#### Ambrose Van Etten, Respondent, *against*George B. Newton *et al.,*Appellants.

(Decided June 3d, 1889, and February 3d, 1890.)

Plaintiffs canal boat, hired by defendants to take a cargo of coal, which . could have been loaded within five hours, was detained by defendants . ten days after her arrival at the place of loading, being seven days beyond the time allowed them for the purpose by the owner. *Held,*that defendants where liable for demurrage, even though there was no express agreement to pay demurrage; and that, having agreed to deliver the coal at a certain time, they were not relieved from liability for demur-rage although they were prevented from delivering the cargo in time by the neglect or omission of a third party upon whom they relied.

A bill of lading recited that plaintiff had received from defendants, and •' that defendants had shipped on board plaintiffs boat named, a quantity of coal intended for third parties, also named, which plaintiff agreed to carry to a specified -port. *Held,*that parol evidence to show that dependants were not shippers of the coal was not admissible.

Appeal from a judgment of the District Court in the City of New York for the First Judicial District.

The facts are stated in the opinions.

*Edward D.*McCarthy, for appellants.

*Hyland*Zabriskie, for respondent.

Larremore, Ch. J.

This was an action to recover damages in the nature of demurrage for seven days’ detention of plaintiff’s canal boat “ J. M. Burt,” at Perth Amboy, New Jersey, while waiting there for a cargo of coal.

The order was given to the plaintiff on May 8th, 1888, and the canal boat arrived at Perth Amboy on the same day, but it was not loaded until May 17th, except that eighty tons of the cargo were placed in her on May 15th.

Plaintiff based his action,—first,-for a violation by defendants of their implied contract to load the boat within a reasonable *time;*second, for a violation of their express contract to *539load her on May 10th; and, third, for a failure to load her on the 15th after they had commenced to load her and had placed eighty tons of coal in her. It was admitted by the defendants that the boat could have been loaded in five hours if the cargo had been there. Plaintiff testified that it would take from three to five hours. Mr. Uhler, the shipping agent of the defendants, testified: “Question. When Captain Van Etten came to you on May 8th, did he not state that his steamer would be loaded on. the lOtli? Answer. He may have done so, I don’t remember. Question. Did he not sa\r his steamer was going to the same place that the boat was consigned to ? Answer. He may have. Question. Did he not say that he did not want to detain the steamer, that would be loaded by the 10th, to wait for a cargo on the canal boat? Answer. He did.” The canal boat was a consort to the steamer, which was to tow it to its place of destination.

It seems reasonably certain that the delay from the 8th to the 17th was an unjust and improper delay, for which the defendants are liable. Aside from the implied contract to load the boat within a reasonable time, the plaintiff swears that the defendants agreed to load his boat by Thursday, May 10th, as before stated. Even in the absence of such an agreement, plaintiff would be entitled to recover demurrage for the same number of days, for the reason that lie allowed the defendants three days to load the boat, whicli could be loaded in from three to five hours, and any detention beyond these three days would necessarily be unjust, for which the plaintiff could recover. The freighter is liable to the vessel for any unnecessary detention in loading or unloading, although no express contract is made on the subject *(Sprague*v. *West,*Abb. Adm. 548, 555; *M. S. Bacon*v. *Erie Western*Trans. *Co.,*3 Fed. Rep'r 344). In the latter case it was held “that an express stipulation for demurrage in the contract of affreightment is not necessary to entitle the owner of a vessel to compensation for her unnecessary or improper detention in loading or unloading; reasonable promptitude in delivering a cargo at its point of shipment and receiving it at its place of destination is a duty implied in such "contracts, and for a violation of it, *540damages in'the nature of demurrage are recoverable.” These cases dispose of the question raised by the defendants’ counsel that an action for demurrage cannot be maintained without a special contract.

*Fisher*v. *Abeel*(66 Barb. 381), holds: “ Where no time is fixed for loading or unloading, it is to be done in a reasonable time, and what constitutes a reasonable time is for the jury. Although there is no express agreement for demurrage, damages in the nature of demurrage may be recovered against the owner of the cargo when he improperly detains the vessel beyond a reasonable time for loading or unloading.”

The original shipper of goods upon a boat or vessel for transportation under an ordinary bill of lading or its equivalent, remains liable to the master for freight money earned, although the latter delivers the consignment without exacting payment for carriage, of the consignee. This is so, although the consignee offers to pay the freight, which the master refuses to receive *(Gilson*v. *Madden,*1 Lans. 172).

In the case of *Rackett*v. *Stickney*(23 Blatch. 566), notwithstanding a printed clause indorsed on the order for shipment, “ that no liability for demurrage or other charges shall, be incurred by [the defendants], the cargo, or consignee there-' of, for any delay in the loading, such delay to be borne by the vessel or boat,” that court held that the clause was not bind-, ing upon the plaintiff, but that he could recover damages for the improper delay at the shipping port.

It is quite evident that the defendants are at least liable for the detention of the boat from May 15th to May 17th. This showed an improper detention of three days; and plaintiff swears that the canal boat in question, at that time, was worth twenty dollars a day. It might also be inferred from the evidence that the boat was improperly detained seven days in loading over and above a reasonable time; also that the defendants violated their express contract with the plaintiff to load the boat on May 10th. The judgment rendered was for about half the amount sued for, and appears to be a moderate sum for the damages which the plaintiff sustained by reason of the defendants’ acts.

*541In the case of the James *H. Dumont*(34 Fed. Rep’r 428), it was held that “ The amount to be allowed for the detention of a vessel is the value of her use, and evidence of the expenses of the voyage and the time it has taken, including the loading and unloading, is competent to show the net value of the vessel per day.”

The judgment appealed from should be affirmed, with costs.

Allen and Bookstaver, JJ., concurred.

A motion was afterwards made by defendants at the November General Term, 1889, for a reargument or for leave to appeal to the Court of Appeals, on which the following opinion was rendered, December 2d, 1889.

J. F. Daly, J.

There is no question of law in “this case which would justify us in sending the appeal to the Court of Appeals. The effect of the stipulation in the order for the coal which the defendants gave to plaintiff, was to relieve them from liability for demurrage unless the detention of the boat was due to other than unjust or improper delay on defendants’ part in loading, where it does not appear that the recipient of the order was ignorant of the conditions indorsed upon it *(Rackett*v. Stickney, 23 Blatchf. 566). But there is a question of fact in the case upon which appellant should be allowed an opportunity to be heard; that is, whether the delay in loading the boat from the 8th to the 17th of May, or for any part of that time, was an unjust and improper de- ' lay. I find from the evidence that the defendants had no control over the transportation of coal from the mine to Perth Amboy; that they ordered it on the 10th, but none came until the 15th, when eighty tons arrived and were put on the boat, the balance not arriving until the 17th, when the loading was completed ; and that the sole fault lay with the railroad company. Against the default of third parties, the defendants might reasonably avail themselves of their stipulation, and this seems to be such a case. And as the decision "of this court, affirming the judgment, was placed upon the ground that -the delay was due to the defendants, and was *542unjust and. improper, and as the point was not argued on the appeal, 1 think a reargument should be permitted.

Larremore, Ch. J., and Van Hoesen, J., concurred.

On the reargument ordered in accordance with the foregoing decision, the following opinion was rendered, February 3d, 1890.

Bischoff, J.

This action was brought in the First District Court to recover damages in the nature of demurrage for the detention of plaintiff’s boat, and was tried by the justice without a jurju On July 10th, 1888, judgment was rendered for plaintiff in the sum of $60, which was reversed on appeal as excessive. The second trial, on February 21st, 1889, resulted in a judgment for plaintiff for $51, and upon appeal to the General Term of this court, the last judgment was affirmed, the Chief Justice writing an opinion in affirmance. Thereafter defendants were granted leave to reargue the appeal, and the matter is now again presented for determination on such reargument.

The facts are sufficiently stated in the opinion referred to, and a careful examination of the evidence and of the law stated fails to show any error in the opinion. Defendants, however, now contend that there is no proof of any contract of shipment between themselves and plaintiff, and that it does not appear that the dehiy in loading plaintiff’s boat is attributable to any fault on their part, and that upon such grounds they are absolved from liability, and the judgment should be reversed.

Both contentions are untenable. It appears that, on May 17th, 1888, at the time when the loading of plaintiff’s boat was completed,.plaintiff executed and delivered, and defendants accepted, a bill of lading in the usual form, reciting that plaintiff had received from the defendant, and that the defendants had shipped, on board the ¿plaintiff’s boat “ John M. Burt,” a quantity of coal intended for Merritt Clark’s Sons, of Derby, Conn., which plaintiff agreed to carry to the latter *543port. This bill of lading was partly printed and partly written, and *prima facie*establishes the contractual relation between the parties to this action. On the trial, however, defendants sought by proof of verbal negotiations to divest themselves of the character of “ shippers ” of the coal in question. Such proof was clearly inadmissible for the purpose claimed. It is held, upon sufficient authority, that a bill of lading partakes of the dual character of receipt and contract. In so far as it is a receipt it is *prima facie*evidence of its contents only, and may be rebutted by parol. As a contract, however, it establishes the relation of the parties and the terms upon which the shipment was to be made, and in that character it cannot be disproved by proof of prior parol negotiations, in the absence of fraud or mistake. It is conclusive upon the parties thereto. In *Long*v. *New York Cent. R. Co.*(50 N. Y. 78), Judge Allen, speaking of the bill of lading, says : “ The verbal contract was merged in the written agreement, and the latter must be taken as the evidence, and the sole evidence, of the final and deliberate agreement of the parties. If it did not embody truthfully the terms of the agreement as actually made, the plaintiff or his agent should not have received it, or assented to the carriage of the property under it; if accepted by the agent by mistake, that fact should be shown. But at the time of the receipt of the goods, and the delivery of the shipping receipt or contract for the carriage, the parties were in a situation to correct any mistake or misunderstanding as to the terms of the verbal agreement and definitely adjust its terms. The one could retain his property or ship by some other carrier, and the other could refuse to accept the goods for carriage except upon such terms as should be agreed to. All prior negotiations or agreements were superseded by the formal written agreement, and by it, and it alone, in the absence of mistake or fraud, the duties and liabilities of the parties must be regulated.” There is in the present case no element of fraud or mistake, the contract was deliberately entered into, and the coal was actually put onboard of plaintiff’s boat; and to permit defendants to prove by parol evidence that in fact they did not sustain *544the relation of shippers towards the plaintiff, would in effect be to permit them to disprove the contract of shipment itself, which it is confessed they deliberately entered into, and would involve a denial.of the salient principle established by the Court of Appeals in the case cited.

Neither can the defendants claim to be absolved from liability for the detention of plaintiff’s boat because it does not appear that such detention was due to fault on their part. Plaintiff says that, on May 8th, 1888, in response to defendants’ written request, he called upon their agent Uhler, and at that time received from him written instructions addressed to the railroad company’s agent, directing the latter to load plaintiff’s boat; that at the same time, in answer to plaintiff’s inquiry, he was informed by Uhler that the coal would be delivered on 'May 10th, and that on the last mentioned day he had his boat in readiness to receive the coal. • There was some conflict of testimony on this point before the trial justice, but in the absence of palpable error or gross injustice this court is not warranted in reversing the judgment of the court below upon that ground. It must then be assumed, for the purposes of this appeal, that the defendants had undertaken to deliver the coal at a certain time, and for their failure to deliver the coal at the time agreed upon, they cannot claim to be absolved from responsibility because they were prevented from performance by the neglect or omission of some other person upon whom they had depended for such performance. See *Tompkins*v. *Dudley*(25 N. Y. 272); *Holyoke*v. *Depew*(2 Benedict Dist. Ct. 340).

The verbal agreement to deliver May 10th cannot be held to vary the terms of the bill of'lading. It does not controvert the terms of the latter, and was made and acted upon before the bill of lading, by which the contractual relation of the parties is established, was delivered.

The judgment should be affirmed, with costs.

Bookstaver, J., concurred.

Judgment affirmed, with costs.