CREIGHTON 11. DILD.
107
the scope of the tariff laws on imports, and are dutiable accordlng .00 the shipping laws alone. Had foreign. vessels been within the scope of the tariff' law on imports, it is certain that the government would not have foreborne for a century past to collect import duties on such vessels, either by reason of their temporary stay, or of any notions of interna" tional comity. In my judgment, nothing in the case removes this yacht from the domain of the laws specially enacted for ships and vessels, as to the dutiable charges thereon; aud as by these laws she is released from the payment of the duties ordinarily imposed on vessels, without being charged with any other duties, or made subject to the general tariff law on imported merchandise, her detention for customs duties was illegal, and the libelant is eutiUed to a decree for pOllSession. with goats and damages.
CREIGHTON 11. DILKS
et
al.'
(Dtatrrct Court, E. D. PennB1/Z"ania. February 9. 18ft)
L
DAlUG.-LuBILlTT 011' CBA.RT1IlRBR.
A cbarterer. having notice of tbe vessel's readiness, and being bound to deliver tbe cargo, Is liable for demurrage for delay caused by loading and discbarging a quantity of Iron not intended to be shipped. which an employe of the charterer err\lneously designated as part of the cargo. ON SUNDU.
S.
A master, In the absence of agreement or consideration to the contrary, ill not to pet-mit. the charterer's stevedores to load the vessel at night or on Sundays. BAlIfE-MullURB 01l'DA.MA.GBS.
8.
The 01 damages lOt- delay caused by the charterer, who bad agreed to load with "customary dispatch," negligently loading, and being obliged to_ discharge a wrong Is not demurrage for the time spent In such loading and discharging, but the tlme spent in getting tne velllle! loaded over the time ltwould have .taken to load with "customary dispatch." .
In Ae:tmiralty. Libel by James E. Creighton, 'master of the schooner Mary' O'N'eill, against George H. Dilks. & Co. to recover demurrage for alleged delay in loading said vessel. Dt:cree for libelant for John F. Lewis, for libelant. F. I. Guwen, for respondents. BUTT.ER, District Judge. On September 17, 1889, the respondents chartt:red the schooner l\Iary O'Neill (of which libelant is master,) to carry a of railroad iron from the Philadelphia & Reading Railroad Company's whl\rves at Port Richmond, Philadelphia, to Birmingham, Ga. The sc400ner was required to be in readiness for loading on the following Monday. "Customary dispatch" was allowed respondents for loading, and in case of further· detention $5.5 per day were to be paid the vessel for losS of time. The schooner was in readiness at the time appointed;
'lDeported bl HarkWllka Conett Esq., of the Philadelphia bar.
108
J'EDEBAL REPORTER,
voL 49.
and the loading commenced late on that day. The iron was pointed out. by an employe of the railroad company, at the wharf, and ,loaded under the direction of Mr. Shannon, chief stevedore employed by the respondents (through Mr. Boney)-as he testifies-for this purpose. The iron turned out to be other than that which the respondents intended to ship, but the mistake was not discovered until a large quantity had been loaded. When discovered the iron was ordered off; and about seven days'time was lost by the error. The loading in consequence was not complete until the night of the 21st of September. The libelant claims compensation for the loss of time to which he was subjected. The respondents deny liability on the grounds that the mistake, as they allege, was not theirs; and that, even if it was, there would not have been any detention over the time allowed for loading, if the libelant had permitted them to work at night. Neither position can be sustained. It was the duty of the respondents to deliver the cargo to the vessel. They knew she was at the wharf, ready to receive it, the terms of the charter required them to take notice of the fact, and besides express notice to theo;J. is averre.d in the libel, and not denied. They depended upon others to point out and load the iron they desired to ship, andr Ale responsible for their acts. There is no room for pretense that the error arose from any fault of the libelant. ....1'he ppsition is equally untenable. .The respondents had no tight to-call <;In the libelant for permissi()D to work on the vessel at night or on Sundays. Neither the charter, nor any custom entitled them to such permission. It is unimportant what induced the libelant iorefuse. ·It is plain, however, that loading at such a time would have mbjected him to disadvantages; not only for the reason which he states, but for the additional one that it was his duty to be present when the loading was being done, and to superintend the storage of the cargo. The testimony of the respondents' witnesses respecting what he said after the' 'mistake .was discovered does not show a contract that the work 3hould proceed at night, or on Sundays. Even if it showed an.' agreeInl'lnt ,thatjt he would not be bound, in the absence of a con8iderationJor'his promise; and none is suggested. I incline to however, thatbis own testimony on this subject-which is that he offered to agrEle' provided he'was compensated for five days' time 'which he then supposed would be lost-is nearer an accurate statement of what occurred. He is more likely to know what he said tban other are., and this statement seems more consistent with probabilities; and finds ,some corroborationiJ;l what .the respondents' witnesses say. Although the libelant is entitled to recover for loss of time, it does n,ot. follow that tRe loss is to be measured by time occupied in taking on ll.nd putting.off wrong iron. The charterers were entitledto so much to load, employing" customary dispatch." For as.he was to beyond this time q.e is entitled to ,but to no more. A good deal more t1;1an customary patch was' used after the error was discovered; and a little before. Itow many tons should p.ave been loaded ,s,uch Js not
CHAMBERLAIN V.PETTIT.
109
entirely clear. The respondents' witnesses disagree respecting it. Mr. Shannon, who is probably most competent to form a just estimate, says, "100 tons could have been loaded easily." The vessel, as he tsays, was especially adapted to speedy loading of such cargo. Before the error was dicovered the loading was at the rate of about 140 tons per day. The work continued, however, for 11 hours while the customary hours of working are but 10. It was understood that the libelant was anxious to get away, and there was something probably more than customary speed shown, aside from the gain obtained by working the extra hour. I balieve it is safe to say that with the dispatch required by the charter 125 tons per day should have been loaded; and I do not think it safe to place the rate higher. At this estimate 6 days would have been requiredto load the 725 tons carried. To this must be added one day for the Sunday which intervened. ' I think half a day should also be added for the time it rained on Friday, when, according to custom, the men would not work. Mr. Shannon speaks of rain on the preceding day also, but it is manifest, I think, that he is speaking of the night of the 10th. Other parts of his testimony seem to show this, and that the day WI,l.S not wet. Sevan and a half days, therefore, should be allowed fodoading. The vessel was detained until the night of the 21st of the month, covering a period of 13 days. Taking H from this leaves ai, which represents the loss of the time to which the vessel was subjepted, and for which it should bepaid-at the rate provided by the This will give him $302.50. A decree may be entered {or this sum, with costs.
(Di8trWt 1.
oourt. E. D. Penn8y1Jvan'fa. ·
January 111, 1892.)
SlIJPPING-CHARTER-PAR'l'Y.
A of a to carry a certain named cargo, drawn In formal terms and without conditions, will not be construed as a mere memorandum, not binding on the parties, where there is nothing to warrant a belief that the ship's representa.tive understood that he wa.s to be affected by the charterer's failure to get the cargo named in the charter. ' A meIf1ber of a. firm of ship-brokers ha.vlng chartered a vessel to carry a certain kind of cargo, and being unable to furnish the cargo, his firm rechartered the vessel for 8 cargo of a different character,' paying also to the ship a sum, In addition to the freight named ill. the second charter. Held, as none of these circumstances show that the master agreed that the second charter should replace the first, he was 'entitled to recover dama.ges if the vessel was delayed or the freight or the Second cargo of leas tj:lan the first. ' ,
9.
SAME-'D..lMAGES POR BREACH.
In Admiralty. Libel in personam by Joab Chamberlain, plli$terand part owner of the schooner V",nderherschen, Charles A. Pettit, Frank D. Pettit, and Robert F. trading as Charles'A; Pettit & J Reported'
by Mark Wilks Collet, Esq., of the Philadelphia 'bal