Flood v. Crowell

PARDEE, Circuit Judge, after stating the facts as above, delivered the opinion of the court. This is a suit brought by the owners of the ship Horace W. Macom-ber for demurrage under a charter party which provided that, for each and every day’s detention by default of the consignees, they should pay owners $90 per day. The demurrage claimed is for the delay between the ship’s arrival at the port of Galveston and the securing of a wharf for discharge, and the narrow question is whether the consignees are in default for such delay. The charter party provides that “lay days for loading and discharging shall be as follows, commencing from the time the captain reports himself ready to receive or discharge cargo: Time for loading and to be discharged, rate of not less than two hum [405] dred and fifty tons per day, Sundays excepted,” — and also provides that “1lie cargo or cargoes shall be received and delivered alongside, within reach of vessel's tackle.” We do not ñnd in the charter party any express provision that (he consignees shall select, furnish, or provide a wharf for the ship to discharge, nor any provision guarantying “dispatch,” “quick disjiatch,” or that the lay days shall commence on arrival of the ship, from which can be implied a contract to furnish a wharf for discharge. The_ provision that “the lay days shall commence from the time the captain reports himself ready to receive or discharge cargo” means no more than that the lay days shall commence from the time the ship is ready to discharge cargo, wi thin the meaning of the charter party; and the provision that “the ship is to be discharged by the consignees at a rate of not-less than two hundred and fifty tons per day” means no more than that the consignees shall discharge the ship at that rate after the ship is ready to be discharged. The ordinances regulating the assignment of ships to wharves in the port of Galveston for loading and unloading, and the custom prevailing in the port of Galveston, requiring, when the wharves are all occupied, that ships shall be assigned in their turn, were, or should have been, known to the owners of the ship, who, it appears, had sent previous cargoes, under charter partía? similar, to tiie present one, to the port of Galveston; and they did know, or should have known, that all the wharves in Galveston were public, and could not* be controlled by consignees. Being charged with this knowledge, if the owners desired to make consignees liable for delays in obtaining a wharf, and relieve themselves from delays of the kind, they could and should have provided for the same in their contract. liaving failed to make such provision, and the consignees not being bound, under our const ruction of the charter party, to immediately furnish the ship a wharf at which she could discharge without delay, we cannot find that for the delay in this case the consignees wore in any wise in default. If not in default, they were not liable for demurrage. Vfe have examined the mauy cases cited by counsel for appellee as supporting his contention as to the liability of the consignees, and, while in many of them detached expressions can be found which appear to support the contention, we do not find any of them to be in conflict with the construction we have given to the present charter party. Tlx» other cases we have examined, mainly cited by counsel for appellants, are to the effect that:, where there is no express contract: on the part of the consignees to furnish a wharf, yet, where the consignees have contracted for dispatch in discharge, or for quick dispatch, or that the number of lay days shall commence on the arrival of the ship in port, there results an implied contract that the consignees shall be responsible for the delays occasioned by failure to promptly secure a wharf for loading or discharging. In these decisions we mainly concur, but they cannot be applied to any advantage in the instant case. As the proof in this present case shows that, when the vessel obtained a wharf and was ready to discharge, the consignees discharged and received the goods as rapidly as the contract called for, we are of opinion that they fully complied with the charter party, were not in default:, and cannot be held liable for demurrage. The [406] decree of the district court is reversed, and the cause remanded to the district court, with instructions to set aside the decree appealed from and dismiss the libel.