The Manitowoc tribune. [volume] (Manitowoc, Wis.) 1866-1878, 1873-02-06
MARINE DECISION.
Important to Shippers, VesseI.Owu-

erS and Lawyers.
The following decision of the United States Court
rendered by Judge Sherman, at Cleveland, will be
gentlemen OF the legal profession
IN ADx1Rnrr-BsroRK JUDGE SHERMAN
Michael Weaver and others owner of the schoon |
er Glover Thos Walton, claimant of sl4l bush
els OF barley.
Wiley, Darcy Terrell for Ibelants Prentiss
Eorce for claimants.
Opinion Of Jatge sAer7ncn-The libel in this case
WIS filled TO compel the payment OF demurrage by
the consignee Thomas Walton seven DAYS de-
tenion OF the schooner Glover unloading "a cargo
OF barley in the port Of Cleveland. The b of Ia
ding was IN the usual form, hut did provide for
lay days, or for compensation for detention. 1t
Was general in its form, such is mary on
these lakes From the proof 1t appears that the
sci arrived at 10 A. Wednesday, October 4th aud
was forthwith reported to Thomas Walton, the con-
sighse. ihat upon inquiry, both by Walton and the
Captain, no elevator could be found port that
would agree to unload her before the next Friday.
Iha on Friday the 9TH the vessel was at the Erie ee
vatUr and commenced unloading, but the cargo of
barley was found to be wet, caused by leaking
through the matches, and they therefore ceased
loading; that by the next Thursday the harley by
throwing open the hatches and 10y other MEANS be-
came dry enough TO commence unloading; that
about ene-half unIoaded, when some q the ma
chinery of the elevator broke, and the barley
unloaded until Thursday 1t was also established
10y proof that II was general and uniform custom
slong the lakes, including this port that the
signee should have twenty -four hours after the
rival of the vessel at the docks provide place and
prepare Tor its unloading that all grain should be
unloaded by means of an elevator, and that in
/
| turn in the order OF arrival.
Under this state of facts the rbelants the
hand, claim 10 recover damages for the detention OF
the of SIS per day the agreed value
and on the other hand the claimant aud consignse
claims that he is liable for such detention it
was not caused by his fault or neglect. The liability
Of the consignee i'll this action upon the ques
tion whether the law imposes upon him the pay
OF damage when the detention was not caused by his
actual fault or neglect. Originally it held that
damage could only be recovered when it ex-
pressly stipulated for in the contract of areight-
nent or bill OF ladng but of late years it is esab
shed that it may also be recovered when there is
breach of an implied coveneut duty tine part OF
the consgnee In former times all charter parties
and bills OF ladng, stipulated on behalf OF the
frelghtors or consigHees, that certain number OF
days should be allowed for unloading, and that after
their expiration an agreed price per day should 1s
paid for demurrage. The courts before whom such
| contracts came uniformly held that the consignee
was liable for such demurrage, matter for what
reason or whose fault caused the detention They
held because II the contract of the parties, but
chiefly because 1t was contract mutually entered
into, and the consignee could have provided for Il
large number of days, could have stimulated
against liability for delay caused by means and &C
currences over which he had control-(2 Camp
352; II East. 179; Parsons Shipping 31 In other
cases where, according modern usage, there is
stipulation for "ay days deInurrage the char
purity bill of ladiug, the uniformly boil
in England and America, held that where there
express stipulation to the time of unloading,
consignee Is not liable for delays occurring Wilton
his fault or a failure on his part to comply will
some OF the obligations imposed on him by law
custom OF the port as to unloading. q Camp, Asa
do 1857. Chief Justice Mansfield in the last said
to discharge the ship in the usual and customar,
time for unloading such cargo. That has beef
rightly held to be the time within which vessel
| be unloaded in her turn into the bounded ware
houses. Tho same doctrine is fully established il
, | Abbott Shipping, 3D. 312, 3l3. Also in Bene
diet Rep. 105, and Benedict Rep, page ii Cush
| IS. In the late of Strong quantity O
wheat, in the United States District Court, Northern
District OF New York, in manuscript, Judge Hal
held that master of vessel bound know
E the custom OF tie Port to which he conveyed loa
of grain, and if the custom prevailed The por
that all grain should be unoaded elevator,
that the rsssel should wait its that the custom
entered into and became part of the contract, an
that the maste" was bound by that contract.
g The distinction between the liabilities of eonsie
! nees, when clay" day and demurrage are provide
for in bills of ading and their liability, where the
ure not mentioned and provided for, is fully
nized in all the reported 1t is not recognize
in all the reported cases. 1t is not recognized il
y ! rather popular elementary work, because of In
well-known carelessness and of research by it
reputed author, and hence has grown up exten
i, dsd Misrepresentation of the law this subject
Bearing in mind this distinction, and the fact tina
this bill of lading was general one, with no proyis
ion for lay days or demurrage, the question arise
u did Walton by neglect fault the detention
this vesself This detention from Wednesday t
Friday i'll waiting its turn TO get to the elevator
according to the above authorities, and especial
e that from Judge Hall, of the Northern District
New York, part of the contract, in compl
: ance with the custom of the port and Walton, tn
consignee, not liable On Friday, after the ell,
yator commenced take in cargo tindjng the bul
ley wet its managers refused taking it until
dried The libelant claims that the elevate
stopped tai ing it in because of the orders of Walton
who wanted to consult the insurance company
The captain of the vessel so swears Walto
swears the contrary, and states positively that III
elevator people refused to take it because of its
diton The burden of the proof of the fact is on tn
libelant, but the testimony is balanced, and l mu.
assume that Walton did not order, claimed If 81
then the detention of the vessel from Friday TO til
next Tuesday not Waltons fault but rattle
the fault of the master of the vessel, who permite
his cargo to become wet by the defective of h
matches. Nor was it Waltons fault that the vess,
was furthur delayed until the next Thursday in COZ
sequence of the breaking of the machinery of Ii
elevator while it was engaged in taking in the bar
ley. The master of the we'll known an
uniform custom in all the ports on the lakes; tn;
grain is only unloaded from vessel by and throug
an elevator, and that such contemplated when
made his contract, and therefore he takes upon hin
self all the risks and accidents incident such
method of unloading.
S am of the opinion that Walton, the consignee,
not liable in this action. The libel will be dsniisse
Q with costs,