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-
THE MASCOTTE.
119
tended cargo cnn be conveyeato the port. Hv..lhon' v. Ede:. mpra, affirmed in L. R. 3 Q.B.41Z;·Eleven Ooal, 12 Fed. Rep. 185. As I am of opinion that the issue must be found for the defend· ant, there will· be an order entered dismissing the Ii bel at libelants' cost.
THE et L'
MASCOTTE."
Cu. v. THE
MASCOTTE, (two cases.)
(Dt6W'Wt qourt, So D. New Yor1G. ;' . 'UIider the ordiuary biUof ;lading, the burden ,being on the oarrlerto abow·tllat .. ;, to cargo ariaes from an e]tl)eptedperil,tl;le carrier is liable when he baa re. ceived cargo in good condition, and delivered it damaged, and is. unable to explain how the damage occurred.. ' , o " . '. ' '.' · Toa,cargoes to the "port of New York" are, by custom, dlscb,arged on the New York side ottbe Eaatriver; Ithaa also been customary, when there lit diftlculty. in prllCiuringa, berth in New York, for the ship ,to give notice tbereaf. to the conaignees o( the tea, that they may have,0Ilportun,ity of tb,e a berth in New York. The ship Mascotte, with tea,aIid other cargo. arnved III the port of New York and W&ll eotered,attbe cuatomTbOull6 at 10 O'clockMonday, and COuld have tHlpn after. Ath&J.(paat 1 ou Wednesday, no berthhaving been found' for b"r in New York by b:er agents, abe \Vaa sent to Brooklyn; two , ConSlgn86sof paMilJ:of tbe cargo of same tea ,assentingthereto.Sbortl,t "fterwal"ds bel' of a berth in New York. No notice of herinabilitY to find a hert.hin New York was given to the priIicipal consignees of the tea. Held., tbat the ship 8h041<\ bear the extra expense to tbe consignees of teaoaused. by transporting the cargo from Brooklyn to New York. The Port Ade).aide, 88 Fed. Rep. 158. · " ' , " ''" ' , DAHAGE.,
.. BAH'B-PLACB 011'
In Admiralty. Snit to recover for damage to cargo and extratapense caused by ship's docking in Brooklyn. Owen, Gray &: Sturges, for libelants. Convers &:Kirlin, for claimants. BROWN, J. 1. As respects the claim for damage to tea caused by oil, the bill of lading, 8S well the master's testimony, shows that the' chests wete received on board in good condition. Some of the chests 'on delivery were,beyond doubt,oil-stained and defaced. All that the claimants can do to exonerate the ship has doubUess been done; but, after all, the evidence shows nothing more than that they cannot explain' how the stains and defacing occurred. It negatives certain causes that might, under some circumstances; have produced the damage; but this is not, I think; suffiCient to release the ship from her legal obligation. The ship bas possession and control of the goods from the time they are delivere'dinto her custody.: If the goods are received in good condition, as this·bill of lading shows they were,sne warrants their delivery in like I
ReporWd by 'Edward
Esq., of the New York'bat·.