Hall v. Barker

Appleton, C. J. The defendants shipped on board the schooner Mabel Hall, of which the plaintiff was master, a quantity of rough stone, weighing 338,090 pounds, from Yinalhaven, to be delivered in good order and condition at (Port) Delaware Breakwater, untoMaj. Charles S. Stuart, Brevet Lt. Col. Engineers, or his successor at a specified freight per ton without primage and average accustomed, the stone to be discharged by the consignee with the assistance of the crew. It was admitted that the vessel containing the stone arrived at the Breakwater in due time, but that no one being ready to receive the cargo, the plaintiff was detained there twenty-eight days beyond a reasonable time for discharging. The plaintiff for this delay claims compensation in the nature of demurrage. The bill of lading specifies no time within which the cargo was to be discharged, nor is there any written contract between the parties upon the subject. The plaintiff was master of the Mabel Hall, and half owner ;— sailed the vessel on shares, victualling and manning her, and receiving half her gross earnings, acted as agent at home and abroad, had full control of her, making all contracts for freight and signed the bill of lading. He is therefore, pro hac vice, to be regarded as between these parties, as the owner of the vessel and as such to [343] receive what may be due. Bonzey v. Hodgkins, 55 Maine, 98; Clendanil v. Tuckerman, 17 Barb., 185; Worden v. Bemis, 32 Conn., 268. The shipper of goods is liable for freight to the ship owner. “Demurrage,” as is remarked by Heath, J., in Besson v. Solly, 4 Taunt., 53, “is only an extended freight,” and the liability for freight and for demurrage stands upon the same grounds. "When there is a reservation for demurrage, either in the charter party or the bill of lading, that must control. When there is none it seems settled by all the authorities that an action for damages arising from delay on the part of the shipper in receiving goods, in the nature of demurrage, may be maintained. The plaintiff has brought assumpsit upon the promise implied on the part of the shipper to receive the goods shipped within a reasonable time after their arrival at the port of destination. The ship-owner impliedly promises to carry the goods as speedily as may be consistent with safety, and is liable in damages for culpable neglect or unreasonable delay. It is the duty of the shipper to be ready to receive the goods at the port of discharge and to see that they are unloaded with reasonable dispatch. .For the non-performance of these reciprocal obligations, the injured party has a remedy without any express stipulations to that effect. “Damages, in the nature of demurrage,” observes Butler, J., in Worden v. Bemis, 32 Conn., 273, “are recoverable for detention beyond a reasonable time, in unloading only, and when there is no express stipulation to pay demurrage. They are in the nature of demurrage because they are for the detention of the vessel, and measured by the day like demurrage, and are damages because they are recovered for a breach of the implied contract of the shipper that he will receive the goods in a reasonable time. Assumpsit will lie for them because resulting from a breach of contract, but the count must be special, as for unliquidated damages in other cases of breach of an implied contract.” In Clendanil v. Tuckerman, 17 Barb., 185, which was an action for freight and demurrage, it was held where there has been no special agreement [344] between a shipper of goods and the master’of a vessel run on shares for demurrage, that if the vessel is detained an unreasonable time by the freighter or consignee the owner of the vessel may recover damages in the nature of demurrage for detention. In Cross v. Beard, 26 N. Y., 85, it was held in the absence of any express agreement as to demurrage, that a contract is implied that the owner and consignee of goods will provide for their discharge in a reasonable time, and that he is liable in damages in case of a breach of such implied contract. The contract with the plaintiff under the bill of lading was with the shipper. Blanchard v. Page, 8 Gray, 281. As there was no provision for the payment of demurrage by the consignee, the shipper’s liability for such demurrage remains equally as for freight. Gage v. Morse, 12 Allen, 410; Chappel v. Comfort, 10 C. B., (N. S.,) 802. The defendants are liable in assumpsit upon their implied contract and are liable to pay interest from the date of the plaintiff’s demand which was made upon the twenty-fifth day of July, 1867. Defendants defaulted. Walton, Dickerson, Barrows, Daneorth and Peters, JJ., concurred.