury happened through the carelessness and negligence of those in charge of the America and the Nile. The law on the foregoing facts is stated in Vantine v. , The Lake, 2 Wall. Jr. 52; The Indian v. The Jessie, 2 Marit. Law Cas. 217; and The Lidskjalf, Swab. 117. The facts in each of these cases were very similar to those of the present case. The law is stated in The Lidskjalf, as follows: "When a vessel is lying on the shore, and another vt'sl!el is placed voluntarily by her owners, or those who are acting in their behalf, in such a position that damage will. happen if some event arises Which it is not possible to oontrol, the owners of the second vessel must be responsible for the damage." This must be especially true when the event which arises is one which ought naturally to be anticipated and to be guarded against. In this case it was certain that the Nile would ground. It was reasonable to expect, that she would list somewhat; and, Hshe listed towards the wharf" v.38F.no.3-17
FEDERAL
RErotiTEIt, vol. 38.
her proximity to the Burrows and in size·were such that . the latter would be necessarily squeezed against the wharf, and damage would ensue. Let there be a. decree of reference to &oommissioner to aBcertahi the of damage.
J'OHNSON 'V. THE
FRANKS. HALL. 15, 1889.
{District Oourt,B. North Oarolina. 1. BEAM1!ll't-WAGES.
Libelant shipped on board ,a vessel, it being understood. that he was to perhis transportation and board. Afterform services generally in return wards, in the absence of the regular cook, who hl1-d told libelant, though without authority, to take his place, the libelant performed services as cook. Held, that libelant could reoover ona quantum meruit fOI w.hat such services were aotually worth. . . . ;
SAME· . . ,'
A contract which the libelat;lt signed as instructed by the captain of the vessel, after' he had commenced work as cook. and by· which he agreed to work fOr a nominal sum, was held invalid, the llbill/Wt beinK unable to read, and the contract not being read to him, nor any information given to him as . to its contents. .. , .. .
In Admiralty. D. W. Stevenson, for libelant. (][ark for claimant. This .is a suit by the libelant for wagesaB cook on the schooner Frank S. Hall on a voyage from Philadelphia to Morehead City. . Libelant, wholives in Stonewall, N. C., had shipped as a. cook from that phice to Philadelphia; and, desiring to. return home,had applied to themaster of the FrankS; Hall, which was understood to be bound for Sttinewall, for The agreed to take him back. No precise contract appears to have been made, but it seems to have beenuI;lderstood that Johnson was to pay nothing and receive no pay, but was to:perforrn services generally as 8 return for his transportation and board.. Afterwards, and while the at anchor at New.' castle, the book was taken sick, and left the vessel. Before he went he told libelant to take his place, and that he would be paid his wages, which were $25 a month. The master of the vessel said nothing to libelant about wages, and the former cook had no'authority to make any promise to hitn which would bind thevessel, but he went to work .and voyage/which was tempestuous' one, served as codk and lasted for 20 days, the schooner having been blown far out of her course by the great' storm- of Nbvember last. There being no contract as to servibes, the libelant would have been entitled to be paid on a quantv,m meruit for what he 'was actually worth, but fof'the fact that he, after he Md'eommenced to' wOrk as cook',signedsbipping articles,-