#### The Tweedie Trading Company, Appellant, *v.*George F. Craig and Others, Copartners Doing Business under the Firm Name of George F. Craig & Company, Respondents.

First Department,

November 14, 1913.

Ships and shipping — demurrage failure of shipper to deliver cargo on dock within reach of ship’s tackle —usage or custom — evidence — proof that steamer was properly equipped to handle cargo — expert evidence — charter party — contract merged in bill of lading.

Where a charter party provided that the vessel should employ its own stevedores to load lumber from a dock where it was to be placed by the shipper, there was an implication that the cargo was to be delivered at a place convenient for loading directly into the vessel, and, hence, where the lumber was placed between forty and ninety feet from the nearest point at which the vessel could dock so that the vessel’s ordinary tackle could not reach it, and the vessel was delayed by reason of the extra work required to load the cargo, the shipper is liable for demurrage charges under a bill of lading providing that 11 any detention on the part of the shipper in supplying cargo as fast as the steamer can receive, to be accounted for by the payment of demurrage ” at a certain rate, etc.

In an action to recover such demurrage charges the plaintiff is entitled to show a usage or custom by which it is the duty of the shipper to bring the lumber within the reach of the ordinary ship’s tackle where the charter party is silent on that question.

So, too, the plaintiff is entitled to show that the ship was properly equipped with the tackle in ordinary use and how much lumber could have been loaded with the force employed if the lumber had been placed within reach of the ship’s tackle.

The plaintiff was entitled to give expert testimony as to how much lumber a given number of competent stevedores could load into the steamer within a given time.

*193*It*seems, that where the original charter party contained no provisions with respect to demurrage charges at the port of loading, but the bill of lading subsequently issued by the carrier and accepted by the shipper, contained a provision for such charges, there was no waiver by the carrier. The rights and liabilities of the parties after the issuance of the bill of lading were governed thereby, and this is true although the delay for which demurrage was charged occurred prior to the issuance of the bill of lading.

Hotchkiss, J., dissented, in part, with memorandum.

Appeal by the plaintiff, The Tweedie Trading Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of May, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the New York Trial Term.

*Ralph James M. Bullowa [Emilie M. Bullowa*with him on the brief], for the appellant.

*D. Theodore Kelly [Charles F. Williams*with him on the brief], for the respondents.

Laughlin, J.:

The action is brought to recover demurrage and additional special damages through the alleged failure of the defendants to furnish a cargo of lumber for loading on plaintiff’s steamship *Nordpol*in accordance with the provisions of a charter party made between the parties, the Southern Shipping Company acting as broker for the plaintiff and one of the defendants for the defendants, on the 7th day of January, 1907, at Savannah, Ga. The charter party is in the form of a letter addressed by said shipping company to one of the defendants and accepted by him in writing, the body of which is as follows:

“We hereby confirm for account of the Tweedie Trading Company, New York, engagement from you of a million and a quarter feet (1,125,000 ft.) Pitch Pine Lumber hence to St. John, N. B., by the above steamer, on the following terms: “Rate to be seven dollars ($7.00) per thousand superficial *194feet, under deck, charge [cargo] to be furnished here at the rate of two hundred thousand feet (200,000 ft.) per working day and to be discharged on cars at port of discharge, according to the custom of the port. Ship to employ her own stevedore and to have the privilege of taking other cargo and calling at other ports en route. Steamer is now on passage to Savannah from Hampton Roads, and will be ready for cargo immediately she arrives, which should be to-morrow afternoon or Wednesday morning. ”

At the time the contract was made most of the cargo, but according to some of the evidence not all of it, was on a schooner dock or wharf in Savannah; but whether or not that fact was known to plaintiff’s agent does not appear."

The evidence shows that the steamer arrived in Savannah at seven-thirty o’clock in the morning of January eighth. The captain reported to Mr. Harris, who was the president and manager of said shipping company, and he testified that “Mr. Harris told me where to berth.” The evidence shows that the steamer was moored at the dock where the lumber was piled shortly afternoon on the ninth of January, and it is stated in the points on both sides that the loading began on that day and was completed on the twenty-first or twenty-second of the same month; but those facts appear in the record only from a translation of a Norwegian log book which was excluded and marked for identification. It appears that there was a railroad track along the dock, and the lumber, which evidently was brought to the dock on cars, was placed in piles lengthwise of the dock and parallel with the stringpiece of the dock, leaving an open space of about ten or twelve feet between it and the lumber. Outside this stringpiece pier points extended into the water between thirty and forty feet at the extreme points, forming projections described as appearing like the teeth of a saw. They were designed for berths for small schooners. The *Nordpol*was three hundred and forty feet in length, and when brought to the dock extended both at the stern and bow considerably beyond three of these pier points, so that the side of the vessel nearest the dock was some thirty or forty feet from the string-piece, and consequently between forty and fifty-two feet from the nearest lumber. The vessel contained four -holds for lumber *195and was equipped with tackle and a hoisting engine and apparatus for loading the lumber, and employed the ordinary number of stevedores to load the lumber into the four holds at the same time. The lumber piles extended back about thirty or forty feet, so that some of it was about ninety feet from the side of the vessel. The evidence does not show where the lumber which was brought to the dock after the steamer arrived, if any was so brought, was placed. The evidence shows that the ordinary ship’s tackle was inadequate to reach this lumber on account of the distance at which it was piled from the side of the steamer and that it was necessary to drag the lumber partly over the pier and pier points and partly over the water between the pier points to the side of the steamer and then to lift it over the side and into the hatches; and the captain testified that “ To load the lumber we had to use the whole tackle, and an extra tackle added to that, to reach up to the piles,” and that the necessity of dragging materially detained the loading of the steamer.

The plaintiff alleged that after the cargo was loaded it issued a bill of lading which was delivered to and accepted by the defendants and constituted the agreement between the parties for the transportation of the lumber and that it was provided therein that the steamer should commence loading immediately on arrival at the port and continue loading, working all hatches at once, day and night and Sundays and holidays, “ any custom of the Port to the contrary notwithstanding,” and that *“*any detention on the part of the shippers in supplying cargo as fast as steamer can receive to be accounted for by the payment of demurrage by them at the rate of eight pence British Sterling per Steamer’s net register ton, and steamer to have a lien on cargo for same.” In the complaint as originally served it was alleged that the defendant failed to deliver the lumber according to the contract and bill of lading and thereby became liable to plaintiff for demurrage as prescribed in the bill of lading. On the trial the complaint was amended by adding an allegation to the effect that, under the provisions of the contract and bill of lading and under the custom of the business and of the port and of all Atlantic ports, “when a shipper is required to furnish lumber to a steamer, to be *196loaded at a certain rate, the custom requires that the shipper, if it supplies the wharf, supply a wharf where the ship can load the lumber within reach of the ship’s tackles.”

On objection interposed on behalf of the defendant the court excluded evidence by which, evidently, plaintiff expected to show that in negotiating the contract nothing was said with respect to the wharf from which the lumber was to be loaded, or, at least, that plaintiff’s agent at Savannah did not inform it where the lumber was. It is argued in behalf of the respondent that it is to be inferred that plaintiff’s agent knew where the lumber was and that the charter party is to be considered as having been made for the loading of the lumber at that particular dock, and from the place where the lumber was then piled thereon. The evidence does not establish the premises upon which that legal argument is founded. It may be argued, with at least equal if not greater force, that if the shipper had intended to accept the lumber as it was piled on the dock as a good delivery for loading, the contract would have so provided instead of providing in general terms that the shipper should *furnish*the lumber at the rate of 200,000 feet per day. It is no answer to this suggestion that the lumber may not have all been on the dock at that time, for if the contract was made with reference to that particular dock and the location of the lumber at the time, it is reasonable to infer that it would have contained a reference to the dock and would have contained some express provision with reference to the lumber which was not then there. For the purposes of this appeal, therefore, the contract is to be interpreted as one silent with respect to the wharf at which the cargo was to be loaded. In such circumstances, manifestly, it is the duty of the shipper to deliver the cargo at a convenient place for loading in the port from which the shipment is to be made. It is no more the duty of the carrier, in the absence of some general custom which might be controlling, to unload the lumber from cars or to haul it from any considerable distance to the ship’s side than it would be to cut the timber in the forest and saw and transport the lumber. The contract provided that the ship should employ her own stevedore, and it is fairly to be inferred that the lumber should be so placed that the only *197labor required to load it into the holds of the vessel would be that ordinarily performed by stevedores, which is confined to loading and unloading vessels in port under the direction and subject to the control of the master of the ship. *(The Elton,*83 Fed. Rep. 519; *Rankin*v. *Merchants & Miners’ Trans. Co.,*73 Ga. 229.) It is fairly to be implied that the cargo was to be delivered at a place convenient for loading directly upon the steamer. On the evidence to which reference has been made, I think the plaintiff showed a breach of the contract on the part of the defendant in not delivering the lumber at a convenient point for loading.

On the precise question, however, as to what would be a good delivery in such circumstances, I think it was competent to show, under the amended complaint, that there was a general but well-known usage or custom under which it was the duty of the shipper to bring the lumber within reach of the ordinary ship’s tackle. The plaintiff was precluded from presenting such evidence, and since the charter party was silent on that point, I am of opinion that the court erred in excluding the evidence. *(McPherson*v. *Cox,*86 N. Y. 472; *Donovan*v. *Standard Oil Co.,*155 id. 112.) Notwithstanding the exclusion of this evidence the court did admit evidence tending to show that by custom a delivery more than fifty feet from the side of the vessel would not be a good delivery. It being uncontroverted that a large part of the lumber was delivered at a distance considerably greater than fifty feet that evidence showed a breach of duty on the part of the defendants.

While the plaintiff was permitted to offer some general evidence from which it may be inferred that the ship was equipped with the usual tackle and that the necessary number of stevedores was employed, yet the court erred in excluding definite proof to show that the steamer was properly equipped with tackle in ordinary use and how much lumber could have been loaded with the force employed, if the lumber had been delivered within reach of the ship’s tackle, for the burden was on the plaintiff to show that the delay was necessarily caused by defendants’ failure to deliver the lumber within reach of the .ship’s tackle, and in order to do that it was necessary to show how much the stevedores could have loaded had the delivery *198been made according to the contract as well as how much they were able to load in taking the lumber from beyond the reach of the ship’s tackle.

The question as to how much lumber a given number of competent stevedores could load into the steamer in a given time manifestly was one upon which it was proper to give expert evidence, and it is doubtful whether it could be proved in any other manner, for neither the court nor the jury could take judicial notice of such matters *(Van Wycklen*v. *City of Brooklyn,*118 N. Y. 424), and it is not quite clear that the facts could be so stated or described to the jury as to enable them to reach a correct determination with respect thereto, *(McRorie*v. *Monroe,*203 N. Y. 426; *Jenks*v. *Thompson,*179 id. 20. See, also, *Finn v. Cassidy,*165 N. Y. 584; *German American Ins. Co.*v. *N. Y. Gas & El. Co.,*103 App. Div. 310; affd., 185 N. Y. 581; *Regan*v. *Brooklyn Heights R. R. Co.,*115 App. Div. 705.)

Counsel for the respondents contends that the plaintiff failed to show any damages, and that, therefore, the judgment should in no event be reversed. The principal argument on this point is to the effect that the bill of lading, which was issued after the cargo was loaded, does not govern demurrage for detention at the port of loading. The plaintiff, however, gave evidence of substantial damages which it would be entitled to recover even though the bill of lading does not govern demurrage for detention while loading. The plaintiff showed that it did not own but had the *Nordpol “*on time charter,” by which was meant that it had the entire use of the vessel; and further that it was paying at the rate of $149.49 per day therefor. Plaintiff also showed the amount and value of the coal used per day while the vessel was delayed at the dock.

These views require a reversal, and, although the question as to whether the bill of lading is controlling on the question of demurrage is not presented for decision, since that question has been argued on both sides and will arise on a new trial, we deem it proper to discuss it to some extent. The freight charges were to be and were paid on the delivery of the cargo at the port of destination. The record does not show the circumstances attending the delivery, and since the effect thereof, *199therefore, could not he fully argued we express no opinion as to whether the plaintiff may or may not have waived its right to recover by relinquishing its lien and surrendering the cargo or by anything else occurring at that time. It is claimed on the part of the respondents that the plaintiff issued the bill of lading without making any claim for demurrage or other charges, and that it thereby waived its right thereto. On that point also the record does not fully disclose the facts. The plaintiff merely showed by the testimony of one of the defendants that while the cargo was being loaded he suggested to plaintiff’s agent that defendants’ form of bill of lading be used, and was advised that plaintiff requested that its own form of bill of lading be used, and that after asking to have certain clauses put in plaintiff’s bill of lading — from clauses added in writing it would seem that such request was granted — he agreed to accept plaintiff’s form of bill of lading, and it was prepared and issued accordingly. In view of the provisions of that bill of lading with respect to demurrage at the port of loading it cannot be said that the issuance thereof in and of itself constitutes a waiver of plaintiff’s right to demurrage or damages. The charter party contained no provision with respect to demurrage. It was evidently contemplated by both parties that as soon as the cargo should be loaded a bill of lading containing the *usual*provisions with respect to such cargoes would be issued, and the negotiations of the parties with respect to the form of the bill of lading to be issued clearly show that such was their intention. The first line of the bill of lading is printed in red in the form of a notice that the bill of lading *“*constitutes the contract between the Shipper and the Steamer.” It is well settled that by accepting the bill of lading before the shipment of the cargo the defendant became bound thereby, notwithstanding the fact that the preliminary contract rested in parol or was evidenced by a writing and merely prescribed the freight charges. *(Germania Fire Ins. Co.*v. *M. & C. R. R. Co.,*72 N. Y. 90; *Hill*v. *Syracuse, Binghamton & N. Y. R. R. Co.,*73 id. 351.) The case at bar is much stronger, for here the parties negotiated the form of the bill of lading and agreed upon the same while the cargo was being loaded. It is, therefore, quite clear that the *200rights and liabilities of the plaintiff and defendants *after*the issuance of the bill of lading were governed thereby. It is contended, however, that since the delay, of which complaint is made, occurred *prior*to that time, the bill of lading is not controlling. In the absence of evidence that the parties did not intend that the bill of lading should not control the question of the rate of demurrage, we are of opinion that the bill of lading relates back and governs the liability of the defendant for demurrage. It was not expressly shown, but it is fairly to be inferred, that it was usual to incorporate in bills of lading which are issued after the cargo is loaded, provisions governing demurrage at the port of loading as well as at the port of destination. If, therefore, this was a customary and usual provision, it must have been contemplated by the parties when they made the informal contract evidenced by the letter herein quoted. (See *Donovan*v. *Standard Oil Co., supra.)*

It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Soott and Dowling, JJ., concurred.

Hotchkiss, J. (concurring):

I concur except so far as the effect of the bill of lading on the question of demurrage is concerned. Whether the bill of lading was or was not intended to express on this subject any contract between the parties, cannot, I think, be determined on this record. Nor do the circumstances permit of so much as a finding that the bill of lading was *prima facie*intended as evidence of any such contract. I do not think the cases of *Germania Fire Ins. Co.*v. *M. & C. R. R. Co.*and *Hill*v. *Syracuse, Binghamton & N. Y. R. R. Co.*apply where there has been a charter party and a bill -of lading is issued to the shipper after the event has happened which gives rise to the litigation.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.