The morning call., 1893-04-19
SHIP DEMURRAGE.
An Opinion of District
Judge Morrow.
MANY SHIPPERS INVOLVED,
A Result of the Failure to Pay Exc
port Duty During the Balmaceda
Revolution in Chile.

United States District Judge Morrow yes
terday delivered an able opinion on a ques-
ton of great interest to merchants and
shippers. The opinion was read in the
presence OF large number of admiralty
lawyers, who were greatly interested in the
subject matter, many of them having
similar cases pending.
The amount at issue was not very large.
but the principle involved was of consider
able Importance to shippers who had deal
iugs with Chile during the late Balmacsda
revolution. During the revolution the con-
tending parties had each control of differ
ent parts of the country. In consequence
sellers and shippers not knowing whether
the revolution would succeed or not were at
a loss whether to pay export duty on nitrate
or not. Many of them did not, and in con-
sequence after the Congressional party
succeeded, vessels which had been chartered
aud been detained for their cargOes claimed
80 much day for being detained or what is
known in shipping circles as demurrage.
George Mcleod was one of those WHO
claimed demurrage on such ground, and
libeled in the United States District Court
in this city 1850 tons of nitrate for the sum
of 1927 81, the nitrate belonging TO the firm
Of Grace and Co. of New York, extensive
dealers in nitrate.
The case was holly contested, and the
arguments OF counsel covered wide range,
the discussion even entering the domain Of
international law.
Judge Morrow gave an exhaustive review
OF the case in an opinion covering thirty
pages OF legal cap. Tie principal points of
the decision are rs follows:
The court said that the charter party
stated that the parties Of the second part
engaged TO furnish a vessel with a full cargo
Of nitrate from safe nitrate port as or
dered by the chaTtererS to San Francisco.
The acts OF God" enemies, political
occurrences" fire and accidents" beyond
the charlerer'S control we're excepted in case
Of failure of contract.
The bark Dunstaffdage discharged cargo
of lumber at AntOtagasta, IN the republic
of Chile, and the cbRrterers on December
1, 1890, named the port of Caleta Buena rs
the loading port.
When the bark arrived at this port the
master of the vessel was notified that the
port was bocKaded.
The necessary nitrate had been purchased
In time for shipment to j. W. Grace q Co.
But under the laws Of the Republic of
Chile there was parable by the sellers on
all cargoes OF nitrate sold for shipment from
Chilean ports an export duty of 81 80 for
each 100 Spanish pounds. This duty was
payable at the custom-house at the port of
shipment.
When the bark arrived at Caeta Buena
there was III progress the Chilean reYOiu-
ton. The Congressional party held possess
sion OF the town of Caleta. ana SO held
poSsessiO ion during the period involved in the
controversy. During that time no repre-
| sentative of the Balmaceda party or Govern
ment WAS at that port TO whom the duties
| could have been paid, but there was Con-
| giessional representative present who could
| have received the payment of the duties
| and issued clearance papers.
The cnaitereTS failed to deliver a cargo on
| board The bark within the time required in
the charter party, and they gave as a reason
| for such failure the refusal of tile sellers of
| the nitrate to deliver the same for shipment
| during such time as the Balmaceda party
! was unrepTesented at Caleta Buena, on the
| ground that the payment of the export duty
| 10 the Congressional party would not be in
| liquidation of such duty, and q efense to
| them as against any claim which might
! thereafter be made by the Balmaceda party
or any charge of violation Of the revenue
laws Of the Government. AT no time during
| the detention OF the bark at Caleta Buena
was the independence OF the Government o +
| the Congressional party recognized by any
| nation. The master of the vessel suisse
| quentiy notified the agent Of the charterers
| that the ''lay" days had expired, but the
agent refused to admit the claim and re-
| ferred to the clause in the charter about
''the acts OF God, J." war" political occur
| Tences," as All excuse.
The question arose as TO whether the
| charterers are relieved from liability for
| the detention of the vessel at Caleta Buena
beyond the perlod of thirty days, under the
| exceptions provided In the charter.
| judge Morrow holds that under all dec-
| siOns shippers are held strictly to teIms for
| any detention beyond LAY" days and de-
| murrage is To be paid at fixed rate per
| day.
In regard TO the claim of the charterer,
| that the delay in loading the vessel was not
due TO their default, but the interpos itCn of
a superior force. Judge Morrow SAYS, after
| reviewing multitude of cases:
The law certainly does not relieve the
| charterers from liability upon the facts in
the present case. No force was applied to
| prevent the delivery or loading of 4 cargo
on board the bark. 1t was the voluntary
act Of the seller of the cargo in refusing for
a time to assume a risk which attached
to tile business. II is not sufficient for them
TO plead now that they took reasonable
measures 10 procure cargo"
In regard to the exceptions in the charter
cites cases in Germany, England, France
and Spain, in which opinions were rendered
by eminent jurisis, and says:
I'm The case at bar, the political occur
rences' had no direct relation to the loading
OF the chartered vessel; but so far as they
were unusual and intervening causes, they
constituted general condition Of affairs
operating upon all vessels and all shippers
alike.
''Such condition is not sufficient ex-
cuse.
The charterers should have provided 2
cargo at the place of loading within the
time stipulated in the charter party, and il
in doing so, they or those of whom they
purchased incurred any risk or peril, ii was
their misfortune and not the fault of the
owner of the vesS ell, who had performed his
part of the contract"
The court ordered a decree entered In
favor of the libelant TO. 1927 81 demurrage