was a common form of bill of and proper for the goods inquestion. But the liability of the ship would be the same without any bill of lading. The original charterers undertook to transport these goods; this was done by the authority and consent of the ship owners, for such \Vas. the very object of the charter. The ship: is, ,therefore, answerable for any negligence that causes damage to the goods, and is aJ;l.Swerable to the shtpper, or to his vendee, upon the implied contract to transfer safely, whetnera bill oflading is issued or not. The Water Witch, 19 How. Pt. 241, affirmed 1 Black, 494; The Peytrma, 2 Curt. 21,27 j The T. A. Goddard,, 12 Fed. Rep. 184, and cases there cited. . Decree for the. libelants, with costs, and an order of reference to compute the damages, if not agreed upon.
SORENSEN
et al.
tl. KEYSER.
(oercuu
Oourt of Appeals, Fifth OirlJUit. June 20, 1899.) NQ.28.
Where a \lhip is chartered in Liverpool to carry a cargo of lumber from Ship 111land, and the charter party provides that "in the computation of cfays allowed- for . delivery should be excluded any time lost by reason ofdroughts, floods, and storms, or any other extraordinary occurrence, beyond the control of the charterer, " suoh exception does not apply to a drought existing at the time of the charter in the region of the Pascagoula river, and which prevented the cbarterer from obtaining the timber. but, which did not interfere with its delivery from Moss point, the usual place of preparing cargoes, and between which place and Ship island no drought could affect the delivery. 48 Fed. Rep. 117, reversed. ' Under the terms of the charter. demurrage was to be paid for each "working day beyond the days allowed for loading." Beld, that time lost by reason of storms before the beginning of the lay days, or after their expiration, could not be deducted in computing the demurrage.
2. SAHE-8TORMS.
8.
BAME-"WORltING DAYS" DEFINED.
The term "working days" in maritime affairs means a oalendar day on which the law permits work to be done. It excludes Sundays and legal holidays, but not stormy days.
Appeal from the District Court of the United States for the Southern Division of the Southern District of Mississippi. In Admiralty. Libel by Jacob E. Sorensen and others, owners of the bark Urania, W. S. Keyser, for demurrage. The libel was dismissed, (see 48 Fed. Rep. 117,) and the libelants appealed. The case was then heard on motion of appellee to be allowed to take testimony as to the meaning of certain words in the charter party, which motion was overruled. 51 Fed. Rep. 30. The case is now on final hearing. Reversed. John D. Rouse and Wm. Grant, for appellants. E. Hqward McCaleb and John O. Avery, for appellee.
164
FEDERAL REPORTER , vol. .52.
Before PARDEIl: and MCCORMICK, Circuit Judges, and LOCKE, District Judge. PARDEE, Circuit .Judge. On the 11th day of October, 1889, the Norwegianbark Urania, then lying in the port of Liverpool, was chartered by W. S. Keyser to take a cargo of pitch pine timber from Ship island, or Pensacbla, as ordered, to flom'S port in the United Kingdom of Great Britain, or the Continent. The: charter contained the usual general stipulations, and,. in addition, the following special clauses, which are the subject of dispute in this cause: (27) working day-sare to be allowed the said merchant in the cargo at the port of loading. Which is understood to mean actual delivery of cargo alongside,; aJ1d not to complete loading. In the computation of the lay days allowed for delivering the cargo shall be excluded any time lost by reason of drought, floods, storms, or any extraordinary occurrence beyond the control of the charterer. Demurrage to be paid for each working day. beyond the days allowed for loading, at £20 per day; and the charterer may keep the ship on demurrage 10 days." The ship arrived December 30, 1889, and wasordereLl to take cargo at Ship island, and was ready to load January 7, 1890, of which fact Keyser received due notice. Libe1an1;a claim that the 27 lay days expired February 12, 1890, at which date no cargo had been furnished. Delivery did not begin until the 17th'of the month, and was not completed until April 1, 1890. Forthese.47 days of wrongful detention the whjc4the charterer refused to pay, claimipg.\1lit, owing tQ.tbe prevalence (If ,8 drought which delayed him in lay days had. n.ot expired when the loading was Q6ir;l;pleted; As the master refused,:tQissue 11 bill of lading without notipg;t):terel:ln his for Keyser threatened to libel the for damages on account it was mutually agreed, as .a compromise, that themaster should issue a clear bill, but without his right to file a libel in'per8onam agaihst Keyser for the atnount claimed. ·This suit was 'aecordingly brought by the owners of the Urania, in which they claim the sum of $4,574.04. . It is admitted by defendlMltin his answer that the ship was ready to receive cargo January 7,1890, hut that none was furnished until February 11th, and that the delivery was not finished until March SOtho 4.8 excuse for thig delay he "That. at the time said vessel for cargo under the terms of. said <:hl,lrter. there was an unusual drought,. general and extensive, prevailing throughout the 'whole country from which timber is obtilined for the loading of ships at Ship island; Moss point, and other points In that Vicinity, ,which drought continued for a long while, and prevented this respondent from obtaini.ng cargo fOf! the loading of, sa1dvessel, notWithstanding he had made arrangements fOl;procuringcargo. fo,r her, and would have procured same in ample time to .paveloaded her within the period of twenty·"evelj days. but for said drougnt: And he further alleges that on the 10th, 11th; l:3th, and 14th of January. the 8th. 24th. 25th. and 27th of February, and on the 4th, 5th. 6th, 8th, 10th, 11th, 12th. 13th, 18th, 19th, 22d,and 31st days of March. 1890, (being in all twenty,dllysil.sLormsprevailed whicB rendered it impos-
SORENSEN .,. KEYSER.
165
Bible for timber to be delivered to said vessel, excepting at great I'lskand hazard. And tbat, excluding the time lost by reason of said drought and storms. he delivered tbe cargo to said vessel witbin the period required by the terms of said charter."
The judge of the district court being of the opinion that the existence of the drought had been established, and that it excused defendant's delay in delivering cargo, dismissed the libel. While defendant claims in his answer that drought prevented him from obtaining timber for cargo, he does not allege, nor does it appear in proof, that on any of the days specified storms in any manner interfered with the delivery of timber to the vessel, nor that any time waR actually lost from that cause. The only proof as to storms is fonnd in the deposition of William Rudolph, who names January 10th, 11th, 13th, and 14th. February 8th, and March 4th, 5th, 6th, 8th, 10th, 11th, 12th, 13th, 17th, 19th, 21st, 22d, 24th, 26th, and 27th, in all 20 days, as too stormy to permit timber being towed. His observations were made at Moss point, some 6 miles inland, and on cross-examination he admits he did not know the velocity of the wind nor its direction on any of the days enumerated, nor the character of the weather, except that it was stormy. Notwithstanding this alleged state of the elements during this period, he testifies that timber was actually sent to the Urania and other vessels at Ship island on the following of the above days: January 14th, March 4th, 8th, 11th, 12th, 13th, 19th. 21st, 22d, 24th, and 26th, in all 11 days out of the20 claimed to have been stormy. It does not appear that defendant was ready to deliver cargo on any of the other 9 days. . The charter gave the defendant 27 working days only, within which to deliver his cargo. The term "working day" means, in maritime affairs, running or calendar days on which the law permits work to be done. It excludes Sundays and legal holidays,but not stormy days. Pedersen v.Eugster, 14 Fed. Rep. 422; The Cyprus, 20 Fed. Rep. 144; The OIuj, 19 Fed. Rep. 459. It is to be observed also in this connection that, under the terIns of the charter, only time lost by drought and storms during the lay days is required to be excluded in the computation. That time lost after the expiration of the lay days was to be paid for, without regard to the happening of any unforeseen event, is evidenced from the express stipulation written in the charter immediately after the drought and storm clause, which provides that demurrage shall be paid for each working day beyond the days allowed for loading. Time lost from these causes before the beginning of the lay days, or after their expiration, is not to be deducted in computing the demurrnge, even if the term "working days" does not exclude all such time. During the lay days proper, January 10th, 11th, 13th, and 14th, and February 8th were stormy, according to the evidence above referred to, which, while not as satisfactory as could be wished, is not contradicted. The evidence does show that on January 14th some timber was delivered by Keyser to another ship, bilt thatrnay have been at a great risk,---a risk the appellee was not pelled to take in the case of the Urania. On the whole; we are inclined
vol. 52. computing the lay days undei' the charter in this ease; Januafyl0'th, 11th, 13th,aild14th, andFElbruary 8th should be 'excluded.':>'::':' : ," ' ,',: , ' The case shows that defendant lost the time which caused the delay in delivering cargo by a droughtwbichoccurred prior to the beginning of the lay days,alld even that charter, and which affected his ability to obtain the required amount of timber to load all the ships he had in the market at Moss point, or in the interior couo4'y. He does not claim ,in his answer that the drought, prevented the,dE1livery of the timber from Moss point, or any other port, to the vessel at Ship island; but says that it prevented him from obtaining timber within the stipulated lay days. He was engaged in the business of buying and exporting timber. having an office at Pensacola and Moss point. Having no stock of timber of his own, stored anywhere, arrangements we),'e made d\1ring the aummer and fall of. 1889 to procure timber from mill and lqg men, to meet the requirements of his trade; ,Contracts were made Rsearly as September for a large amount of timber, with parties whose business it was to get out logs in the intepor country along the upper tributaries of the Pascagoula river. These contracts werE) in form exec\1tory agreements in which the contractors ,agreed to cut and deliver into the booms of defendant at Moss point certain round and hewn pitch 'pine logs as soon as watur will permit, not later than July 1, 1890; the timber to be paid for when inspected and measured. But such contracts vested no present title in Keyser to any particular timber, aud the contractors were under no obligation to deliver insufficient time to load the libelants' vessel. Defendallt h,imself knew very time he chartered the Urania that his supply of timber from these sources was necessarily uncertain, as he was then aware that a drought had prevailed throughout that whole country since the July previous. 'After the contract for timber had been made, RUdolph, his agent, went into the interior about the lst of October, to look after defendaIilt's interests, and he then found the water in the tributaries of the Pascagoula so low that the logs were stranded, and could not be floated out, Knowing all these facts, defendant chartered the Urania and a number of other vessels, and undertook to load The master of the Urania, for all that appears, was in ignorance of the situation, and cannot be supposed to have contracted with reference to a cargo of timber to be procured in the particular manner and from the special source intended by Keyser. The charter is silent on this point, as it does not provide from what source and in what manuer cargo was to be obtained for the vessel. Presumably the execution of the charter in contemplation Qitbe parties was to be governed by the custom of the port of loading. But the answer of the defendant does not aver what that custom is. From anything that appears in the pleadings, cargo was to be deliv:ered, from any port in the Gulf of Mexico. The evidence, on this point simply shows that Keyser intended to load with logs out of his booms at Moss point after they had been delivered to him there.
BoItENIEN
V. KEYSER.
167
The contracts above referred. to called for about 6,000 pie(les of hewn timber and 5,000 roundlogs;"to be cut and:delivered out of the upper tributaries of the PasqagQula. In addition to this, the Wolf River Manufacturing Companyagre'ed to sell 4,500 pieces of sawed timber; and the L. N. Danzler Lumber Company and Howe & Griffin, who had Moss point, c.ontracted to sell 14,000 pieces. The Wolf River Matiufacturing Company never delivered'any logs,and the other':parties only ','l"'art of those contracted for. doubt, the drought was a 'cause failure. these logs' were to have been deHvered in defendant's boom, where they were to be sort'ed, put up .in rafts, and towed to the vessel at Ship island. We take it, tberefore,for the purposes of this case, that cargo for vessels loading at Ship island -is customarily gathered together and stored at Moss point. Testifying on this point, F. H. Wilson, a witness for defendant, says that vessels at Ship island draw their cargoes from Mossppint, andthat,Mos,s point is dependent on the I>ascagoula riv,er {or its supply of timber.. If defendant had had sufficient timber at Moss point, there would have been no difficulty in delivering it to the vessel at Ship island" so far as droughts were concerned. These fads make a case similar to that of The decided at the first session (If this court, reported in 2 tLB. App. 83, 1 C. C: A. 174, 49 Feel. Rep. 76. In that case,as in this, the charterers contracted to supply a,cargo of timber at Ship island under a containing a clause excluding from the computation of lay days. at port of loading "any time lost by reason of quarantine, drought, flood, storms, strikes, fire, or any extraordinary occurrence beyond the control of the shippers," and the chitrterers contended in that case that they were prevented from obtaining a supply of thriber, under contracts !\imilar to this involved here, by the same drought. But this court decided, in a carefully prepared opinion delivered by Judge LoCKE, reviewing the case on principle and on authority, that the exclusion claimed could not apply to time lost by the charterers in failing to procure and have ready at the usual place of storage a cargo of timber on account of a drought which was prevailing before the charter of the ship, and which affected the rivers flowing through the country from which cargoes are ordinarily procured, but did not affect in any way the delivery of cargoes from the place of storage to the ship. After reargument and Ie-examination, we adhere to the principles declared in the case of The India. It follows that the libelants in this case are entitled to recover demurrage at the rate stipulated in the charter for 42 days. It is therefore ordered that the decree of the district court appealed from be and the same is hereby reversed; that this cause be remanded to the said district court, with instructions to enter a decree in favor of libelants for the sum of $4,087.44, and costs, together with the costs of this appeal.
An
168
.FEDERAL REPORTER,. vol.
52.
SKA.NTZE et4Z. e. KEYSER. (Circuit CO'Urt of
Appeais, FlJ'th No.S7.
Circuit. June 20,1892.)
the United States Dlstrict Court for the Southern Division of District of Mississippi. Mmlrllity. Libel by Carl Al1:red Skantze and others, owners of the Nor· bark Arab Steed,aga.1nst W. S. Keyser, for demurrage.' Libel dism188ed. 'Libelants appeal,' Reversed. J.D.llouse and Wm. hant, for appellants. E. H. McOaleb and John O. A.1l811l,.for appellee. Befol'!! PA.RDEE and ModoRMIOK,Circuit Judges, and LooKE, District Judge. PARDEE, Circuit Judge. On the .25th day of October, 1889. the N ol'Wegiull bark Arab Sleed, then lyirif'at Buenos Ayres, was chartered by W. S. Keyser, of, Pensacola, to take a cargo of sawn pitch pine timber 01' boards or plank to any port in the United Kingdom of 'Great Britain. The charter contained the usual general clauses, and, in addition, the following special stipulations, which. al'il the in .this case: "Seventeen working days are allowed the said merchants in to deliver the carg9 at port of load· which is understood to mean, ·actual delivery of cargo alongside, I and not to complete loading. IntbecolilJiutati9n of the days allowed for delivering the cargo shall be excluded al1y time lost by reason of drought, 60ods, st{jrrns, or any extraordinary occurrence beyond the control of the charterers. Demurrage to be paid for each working day beyond the days allowed for load· may keep the ship .on demurrage ten ing. at £9 per day, alld ,the tM arrived at Ship island January 6,1890, days," The libel avers and. ,Wl1s ready to receive cargo .01'1 the 10th, and that the lay days expired 1st, which is admitted by the answer. It is also averred in the libel and admitted by the answer·that delivery of cargo did not commence until M'atch3, 1890, and Was not, completed until the 27th. .As £>xcuse for lh'3 delay.' defendant alleges "that it is expressly stipulated and agreed in tbe charter tbatln the computation of days allowed fOl' cargo sball any time lost by, reason of drought, storms, floods, or any extraor· be occurrence beyond the control of the charterers. And respondent liHeRes that, at the time said vessel reported for cargo undedhe terms of said cliarter party, there was.ah'unllsual dl'ought,general and extensive, prevail· ingthrougbout the whole section of the country from whicb timber is obtained for the loading of ships at Ship island, Moss point, and other points that Vicinity, which drought continued a long while, and prevented this re.apondent from obtaining cargo for tPf:l loading 9f said vessel, notwitbstanding he had made arrangements for procuring cargo for her, and would have same for her in ample time to have delivered 'it to her within the period of seventeen working days, but for said drougbt. And this defendant furthe'ralleges th&.t, on various days during the time the said vessel remained island in readhlessfor cargQ, storms prevailed, which rendered it 1mp()ssible for timber to be dllli.vered .to her except at great risk and hazard. And ... ... ... that, excluding the time lost by reason of said drought and storms, he delivered the cargo to said vessel within the period required by the terms of said charter." It will be seen tbat the case is very similar to that of Sorensen v. Keyser, 52 Fed. Rep. 163, (just decided.) The differences are that a lesser number of