In re 2,098 Tons of Coal

JENKINS, Circuit Judge, after stating the facts, delivered the opinion of the court. The obligation of the Ionia was to deliver her cargo at a particular dock. The voyage was not completed, nor was her obligation discharged, until she reached the designated place of discharge, ready to deliver her cargo. The ship must reach the place designated. Murphy v. Coffin, 12 Q. B. D. 87; Dahl v. Nelson, 6 App. Cas. 38, 44; Basti [320] fell v. Lloyd, 31 L. J. Ex. 413. In the latter case, by the terms of the charter party, the ship was to proceed to Mr. Coles’ Wharf, Rochester, or so near thereto as she might safely get. The vessel was detained for some days, waiting for better tides. Lord Chief Baron Pollock observed that: “The master is bound to take his ship to Coles’ Wharf, unless prevented by some permanent obstruction. This is a contract to proceed to a certain place, and if, in the ordinary course of navigation, the ship could get there, the master was bound to take her.” In Strahan v. Gabriel, cited by Lord Esher in Dahl v. Nelson, supra, the discharging place named was a,; quay. The ship on arrival found the only quay berth occupied by another vessel. The shipowner offered to discharge across the ship which occupied the quay berth if the charterer would .pay for the stage and labor. The charterer refused, and the shipowner claimed demurrage. Lord Esher held that the lay days did not commence to run until the plaintiff’s ship was alongside the quay, that being the place named whereat the voyage was to end. See, also, The M. S. Bacon (C. C.) 3 Fed. 344; Finney v. Grand Trunk Ry. Co. (D. C.)14 Fed. 171; Fish v. 150 Tons of Brown Stone (D. C.) 20 Fed. 201; The J. E. Owen (D. C.) 54 Fed. 185; The Viola (D. C.) 90 Fed. 750; The Cyrenian (D. C.) 123 Fed. 169; Weaver v. Walton, 1 Flipp. 441, Fed. Cas. No. 5,488; Burmester v. Hodgson, 2 Camp. 488; Ford v. Colesworth (1868) L. R. 5 Q. B. 544; Hick v. Raymond (1893) App. Cas. 22; and Huelthen v. Stewart & Co., 2 K. B. (1902) 199. The rule would not be applicable if the delay in reaching the designated dock is attributable to the active fault of the charterer, or the owner of the cargo. No such fault is here shown. The record discloses no knowledge by the consignee, up to the time of the sailing of the Ionia from Toledo, of the installment of the “clam-shell” system on the Clancy Dock, if such change was then in progress. The statement of the master that the representative of the consignee said -that the coal had been shipped ahead of the order of the consignee does not impute a fault to the consignee or to the charterer which was proximate to the delay of the vessel in reaching the dock. The duty of the consignee, then, in the absence of active fault upon its part, began when the vessel reached the dock, ready to be delivered of her cargo. There being no stipulation in the bill of lading with respect to the time of unloading and discharge, the duty imposed was to give the vessel reasonable dispatch, determined by the circumstances then existing. Corrigan v. Iroquois Furnace Co., 41 C. C. A. 102, 104, 100 Fed. 870. The consensus of the English and American cases is well stated by Judge Sanborn in the case of The Empire Transportation Co. v. Philadelphia & Reading Coal & Iron Co., 23 C. C. A. 564, 571, 77 Fed. 919, 925, 35 L. R. A. 623: “(1) Where the charter of a ship is silent as to the time of unloading and discharge, there is no implied agreement that the charterer will unload or discharge her in the customary time at the port of delivery, regardless of all extraordinary circumstances and unforeseen obstacles. “(2) The implied contract is to unload and discharge her in such time as is reasonable, in view of all the existing facts and circumstances, ordinary and [321] extraordinary, legitimately bearing upon that question at the time of her arrival and discharge. “(3) This implied contract to discharge the vessel in a reasonable tíme is, in effect, a contract to discharge her with reasonable diligence. “(4) The burden is on him who seeks to recover damages for the delay of a vessel under such a contract to prove that ,the charterer did not exercise reasonable diligence to discharge her, under the actual circumstances of the particular case. “(5) Proof that the vessel was delayed in unloading beyond the customary time for unloading such cargoes at the port of her delivery throws upon the charterer the burden of excusing the delay by proof of the actual circumstances of the delivery, and his reasonable diligence thereunder.” See Postalthwait v. Freeland (H. of L.) 5 App. Cas. 599; Lyle Shipping Co., Ltd., v. Corporation of Cardiff (C. of A.) 2 Law Reports, Q. B. D. 638. In the former case it is declared that the duty of the consignee “is not absolute, but to do his best.” In the latter case it is said that the test of reasonable dispatch is “not a hypothetical state of things”—not “an ordinary state of circumstances”—but “the actual state of things at the time of the discharge.” Within this rule, we think, the consignee is absolved of fault. It had no control of the dock The slight delay in discharging the cargo after the vessel was fast to the dock arose from the change from the clam-shell to the bucket system—it being found that the former did not work satisfactorily—and the change was in order to give the vessel quicker dispatch. After the vessel was berthed, the total delay from all causes did not exceed one day. For that the consignee was not responsible, and the delay so caused, in effect expedited the delivery of her cargo. Under the clam-shell system installed, and which, owing to the default of the contractor, was imperfect and operated poorly, the time of discharge would have been longer. We abate not one jot from the statement in the Corrigan Case, supra, that “a vessel should ordinarily have prompt dispatch, for such is essential to her profitable employment”; but, holding that the consignee is not responsible for the change of system inaugurated by the owner of the dock, or for the giving place to and discharging the Marina prior to the arrival of the Ionia, we see no circumstance of fault in the discharge of the latter vessel. The owners of vessels can readily protect themselves by the insertion in their contracts of a time limit for the release of the vessel after her arrival in port, in which case even unavoidable delay would not excuse the charterer. The decree is affirmed.