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
WOLD". KEYSER.
169
working days were allowed within which to load the vessel, a lesser rate of demurrage. and that the cargo to be furnished was sawn pitch pine timber. in which last respect the calle is still stronger than that of Sorensen v. Keyse1', as it is clear that the charterers had not only to procure the timber, and ha've the same floated to the place for storage. but the timber was additionally to be passed through the mills prior to shipment. From the demurrage days claimed, and ordinarily expiring on ]<'ebl'uary 1st, we deduct January 10th. 11th. 13th, and 14th as stormy days. leaving 36 days for which demurrage is due. at .£9 per day. For the reasons given in Sorensen v. Keyser, it is ordered -that the decree of the district court appealed from be and the same is hereby reversed; that this cause be remanded to the district court. with instructions to enter adacree in favor of libelants for the sum of $1,576.58, and costs, together with the cost$ of this appeal. .
WOLD et al.
'D.
KEYSER.
(Circuit Court of Appeals, Fifth Circuit. June ro, 1892.) No. 88.
Appeal from the United Statl's Distl'ict Court for the Southern Division of the Southern District of Mississippi. In Admiralty. Libel by Hermann Wuld and others. owners of the bark Foldin, against W. S. Keyser, for demurrage. Libel dismissed. Libelants appeal. Reversed. J. D. Rouse and Wm. arant. for appellants. E. H. McCaleb and J. C. Avery, for appellee. Before. PARDEE and MCCORMICK, Circuit Judges, and LoCKE, District JUdge. PARJ!)EE, Circuit Judge. On the 14th of Novemher, 1889. the Norwegian bark Foldin, then lying at Stettin, waS chartered to W. S. Keyser to tak:e,a cargo of hewn or sawn pitch pine timber from Ship island to the port of Liverpool. The charter contained the usual general clauses, together with the following special clause, which is the subject of dispute in this case, viz.: "Twenty-two running days, Sundays and holidays excepted, are to be allowed * * *in Which to load the ship at port of loading. * * * In the computation of the days allowed for delivering the cargo shall be excluded any time lost by reason of floods, droughts, storms. or any extraordinary OCCUfrenee beyond the control of the charterers. Demurrage to be paid for each working day beyond the days allowed for loading at .£12 per day. and the charterers may keep the ship on demurrage ten days." The lilJel alleges. and the answer admits, that the vessel arrived and was ready to rl'ceive cargo on the 21st day of January, 1890. and that the lay days in due course expired February 15. 1890, at which date DO cargo had been furnished. Delivery of cargo did not begin until February 20th, and the loading was not cOIDpleted until March 27, 1890. As an excuse for this delay the defendant alleges in hjs answer "that. at the time the said bark reported for cargo under the terms of said charter, there was an unusual, general, and extensive drought prevailing throughout" the whole section of country from which timber is obtained for the loading of ships at Ship island, Moss point, and other points in