Wordin v. Bemis

Butler, J. The objection to the sufficiency of the declaration must be overruled. Demurrage, in the strict sense of the term, means a sum of money due by express contract for the detention of a vessel in loading or unloading, one or more days beyond the time allowed for that purpose in the charter party. As it is a certain sum, due by force of an express contract, general assumpsit will lie for it. Damages in the nature of demurrage, are recoverable for detention beyond a reasonable time, iii unloading only, and where there is no express stipulation to pay demurrage. They are in the nature of demurrage because they are for a detention of the vessel, and measured by the day like demur-rage, 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. The plaintiff can not therefore recover on either of the two first counts of the declaration, for he declares in both for a certain sum as a debt. The third count is special for damages, and sets forth every material fact which the plaintiff is bound to prove in order to recover, or the defendant to answer in order to defend. But the plaintiff has omitted to allege the implied promise to receive the coal in a reasonable time, the breach of which is the foundation of the action. The defect in -that count is not, as the defendants suppose, an omission to allege a promise to [274] pay damages or demurrage for detention, but an omission to state the promise to receive the goods in a reasonable time, which the law implies from the facts stated, and which is usually averred. Whether that count is demurrable by reason of that omission 'or for duplicity we need not inquire. The defendants have not demurred and can take nothing from their present objection. The second objection must also be overruled. It has been holden in England that the master of a vessel, as such, can not recover damages in the nature of demurrage. Brouncker v. Scott, 4 Taunton, 1. The correctness of that decision has been questioned. In Evans v. Forster, 1 Barn. & Ad., 118, the decision was followed by Lord Tenterden “ as the safest and wisest course,” and such is the law there. In this country the law is not settled, nor is it necessary to decide the question in this case. The plaintiff ran this vessel on shares, paid all expenses and had entire control of her course of employment, and made all contracts in respect to her employment in his own name and on his own behalf. He was pro hac vice owner, and can maintain his action as such. The defendants insist, in the third place, that the detention was not their fault. It is not pretended that it was the fault of the plaintiff. He was there ready and anxious to discharge, and the defendants knew it. The railroad company were not ready to receive, and the defendants say that the company were not their agents. But in this too they are wrong. In all cases of the transportation of cargoes by water, when there is no specific agreement between the shipper and carrier in respect to the particular wharf or spot at the port, where the cargo should be landed, or any known custom of the port, the shippers or their agents must be there ready to receive it on notice of t.he arrival of the vessel. In this case there was no such custom, and no specific agreement. It is found that the hill of lading was the only contract made between the parties in respect to the transportation of the coal and that is silent on that point. It was then the duty of the defendants to be there or have an agent there to receive it or find some convenient spot where it could be deposited in a reasonable time, and [275] on their failure to do so, or of the agent to receive, the plaintiff was at liberty to treat the contract as broken, land the cargo at the usual place if there was any such, or procure a suitable place at the expense of the defendants, or wait the tardy movements of the defendants or their agents, and rely on obtaining compensation in this action for breach of the implied contract to receive in a reasonable time. He chose the latter alternative. And now it does not lie in the mouths of the defendants to say that the company were not their agents. The facts found clearly indicate that he was directed to deliver at Belle dock, and that was the dock of the railroad company. It is insisted that the railroad company were mere intermediate carriers, and the plaintiff should be held to have assumed the risk of their delay in receiving the coal, and that such should be the rule in all such cases. This claim is novel. It is not supported by authprity, but is argued and urged upon principle. It is not well founded. The contract of the plaintiff, and as the court finds the only one, is contained in the bill of lading. That requires him to deliver, not to the railroad company or any intermediate carriers as such, but in terms “ at the aforesaid port of New Haven, unto S. C. Bemis Sf Co., (Springfield,) or their assigns.” The word “Springfield” is descriptio personarum, inserted to identify the defendants by their place of residence. The plaintiff did not contract to deliver to the railroad company, nor did the railroad company contract with him expressly or impliedly to receive it in a reasonable time, and the defendants did. There is no fact or principle of law which can place him or the defendants in any other position with respect to each other, or third persons, than that in which they placed themselves by the bill of lading. Moreover the bill of lading impliedly bound them to be there or have an agent there, ready to receive the cargo, and if they were not there, and the railroad company were not their agents, their contract was not performed. Whether it would be well or not that shippers should guard against the consequences resulting from the unreasonable delay of intermediate carriers in receiving goods, and how they could do it, we need not inquire. It is obvious that if [276] they desire to transfer the risk of detention to the carrier by whom they first ship, they must make a different contract from that made in this case. Perhaps a bill of lading which called for a delivery to a railroad company, as intermediate carriers for conveyance, might be framed to import that the first carrier .assumed the risk of receipt by the intermediate carrier in a reasonable time, and preclude the implied obligation to receive themselves or by an agent. That implication must be precluded. But would the intermediate carriers in such case be liable to the first, if they did not refuse to receive, but did neglect to receive in a reasonable time ? And suppose they should refuse to receive at all, what-then would be the condition of the first carrier? There are other difficulties which might be suggested, but it will be time enough to consider them when a case is presented which calls for their consideration. It is very clear that this does not. The defendants further insist that if the railroad company were their agents, still they are not liable, for that the coal was in fact received in a reasonable time, and there was no breach of their implied contract. And this point is well taken and we must sustain it, though it may operate hardly iipon the plaintiff. There is an apparent equity in the case in favor of the plaintiff. Yessels are expensive—it is expensive to man and run them—the wear and tear is considerable—the coastwise business is one of hardship and exposure, and it is confined to a few months of the year—the remuneration is moderate and a considerable delay in port is ruinous. The delay in this particular case occasioned a loss exceeding, it may be, the earnings of the voyage or trip. In such a case the excuse for the delay should be satisfactory, and should be clearly shown, although it furnishes no reason for shifting the plaintiffs hardship upon the defendants if the latter were not in fault. The excuse in this case is, that the railroad company had facilities for the discharge of seven vessels at the same time, and that they were sufficient to meet the wants of the public in all ordinary times, but that there was an unusual accumulation of vessels at this time,, and the plaintiff was discharged in turn. [277] The rule that vessels must take their turn in the order of their arrival is just and necessary, and too well settled to be disregarded. It is well settled also by numerous decisions, that the owners of such a road and dock are not bound to make provision for an unexpected and accidental accumulation of vessels, and the defendants are in no worse condition than they would be if the dock and road had been theirs. Influenced by the equity of the case I had at first some doubt whether the finding in respect to the excuse came up to the necessities of their defence. It is not found that the accumulation was owing to any unexpected cause, or that it might not have been foreseen and provided against by proper foresight and diligence. In several of the cases cited the vessels were detained by a storm or storms, and all arrived together when the weather cleared up. There the elements were the cause. Here the cause is not found, nor is it found that the accumulation was not the result of previous want of diligence or other fault on the part of the company. Still, it is expressly found that the company did all they could do to hasten the discharge of the vessels after the arrival of the plaintiff, and there is no presumption that they or the defendants expected or could have foreseen the arrival, of so many vessels, or were in any way the cause of the accumulation, and we are constrained to hold the excuse sufficient. It was intimated on the argument that the company required the vessels to be unloaded into their cars, and that there was vacant dock room where, in such an emergency, a part of the detained vessels might also have deposited their cargoes, involving additional expense to the company, but collectible from the owners, and far less than that entailed by the delay upon the plaintiff and others, and that it was the duty of the company to permit them under such circumstances so to unload. But no facts are found which raise that question, and we are not at liberty to consider it. The superior court must be advised to render judgment for the plaintiff for the amount of his freight merely, and to reject the claim for damages in the nature of demurrage. In this opinion the other judges concurred.