#### William D. Jameson, Respondent, *v.*Elizabeth Sweeney et al., Appellants.

(City Court of New York, General Term,

October, 1900.)

1. Ships and shipping — Delivery, where method is not specified.

Where a bill of lading does not specify the method of delivering the cargo of a vessel, delivery should be according to the custom of the port or of trade between the parties.

2. Same — Action against consignors for demurrage — Proof of prior action against consignee admissible.

Where the owner of a vessel sues the consignors for unnecessary delay in the discharge of the cargo, they are entitled to show that, *646in a prior action against the consignee upon the same cause of action, the owner attributed the delay to him, and that the owner did not sue the consignors until the consignee had become insolvent, nor until the Statute of Limitations had nearly run against the claim.

3. Same — Consignors not bound to furnish means of dockage.

Where a bill of lading is silent as to who should furnish a vessel’s means of dockage, it is improper for the trial court to charge the jury that this was the duty of the consignors, as the "presumption is that the vessel would discharge by her own tackle or be discharged by the consignee.

Appeal from judgment upon a verdict and from an order denying the defendants’ motion for a new trial. Action for damages, in the nature of demurrage, brought by the owner of a canal-boat against the consignors. The questions referred to in the opinion as “ shown on page 16 ” were intended to prove that the plaintiff had already sued the consignee, alleging that the delay was his fault, and that when the present action was brought the consignee had become insolvent, and that the Statute of Limitations had nearly run.

James J. Macklin, for appellants.

Hyland & Zabriskie (Nelson Zabriskie, of counsel), for respondent.

Hascall, J.

We find, with the respondent’s contention, that, . as to the mode of delivery, where not specified in the bill of lading, it is to be according to custom of the port, or of trade between the parties. 87 N. Y. 240. Such custom, or a local law, may give the master the right to recover damage for unusual or unnecessary detention in the discharge of cargo. And to this extent such a custom or, possibly, a local ordinance, will be read into the written contract as having been made with regard to it. But this case does not hinge on the plaintiff’s right to recover for detention, in the absence of specific agreement, if the circumstances permit it, even though the bill of lading be silent as to demurrage, and we have so written under this same title (29 Misc. Rep. 584), holding that the owner might pursue either consignor or consignee. Under the facts shown upon this trial, however, we think that the detention at the dock of discharge was, in greater part, attributable *647to the master of the boat himself; and, having delayed his action from 1893 to 1899, the claim had presumably become stale as to these defendants. They should, therefore, have had the opportunity to introduce the proofs sought by questions shown on page 16 of the case. These were erroneously excluded under the plaintiff’s objections. It was also error, we think, to charge the jury that the defendants were to, and did not, furnish proper facilities to discharge the cargo. The plaintiff assumed to know the harbor when he made his bill of lading, which provided that the cargo was to be delivered to Mr. Birkett (the consignee). The contract was silent as to who was to furnish the means of dockage. Presumably, therefore, the boat would discharge by her own tackle, or the consignee would provide the means; nothing in the contract bound the consignors. The plaintiff took the risk of finding suitable dockage, depth of water, and discharging facilities. These errors upon the trial call for a reversal.

Judgment and order appealed from reversed and new trial ordered, with costs to appellants to abide the event.

Fitzsimons, Ch. J., and Conlan, J., concur.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.