658
FEDJl:RAL REPORTER,vol.
49.
167; Hall v. Stevens, 116 N. Y. 206, 22 N.E. Rep. 374. lncourtsof admiralty the law has been the same,,'sincethe Cbse of llarqueOh'U8an, 2 Story, 455, 466-470, which in many respects is like the present case. See; also, The CMlinBJord,84 Fed. Rep. 399; The ,Gffn.: Meade,20 Fed. Rep. 923. Decree for the libelant, with a reference to 'ascertain the amount due, if notagteed upon.
THE SCANDINAVIA. CoMl>AGNIE])U BOLlCO ,.THE SCANDINAVI,&..
MEEK 11. CARGO OF
Tu£
SCANDINAVIAeC
aI.
(DlBtrict Cowrt. N. D. aaWornw. FebrUary 2S, 1898.) ,1. $BJPPI1'f& -,DI80RARGB OJ' CARGO - Rlll'tlSALBT CONSIGNB. TOll.lIc.xVll- DU'l"I' 01' SHIP." . '... ,
Wb8te a consignee refuses to receive'C8.rgo in accordance'with the provisions of the the l!hip-JIl.8olIter is au.thorized to land an4,'tQJ'(l it at the nea,rest proPer ",nd, convenient port, having reference to bis own convenience and the apparent blist interests of its OWner, and always acting prudently and in good faith.
2. SAM1Il_LIGHTERS DESTROYED BySTOIW-STA'rEMENT OJ', CASE; ,
r,
The Ship S.. c)J.arter provided that her cargo shf>\llc1. ,be delivered at the shlp's'side lay in the roadstead of Santa Rosalia, and had discharged only about one·half 'Of hel.' cargo when' her lay days9xpired, and the :following day the light· ers of were destroyed by The onlymll tJ;1oq.,of disch",rging was into lighters. The place was an open dangerous in' the event of bad weatlier.·dA week later, despite the ne6essary protests, the consignee had done nothing,and, stilll'efUl/ed to do the, balance of the oargo., .Db. that day, after asking the oonsignee to designate a port 'Whllre the balance of the:oar§;o oould be :disoharged, WbiOh the consignee refused to do, the ve&selsailed for t::lan Franolsco and andliheled tllecargofor , freight and demurrage. SeW, that under the' ciroumstanoosthe ship wall justified in taking, the cargo to lome 'place where it could be stored 'for the benefit of the oon· signee, subject,to the payment of freight and oharges. A vesSel took a cargo to Santa Rosalia; her ohartel.'providing that it wasta be disoharged along-llide "any oraft, steame!!J. or floating depot, pr,any Wharf or pier, where she can always safely lie afloat." 'J.'here is only an open roadstead at Santa Rosalia. The 'Cargo was not discharged within the lay days, partly because tbe buckets used by the ship, w . .e.re. insjlftic.ie,.n,talld. ,her SUPPlY. bf. :m,en short, an,d partlY. .. because the lighters furnished by the consignee, and which,were the onll means of discharging, were inadequate for the purpose.' HelcZ,' that neither ship nor oonsignee should be allowed demurrage such periOd. ,", "
8. Dl!lMUBRAGlIl-MuTtlAL NEGLEOT. r"
.In Admiralty. Libel for damages for non-deliver,y:of cargo. Crosslibel for non-reception of cargo and non-payment of freighta.nd demur.. rnge. Page &: EeUs, for ,libelant. E. W. McGraw, for claimant.
Ross, District Judge. These are cross-libels; the Compagnie du Boleo ;claiming demurrage and, damages Jornon-delivel'Yof cargo; and owner oftpe ship, damages for non-reception of cargo and non-payment
"
THE BCANDINAVtA.
659
offreight and demurrage. The Scandinavia was chartered by the company in England to carry a cargo of about 600 tons of coke from Cardiff, Wales, to Santa Rosalia, Lower California, and there deliver the same to the agents of the company "along-side any craft, steamer, or floating depot, or any wharf or pier, where she can always safely lie afloat, as may be directed by the frpighter's agents, to whom notice is to be given of the vessel's readiness to discharge." The cargo in fact consisted of 602 tons. The charter-party contained the following, among other. provisions: "(I) All noUces required to be given by the charter-party shall be in writing. and time shall not commence to count until twentj'-four hours after delivery. (2) The cargo to. be discharged at the rate of not less than 80 tons per working day, weather permitting; time to commence when the vessel has been. reported at the custom-house. and bas given notice of her readiness to be discharged. (3) The act of God, ... III ... bad weather. '" ... ... .lJ.1l unavoidable accidents or hindrances in procuring. loading, discharging the cargo. ... ... ... always excepted. (4) Demurrage over and above the said ]aymg days at fifteen shillings per like hour." The ship arriveqat Santa Rosalia on Sunclay, January 25, 1891. The next morning, Monday, her master went ashore, entered the ship at the custom-house, and about noon of the same day notified the of his readiness to discharge the cargo. The proof shows that Santa Rosaliajs a small, out-of-the-way place, the principal business of which is that of the Compagnie du Boleo,-a company engaged in mining cop" per. All of the cargoes consigned to the place are consigned to that company. . There is no harbor there, but an open roadstead, in which vessels are subject to much danger in case of bad weather. At one time there was a wharf there, at which the cargoes were discharged; but in February, 1890, before the making of the charter-party in question, the wharf was destroyed. After the making of this charter-party, and before the arrival of the Scandinavia at Santa Rosalia, the Compagnie du Boleo provided a number of small lighters, constructed of iron, with water-tight compartments. and containing two rows of four buckets each, into which to put the cargoes to be discharged. These lighters were of the capacity of from. three and one-half to four tons of coke each. They were too small to admit of it being sent from the Flhip into them through chutes, so that the only safe method was to lower it into the lighters by means of the baskets or buckets with which it was taken from the hold of the ship; and that method was pursued in this instance. The ship commenced discharging on the 27th of January. The case shows that the respecth'e parties agreed that the lay days expired with Saturday, Feb· ruary 7th. After that each party commenced claiming demurrage of the other. When the lay days expired, less than half of the cargo htld been discharged;. there st.ill being in the ship 332 500-2240 tons. Sunday, the 8th of February, the owner of the ship arrived from Guaymas, and on the same day a storm arose, which became so violent by Monday that a numher of the lighters were sUI\k, and ther.emaining ones beached and dlllllaged. With Tuesday, l!'ebruary 10th, commenced complaints by both plU1tes;.t:lach claiming that the other was and had. been at fault,
660
J'EDER4cL REPORTER,
vol. 49.
demurrage, damages, etc. Prior to that time the only and complaint made was by the agent of the company to the master, that he was unnecessarily delaying the discharging, to which the latter responded that he was doing the best he could. This was during the lay days. Commencing with February 10th, and thereafter daily, to and includin<J; February 14th, the owner of the ship, through the master, demanded demurrage, and that the consignee provide means for discharging the balance of the cargo; the consignee responding that if the master had exercised proper diligence during the lay days the cargo would have been discharged during those days, and that, the storm having afterwards sunk some and disabled others of the lighters, the company could not for the time being furnish the means for further discharging,and could not say when it could do so. Commencing with February 10th, the consignee's agent also made daily demands on the ship for demurrage. This condition of affairs continued until the night of February 14th, at which time the ship left for San Francisco without being cleared; the customs officer at Santa Rosalia refusing to clear the ship until she had fully discharged her cargo. The departure of the ship was by the order of the owner; her master protesting against going, and entering his protest in the ship's log. Before leaving, the master, by direction of the owner, requested the consignee to designate a port at which the balance of the cargo should be discharged; but this the consignee refused to do. lt appears that Guaymas was the nearest port at which the cargo could have been discharged; but as the ship was short of coal, and it was . doubtful whether she could get any there, the owner concluded to go to San Francisco, which he did,being obliged to stop for coal atSan Diego, on the way. The evidence shows that the failure to discharge the cargo within the lay days was due partly to the fault of the ship, and partly to the fault of the consignee. In the first place, the baskets used by the ship in discharging were insufficient in size for the purpose. Their capacity was only about 150 pounds. In the second place, for three and a half of the lay days, the ship was derelict for lack of men. January 28th, 29th, and 30th, and February 2d, but'One hatch was used, for want ormen to work another. This was clearly the fault of the ship. On the other hand, the lighters furnished by the consignee were inadequate to the purpose. As that was the only means of discharging, the duty devolved upon the consignee to provide lighters of sufficient capacity to receive the cargo at the ship's side in the way such a cargo is usually discharged,-through chutes. The evidence, I think, shows that the cargo could and would have been discharged within the lay days, had the lighters been of sufficient capacity, notwithstandingthe factthat the baskets used by the ship were also insufficient in size, and notwithstanding the further fact that for three and a half of the lay days but one hatch was worked, for want of men.. But it is also true, I think, that the cargo could and would have been discparged within the lay days, by means of the lighters that were furnished by the consignee, had the ship llsedproper baskets and enough men to work two hatches. . The failure
,
THE SCANDINAVIA.
661
to discharge the cargo within the lay days being due in part to the fault of each party, neither, inmy opinion, should be allowed demurrage. . The lay days having expired, less than ·half of the cargo having been discharged, and the storm having abated, what, on February 10th, were the obligations and rights ofthe respective parties? Thattheobligation of the consignee to furnish proper and sufficient means for the reception of the Qargo at the ship's side continued, seems to me to be clear. The consignee was not relieved of that obligation by the fact that the discharge of the cargo was not completed within the lay days. The duty of delivering the cargo on shore did not, under the charter-party, devolve upon the ship. Her master, therefore, was not required to employ the canoes or dug-outs, referred to in the evidence, in which the coke might, at increased cost and delay, have been landed after having been put in sacks, which the ship did not, and was not required to, have. Those canoes Qr dug-outs, it seems from the evidence, were used by the Compagnie du Boleo for the purpose of discharging cargoes consigned to it in the illterval between the destruction of the wharf, in February, 1890, and the procuring of the iron lighters; and, if they could have been used at the time in question for the purpose of discharging the balance of the cargo of the Scandinavia, it was the dutY'olthe Compagnie dl:/. Boleo to have emploYt:ld them, an,d not the duty of the ship. No effort on the part of the consignee was made after the storm to provide the ship with the means to discharge the balance of h{1r cargo, upon which she had a lien for the balance of the freight. On the claim and d.emand of the consignee's agent, daily repeated, was that the should seek and employ such means. This conduct on the part of the con.signee, in view of'the fact, apparent from the evidence, that the Compagnie du Boleo dominated Santa Rosalia; that it was the owner as well of coal; and that as the consignee of the cargo; that the ship was the roadstead in which she lay was a dangerous place for her to stay,was equi valent to a refusal'to receive the balance of the cargo and to pay the balance of the freight. Under such circumstances, what was the ship to do? She could not be required to remain there forever. The consignee refused, after being requested to do so, to name a port to which the bal'ance of the cargo should be taken. Under these circum,stances, I think the master was justified in taking it to some place where it could be safely stored with a third party for the consignee, subject to the payment of the freip;ht and charges. Ordinarily, such place should be the place nearest to the POllt of destination, where the cargo could be so discharged and stored; but the circumstances of the case may be such .as to make that rule inapplicable. Here it appears that Guaymas was the nearest port to which the cargo could have been discharged and stored; but it also appears that the ship was short of Coal, and it was dou btful whether she could get a supply at that port. For aught that appears, the ship may not have been provided with means to pay the necessary cost of lighterage there. Nor was she required to be so provjded; for,under. the, charter-party, her cargo was stipulated to bedelivered at the ship's side, not on shore. The t1;uerule,it seems to me, is
662
FEDERALREl'ORT1l:R,
voL 49.
given in a. nbteby Judge SHIPMAN ·to the case of' Fox v.Holt, 4 Ben. 300,-that in· a.'caselike the present the master is authorized to land and store the cargo at the nellrest proper and convenieritport, having reference to his own convenience and the apparent bestinterests of the owner; always, of course, acting prudently and in good faith. The selection of San Francisco, where lighterage was not necessary, and where there was every facility for discharging and storing and selling the cargo, came, I think, within this rule, considering all of the facts and circumstances of the case. Upon the arrival of the ship there, the master could "have landed the balance of' the cargo, and placed it in charge of a. third person, and, if the freight money continued to be withheld, the owner of the vessel could have kept it in that condition, or libeled it, had it sold by a decree of the court, and thus obtained the freight money." Fox v. Holt, ld. 299. In this case, after the filing of -the libel and crosslibel, the balance of the cargo in question was sold under stipulation of the respective parties. Out of its value, I think, should be paid the balance of the freight earned under the charter-party,. together with freight on the 332 500-2240 tonS from Santa Rosalia to San Francisco, and the charges incident to the discharging at the latter port. These amounts must· be ascertained by proof before the commissioner. Should the freight and charges exceed the value of the coke at San Francisco, difference, and the owner of the ship will be entitled toa decree for to costs. A reference will be made to the commissioner for the purpose above indicated, and 'upon the coming in of his report a decree will be entered in aocol'dance with this
THE PROPELLER
AGNES 1.
GRACE. GRACBo
Tow-BoAT Co·. t1.THE AGNES I.
(DtBtri.ct Court. S. D. Georgia,.E. D. January 27, 1892.)
In Admiralty. Lib&l by the Propeller Tow-Boat Compauy against the schooner Agnes 1. Grace for salvage.