SORENSIN fl. KEYSER.
117
SORENSIN
et al.
fl. KEYSER!
(District Oourt, S. D.
j\
fBl'ssippi.
September 21, 1891.)
DBlW'mAGE-ExCEPTIONS IN CHARTER-PARTY.
Where a charter-party allows a certain number of days fol' delivery of a cargo, and excludes from computation therein all time lost by reason of flood, drought, storm, and any extl'aordinary occurrence beyond control of the charttlrer, and the charterer fails to deliver his cargo within such time because of storms and a droQght which affects the river, which is the main source of supply at the port of loading, he is !lot liable for demnrrage. Paterson v. Dakin, 81 Fed. Rep. 6132, followed, and Grant v. OCYU/ffdale, L. It: \I App. Cas. 470, distinguished, ,
In Admiralty. Libel inper8onam. ROlM8 &- Grant, for libelants. Ford« Ford and John C. Avery, for respondent. TOULMIN', J. This is a libel in p'erBonam for demurrage. The libelants are the owners ofthe bark Urania, which had been chartetedtd re{leive on· board at Ship island a cargo of timber. By the charter-party the <lharterer undertook to deliver the cargo at port of loading ill 27 working days, which were allowed him for "actual delivery of cargo along-side." The charter-party stipulates' that in the computation of the days for delivering the cargo shall he excluded any reason of drought, floods, storms, or any extraordinary occurreI1<lebeyond the control:ofthe charterer. Notice of the ship's readiness toreceive (largo was given on January 7, 1890, and the lay-days for began on would have expired February 12, 1890; February 11, 1890, and was not completed until March 30, 1890;" The defense is that by reason of drought and storms delivery of cargo was delayed, and that all the time lost washy reason of these extraordinary {)ccurrences, beyond the conttol of dflfendantj and that, excJuding such lost time in the computation ofthe days allowed fordelivering the cargo, 27 working days were not consumed in delivering thecllrgo at the port {)f loading. The evidence in this case is'without conflict. It shows that, according to the custom and usual course of business, vessels chartertld for Ship island obtain timber for their cargoes from the Pascagoula river and its tributaries by way of Moss point. It shows that when timber brought for such cargoes from Mobile and other points it is for some exceptional reason, and is done at extraordinary risk anrl expense. It shows that prior to the chartering of the bark Urania the defendant had purchased and contracted to purchase mnch more timber than ,,:as required to load her and the other vessels he had chartered forShipisland at and about the same time. and that the delay in the delivery to the vessel of the cargo contracted for was by reason of an extraordinary -drought that prevailed throughout the extent of country, affecting the rivers and streams from which the intended cargo was to be obtained; that this dr{)ught prevailed for several months before the arrival of-the I
Reported ,by Peter J. HamiltoD, 'Esq., of the Mobile bar
FEDERAL REPORTER,
vol. 48.
vessel, and continued for some time after her arrival; and also that some time was lost by reason or storms that 'prevailed during the laying days of the vessel. . The question presented in this case,and the only renl issue raised in it, was considered and passed on in the case of Paterson v. Dakin, 31 Fed., Rep. 682. 'l'he facts of the two cases are about identical. I have seen no reason to change',the views expressed in Paterson v. Dakin, and I ,the. Qpinion in that case to sustain the reached by m(;} in this one,-that under the exceptions in the charter-party, and on the other proof in the case, the defendant is not liable for the demurrage claimed. The proctors' for libelants have referred to 'the case of Grant v. Coverdale, L. R. 9 App. Cas. 470, as holding a different view from that expressed in Paterson v. Dakin. I have carefully examined th(;} case of Grant v. Coverdale, and I think that it is clearly!listinguishable from the case at bar. In the one case the charter-party provides that "tin1,6 to ,commence from the vessel being ready to load and unload, and ten days oq,demurrage.qver,and abc;>ve the said lay-days at £40 a day, (except in case of h{\nds.striking wor,k or frosts or floods or any other unavoidable accidents preventing ,the loading, in which case owner to hayethe option of employing the steamer in SOme short voyage trade,)" etc., ThE'r,e the, exception is limite4 to accidents preventing the "loadipg,"-the actual putting on, board of. the very act of loading., As said .by a member of the court: "The exception applies only where. tQ6 aCQjdent and not where it prevents or transit or ofthe cargo ta .the place of loading." '),'here ,the ,on himself all.the risks consequent upon delay in transit. In q$se (the one now before the court) the charthat 27"working days are, to be, allowed in which to dehver cltrgo at the portofloading,which is understood to mean "actulll deliyery of cargo alQng-side;" and that in the computation of the allowed for delivering,the.l:argoshall be excluded any time lost by reaSon of drought, any . extraordinary occurrence· beyond the control of the The exception here applies where the accident or qextraordinary prevents the delivering the cargo.-where occurrence prevente or retards the transit or conveyance of the cargo to the: ,place of loading. I t is apparent that this exceptiqnwasput in the for benefit aud prqtection of the charterer, and that he taokon himself no risks consequent upon delay in transit or conveyance caused by drought. floods, storms,- or any extraordioary,occurrencebeyondhis control. In Hudson v. Ede, 8 & S. 631, "the charterer'Yasboulld to load in 30 days, cepted; Dnpube many miles above the,port though the port its.elf was free; it being to rely on for thll,t case the. court ,say that the ,exceptlOll in ,a wllerebya is allowed t9 charterer, but 8ssuch, applies where the ice not only renders access to the ship impracticable in the port itself, but blocks"up:i8 i ,riv.erbymeans of which alone the hi-