Harrington v. American Tie & Lumber Co.

NOYES, Circuit Judge (after stating the facts as above). The respondent was bound to pay demurrage only on account of delay caused by its default. And as the cargo was ready any possible default must have had its basis in the clause in the charter party: '“Charterer’s stevedore to be employed in loading.” In our opinion, however, this provision did not impose upon the charterer any obligation either to furnish a stevedore or to load the vessel. It merely gave the charterer a privilege or option which it might or might not exercise. If it did not exercise it, the master was bound to do the loading. Anglo-African Co. v. Lamzed, L. R. 1 C. P. 229. It follows, then, that if the respondent had not designated a stevedore, there would have been no ground for claiming that it was in default. But the respondent did designate a stevedore who was unable to do the work. Did this put the respondent in default? We think not. In our view the respondent, by designating- Mason, did not guarantee that he would do the loading or that he could get men for the purpose. It was undoubtedly the duty of the libelant to employ Mason if he could and would do the work; but, when Mason was unable to attend to it, the libelant was then bound to have the work otherwise done. ' It was the duty of the master to load the ship. It is true that he was required to employ the person named by the charterer if he were available. If he were not available, the master was not justified in claiming that the respondent was in default and in doing nothing. Even if the fact'that the respondent attempted to avail itself of its privilege of naming the stevedore justified the libelant, after the person designated declined to act, in awaiting further action upon the part of the respondent, we think it does not help the libelant here. The weight of the testimony is that the respondent’s agent told the libelant, very soon after his arrival at Jacksonville, that the respondent waived its privilege. Clearly the respondent had the right to do this. By seeking to avail itself of its privilege, it did not irrevocably commit itself in the matter. The decree of the District Court is reversed, with costs, and the cause is remanded, with instructions to dismiss the libel, with costs.