FEDERAL REPORTER,
vol. 49.
oility, and the salability of the cargo, greatly to their damage. To this the owners of the vessel, appellants, filed a cross-libel, alleging that the lay-days;tbei8 weather working ilays by the charter, expired on the 12th of February, and that their vessel had been wrongfully detained"and thl1t there wasdue them for 10 days'demurr,age and 8 days' detention the amount of $1,162. In answer to this cross-libel, apthat "in the computation of lay-days there shall ,be expellees clud,ed anytime lost by reason of quarantine, drought, floods, storms, strikes, fire, or any extraordinary occurrences beyond the control of shippers; anti that, owing to droughts, storms,and floods, they were unable to have their delivered at Moss Point, the port where or from which'the,cargo ,is, ordinarily-delivered to Ship island, and that, owing to which were wholly beyond their control, they were excused, from, sooner delivering said cargo." They also denied that. owing to: the condition of the weather from the 16th January to the 6th March, the 18 weather working days had expired at the time the delivery of the. was ,Upon these pleadings, the case being jutigmentwlls found lor libelants for c:ll1e cent and costs, and the claimants'; was dismissed, with costs, from which claim' ants have ,ltppealed. other questions arose in the court Besides the'question of mincit claims of the master of the vessel, for an ,ns.'quarahtine fees; for damage for brtmking a ]{nee of the amount vessel; "nd for,a difiEmmce iil exchangej but none of these have been assigned i.n they will receive no There alJpears to be muph uncertainty in thea])egations of the libelants both in the libel and the itllswertothe croSs-libel as to what condition offacts was to be relied uponj whether drollghts, storms. or floods; and whether, according to the allegations of the libel, it was to be uQderstootl that the cargo was collected at Moss Point. and they were prevented from delivering it, or, according w' the answer to the cross-,libel. they were unable to collect it there; taken in connection with the evhlence, there are plainly presented twv questions forexaminaticm: Whether there were more than 18 weather' working days the time when the lay-days comm,enced to tun (three clellr working days alter notke by the master) and the final deliiver;v or the and, if so, whether such time should be excluded frQrn.,tpe time subject to demurrage under the eighth article of charter-party. The term "workin" day" .has so entered into commercial language and feceived judicial construction, that its force and meaning is beyond a ordolilbi. It has ceased to be an ambiguous phraRPj but when, the.expression is further mo(1ified or limitt>d by the word we tind J.he newcotnbination not so general in its use or so well eStllblished, in its forcejbut .its c.onstru;<:tion, and' the 'manner aud connection of iti; use, can but one.mellning, namely, a dllY. otherwise: /l. working weathet;wQt11d, reasonably permit the carrying on of the' day, when work contempla,ted.,' In :th;s kind of work w8$' towing ol'Jtunbel' lighters and delivering it along-side:
THE INDIA.
79
,)fvessel. This is an exceptive term, withdrawing from ordinary working days certain days in which it is claimed that one is onable to work, and the of proof iSlupon him who alleges the' exception. The presumption is that every working day is a day 'in which work maybe done, and he who alleges to the contrary takes the affirmative. UpOli the question of the number of weather working days which elapsed between the master's I10tice and the completion of loading, Several witnesses have testified thE" bad cha.racter of the weather during :the months of January, February, and March, but their tflsti.. monyis'so uncertain and conflicting that it cannot be rl:;lied upon in determining any question oJ any particular day. Jackson, employed at 'One of. the mills, says the weather for those months "was dull, heavy, and 'a littlerainYi windy alsO, and foggy." Chambers, foreman of stevedares" thought the weather "unusually severe." 'Danzler, a lumber merchant, states generally that "it was very badiweather." The captain l'eported"badweather so thick'andfQggy they could not dQ anything." much wind when there is a fog." Howze; also a lumbEl'r merchant, says: "My recollection is the weather was rainy and foggy:. I don't remember anything about high winds." "As'fortowing timber, foggy weather is better than an-yother." Henrin, manager of the' Pas-eagollia Lumber Company, says: "It WllS blowing, rainy, and foggy; a g,reatdeal of fug." , There were 5 days marked ;'stormy" by the records of the signal office ,of Mobile, and 7 upon which the wind reached at some time during the day 20 miles an hour. There were 48 days ftom the of the lay-'days: until the vessel had completed loading, and irmay have been thatthe weather was generally bad during the tirne,and 'yet there have been 18 or more days in which work may have been carried on; 'and the 'Only way to arrive at a satisfactorycondusion is to examine the testi'many touching each individual day in question. The first question is, when did the lay-days begin? 'fhe charter-party provided: that the master; when his vessel was tully ready,should give three clear working -days' notice. This notice cannot be considered as given until His shown to have reached the shipper. This the evidence shows was at9 o'clock, forenoon of Friday, the 16th; February. It was not received so ,that Friday could be considered a clear working day,and 'Saturday, Monday, :and Tuesday must be allowed, and the lay-oays considered to have be.gun on Wednesday ,the 21st. This is the first day in question, the ml\ster of the bark claiming, it a weather working day, and libelants not :admitting it. Martin, who is engaged in the lumber business at Mobile, Jlnd who had kept a record and presented an exhibit of the weather working days for the entire time in question, says was a heavy rain;" Donald, in his diary, says it was "a wet day; strong S. W. wind. No lay-day." Rudolph; the managing man for Keyser & Co., a lumber ,shipping firm at Moss P0int,the nearest point to where the bark was and who had kept a regular record of the weather working daYS, .which he presented ,does.not call it a weather working day. The signal iService record at Mobilehssitmarked I'stormy j" llnd;shows that the south-
80
west wind reached 30 miles an hour. This certainly cannot be counted as a weather working day. Carefully eJl:amining the several days in dispute claimed by the claimants, and not allowed by libelants, in the light of the testimony of Martin's, RUdolph's; and the signal service records, libelant Donald's diary, and the bark's log-book, we have.arrived at the conclusion of fact that the 21st, 28th, 29th January, and the 3d of February, were not weather working days, and the 2d,6th, 7th, 12th, 21st, 23d, 24th, and 25th of February, not allowed by libelants, were weather working days, and should; be allowed as such. These days, together with those allowed by libelants or classed as good in Donald's diary, make 22 weatherworkirig day8to this time, deducting from which the 18 lay-days allowed, leaves 4 dn-ys for which demurrage should be allowed. It appears that the cargo,'excepting. the deck-]oad,was delivered along-side the vessel February. 25th, at which time. it is found. that there had been 22 weather working days. The charter-party. provides that this time allowed for delivering cargo "shall mean actnal delivering of the cargo along-side, and Inot .completion of loading." This would therefore complete toe furnishing of cargo, all except the deck-load, as far as the shippers could beheld responsihle. The language :of the charter-party also shows conclusively. that it was the ship's duty to take cargo on board, one proviscars sent ion of it being "the vessel shall discharge barges without unreasonable detention-." The shippers, having furnished-on the 25th all the cargo so far called for, were no longer chargeable with demurrage until notified by the master that a deck-load would be required. The deck-load was only. to be furnished if required by the master, and the shippers were entitled to a notice of three clear working this. This notice was received by the shippers at 2 o'clock Saturciay, February 28th. The three clear working days would be Monday,.;fuesoay, and Wednesday of the next week, or the 2d,3d, and 4th of;March. The deck-load was furnished on the 6th. There being no question but what the 5th and 6th were weather working days, they must be held to be subject to demurrage, which makes six days in all for :whioh .the vessel is entitled. This us to the second question in the ease,-are these six days to be excluded in the computation of lay-days as time lost by reason of quarantine, drought, flood, storms, strikes, or fire, under the exceptions of the eighth article of the charter-party? The evidence shows that the libelants had no cargo collected at Moss Point, but that they had to procure it from the lumbermen as they could. There have been no allegations or evidence of quarantine, drought, flood. strikes, fire, or any extrao.l'dinary occurrence happening since the computation of lay-days commenced, and the days of storms have already been excluded in consideringthe weather working days; but it is claimed that this clause applies, not only to the time lost during the running of the lay-days, but to previous droughts, which had for months before caused low water in the streams from which the logs were usually received, and had therefore produced a scarcity inthe nlarket) So that libelants lost time in pre-
81
curing cargoes as required. Such construction of the terms of the charter-party would result in so different a relation between the shippers and ship-owners, in regard to the duties of the former in supplying cargoes, from what has been fully established by law and in all commercial transactions touching the matter, that it cannot be accepted without the most conclusive and convincing argument. First, let us consider the language of the contract. The sixth and eighth llrticles are to be read together. "Eighteen weather working days shall be allowed the shipper to deliver the cargo;" and "in the computation oflay-daysshall be excluded any time lost by reason of drought," ete.Emall this be read that anytime that may have been previously lost, or that any,time lost by any drought which may have previously existed, shall be computed and excluded from the running days? or -shall the words" to procure and" be interpolated before the" to deliver?" The term used, "excluded," instead of what might have been used, "deducted/' does not favor such construction. Is' there anything that requires it,? The ease of Paterson v. Dalcin, 31 Fed. Rep. 682, isreHed upon 'oy libelants in the position taken by them. In this case the question appears to have been carefully considered, and the learned judge to have; arrived at the conclusions therein stated upon two grounds: PirBt, a desire to give force to every term used; and, secondly, to construe the contract according to the peculiar usages of the port of loading, as they in that case; It is claimed that unless the term"drought." as here used, can he applied to droughts existing throughout the states from which lumber is supplied, causing the low water which prevents obtaining logs, it can have no force or operation in this contract, as no drought could affect the waters over which the delivery of cargo between Moss Point and Ship island was made. This may be trtle, that no drought could affect the delivery of cargoes at Moss Point any more than quarantine, fire, or strikes have affected the case; but it is not shown that the ship-.owners were aware of that fact at the time of making the charter. We recognize the general principle that, where a construction may be given a contract which will give force to every term and provision of it, it should be done; but such construction must be reasonable, just, and consistent with well-established law and the apparent intention of the parties. In construing charter-parties, which are almost always made upon prepared and printed forms, and into which terms and conditions are introduced to cover every case which miRht arise, it is impossible to give force and operation to every term so used in every case, and come within this fIlleof construction. The intention of the parties is the principal point to be aimed at, and it is to be looked for as well in the surrounding circumstances and usage of general and local trade as in the language. It appears by the allegations of both the libel and nnswer to the crvss-libel that it was the custom and usage of the port to have timber. cargoes collected and prepared at Moss Point, where, as the libel asserts, libelants had, "under the custom of the port, collected and prepared the said cargo," and in the answer to the cross-libel they "were unable to hav:e their timber delivered at Moss Point, the port where or v.49l!'.no.1--6 -
82
FEDERAL, REPORTER,
from whiehcargo.is ordinarily delivered to Ship. island."Tbis being tbecustorriarypoint at which to have cargoes collected and prepared, can it be held; for thepurpo$e'ofgiving force and operation to the term "droughts/that the forests of tbeback country are to be considered as thes1ore,;.honses of the cargoes, the points from which the delivery gins, and the owner to assume the risks and uncertainties of getting them to' market? i It is urged in behalf of libelants that .it was well known that the timber of the contemplated cargoes came from the head·waters of the rivers,aoothatfrequentlydroughts prevented getting it down the streams tothe,miJls, where it waspr.eparfldJorshipment,:and that itshould be presumed made with that knowledge, and the drdughtclaoseshould therefore be held.toapply. We do not think so. SUch construction would completely revolutionize the law of shippers and make the ship-owner responsible for what was plainly the dtity·ofithe shipper; excIls6theshipperofgrainfor the detention of &' v.eBselat New. Orleans on account of seasons of drought' on the wheat-tieldsof. the north-west,and: the shipper of. coal from Philadelphia for strikes months before in the coal mines of Pennsylvania of which the shipper had knowledge at the time of chartering a vessel in Uverpool. . Itoa11not be. assumed·that the ship,.owner assumed such riskS' and responsibility without ,the most direct and ,tinequivocallanguage in the In: the case of Hu.dson v. .&ie, L. R. 2 Q. B. 566, theshipper:was excused only because, according lito the custom of the port, of .Suliriam, the grainwasatored higher up the river at Galatz, and on aecount :of· ice it ,be brought down; but in this case the be the ather way,-that cargoes are to be collected nnd .at Moss Point. · ..' :In' Gra'll,tv. Coverdale, L.R.9 App. Cas. 470, cited by appellants, it is· said: .'< "There as to the particular place from which the cargo was to come. as tQ ill flnner in· )lIhich it was to be sup.was tq be brouglJtto the place of and that. therefore, It cpuldnot be slJpposed, tbe, parties were COntI:3cting about any. such .thil1<g:" "tt can'not be deniljiithat unlessthosewol'ds of exceplion. accordJilg to their proper :construction:; take this case which bas happpned out of the !demurrage clause, the mere farcltof frost. or any other thing. having impeded thei :t>erformance of that which. ,the chartel'er. and Dpt ·the ship-owner, is ,bpund to perform. Will Dot abllolve him from the consequences oC keeping the llhjp too long." . It is true thann that <case the term "loading ", was directly used, but in the present case language of the section relied . upon would,. we consider,as strongly confine the loss to the exclusion of those days 'which were lostiri delivering, not in procuring. In that case the loading was prevenfud because the ice prevented bringing the iron through 'iae canal to, the dock, but the: cause was considered.too remote to excuse the shipper. In this case the same reason holds with more force. The libelants themselves show that the custom of the port is that cargoes are prepared at Moss Point, between which place and Ship
· THE .INDIA.
83
island no drought can affect communication. Can it be reasonably preaware of the fact sumed that in making snch charter the owners that the term could have no force unless it was extended to the woods of Louisiana, Alabama, or Mississippi, and intended. to take the chances of a drought there ? We are clearly of the opinion that no such intention can be presumed from the language of the contract; general custom and usage is directly opposed to such construction; and we find nothing in local custom or usage to demand it. Thjs precludes the examination further as to whether it has been proven that it was the drought that caused any loss of time to the shippers in this particular case. The charterers (the libelants) were loading some 10 vessels at Mobile and several others at Ship island. It appears that they were loading ships at Mobile, Pensacola, Horn island, and Ship islandjthat from Januar,}" to the time of taking the testimony they had loaded at Ship island alone some eight or nine, taking between five and six million superficial feet of lumberj that as a rule they kept a very large stock in the booms at Mobile; that the Pascagoula Lumber Company had in their booms on the 1st of January agood many more than 5,000 10gs,-the manager would not say quite 10,000, but a good many over 5,000. Was it a scarcity of timber or an excess of vessels? Was it t1:ledrought and low streams or scarcity of lumber and lumbermen in the forests to supply such an active demand? None of these things appear, and it certainly clJ.nnot be presumed that the ship-owner contracted against all of these exigencies. We do not consider that the shipper was excused for the delay of the vessel on account of any of the exceptions of the eighth article. and find, therefore, that, at the time of refnsal of the master to sign clear bills of lading as demanded of hi tn, there was an amount of demurrage duahim which be had a right to demand should be settled at the place of load.ing, or for which he had a lien upon the cargo, and he was fully justified in such refusal, and the libel should be dismissed with costs. We further find that, under the cross-libel. the libelants, Donald Bros. & Co., as cha.rterers of the bark India, are indebted to the owners in" demurrage for 6 days, or £79 12s., at the rate of $4.83l, or $384.87, for which judgment would follow. with costs; and it is ordered that the cause be'reinanded by said district court, with instructions to dismiss said libel, with costs, and enter judgment for the claimauts on the crosslibel for $384.87, and costs, togt!ther with the costs of this appeal.
I'EDERAL REPORTER,
THE VmGINIA and THE LoUISE. , (DlBtrlct Oourt, D.
May 8, 1891.)
L
OoLLI&IOll' BBTWEEN STBAMBRs-SIGNALB-FAtLURE TO REVERSE.
A collision happened in the night-time at the junction of the Ft. McHenry and Brewerton channeis of the Patapsco river between two side-wheel passenger steamers, the Virginia and the Louise. The Louise, the incoming steamer, at a proper distance signaled to the by two blasts that she desired to take the southerlyside of the channel, bemg the side which was on her port. The signal was answeted by a steam-tug, which was between her and the Virginia. Without get,ting, any reply from the Virginia, the Louise put her helm to starboard, and con· tinued, at her full speed of 11 miles an hour, until she was about a quarter of a mile from Virginia, when she again gave a signal of two blasts. The Virginia balng,then over on the southerly edge of the channel with her wheel tQ starboard, and the ch,anbel being b:r. a schooner, the Virginia was unable to ,avoid Louise, ilond the:}' collIded just at the bend of the channel. 'HeZa, tllat the LOUIse was; in f.al11t (1) lD putting her helm to starboard, and taking the side of the channel which was on her port, without g-ettjng an assenting signal from' the Virginia; (2) alsoln not obeying the rule which required her, having the Virginia on her starboard, side, to keep out Of the Virginia's way; (3) also because, when. the risk of collision was apparent; the Louise did not stop and reverse her engines, but merely slowed. Ol'·Sl'EED-M1JT'l!ALFAULT.
ll.
TheVirginia, the outgoing 'steamer, heard the signal of two blasts given by the Louise, 'and when it was aniswe'red by the tug supposed it was intended for the tug. She continued her full speed of 14 Iniles an hour, aud ported her helm to avoid the SChooner, and went over to southerly edge of the channel; but she did not make out the side lights of the Louise, nOr did she signal herself until the Louise came -out frOm behind the schooner, and signaled a second time When the steamers were not over a quarter of a mile apart. Then the Virginia blew danger signals, and reversed her engines, and did all she could to avoid the collision. HeZa, as to the Virginia, that, as she was nearing a bend of the channel obstructed by the schooner, ano. had not made out the side lights of the Louise, she was in fault in maintaining such a high rate of speed in a place of such danger, under such uncerwith regard to t):le Louise's course, without having a distinct,understanding by interphange of signalS before the steamers had approached'so near to each other. Experience has demonstrated that the strict observance of every precaution pra&cI1bedby IItatutory regulations an,d by good seamanship is necessary for the safe navigation 'of steamers at high speed in the ohannels of the Patapscoriver. BeZel., that both steamers were in fault. ' (SyZZalnt8' by" t1l.e Oourt.)
In
Libel for damag:es by collision between steamers.
MiBter, fOl"'petitioners.
Th0nia8W.HaU andH. Y.D. Johns, for the Louise. John H. TIwm.as and Geurge LiqJtrTh0ma8, for the Virginia. Archibald Sterling, Thomd8 G. Hayea, Robert H. Smiih, and Beverly W.
MORRIS, District Judge. About 8 o'clock on the evening of July 28, 1890, the steamer Virginia and the steamer Louise, both side-wheel passenger steamers, came into collision in the Patapsco river, Dear Ft. Carroll, about six miles from Baltimore. The Virginia was on her regular trip from Baltimore to Norfolk, and received considerable damage from the breaking of her stem, which was twisted to starboard, but neither her passengers Dor cargo were injured. The Louise was a large excursion steam-boat, returning to the city from Tolchester Beach, with 1,500 excursionists on board. She was cut into on her starboard side, about 30 feet from her stern, the bow of the Virginia penetrating through her