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Dayton v. Parke

22 N.Y.S. 613 Court N.Y. Gen. Term Decision date 1893-02-13 English

Delivered by BARHARD, P. J.

Contents

Majority

p. 613
(67 Hun, 137.)
DAYTON v. PARKE et al.
(Supreme Court, General Term, Second Department.
February 13, 1893.)

Headnote

1. Shipping—Freight—Liability of Consignee.
Where a cargo is consigned to defendants, and they are notified of its arrival, and make no objection, and they accept the inspector’s certificate that the cargo has been discharged, they are prima facie the owners, and are liable for the freight.
2. Demurrage—Discharge of Cargo—Liability of Consignee.
A cargo consigned to defendants arrived at the dock named in the charter party on June 22d, but could not begin to unload until June 28th, the delay being caused by the dock being occupied by other vessels which had previously arrived. The charter party provided that for each day’s detention by default of the consignor or its agent plaintiff should be paid $52, and the agreement in regard to discharging was expressed by the words “customary dispatch,” which has been held to mean a berth where the vessel can unload as soon as she is ready. Held, that defendants were liable for the demurrage.
3. Same—Province of Jury.
Where plaintiff claims that he was delayed after the commencement of the unloading through the failure of the consignee to provide a proper berth for the work, but the proof is not absolute, so that the court can fix the demurrage, the claim for the alleged loss of time is for the jury.
4. Costs—Offer of Judgment.
Where a complaint stated two causes of action, one for freight and one for demurrage, and defendants made an offer of judgment for an amount equal to the claim for freight, and the judge allowed the claim for demurrage at six cents, the offer was not more favorable than the judgment, and, in view of the fact that judgment on the claim for demurrage should have been for a larger sum than the nominal amount rendered, the costs of the action were properly taxed against defendant.
Appeal from circuit court, Suffolk county.
Action by William B. Dayton against William A. Parke and Edmund W. McClave to recover freight and demurrage. The court directed judgment for plaintiff for the full amount of freight claimed, and for six cents demurrage. From that part of the judgment awarding six cents for demurrage, plaintiff appeals. Reversed.
Costs were allowed to plaintiff, but defendants, having made an offer of judgment, claimed to be entitled to costs, and from the order denying their motion to disallow plaintiff’s bill of costs, and to direct the taxation of the bill presented by them, and from the judgment in plaintiff’s favor for the full amount of freight claimed, they appeal.
Affirmed.
Argued before BARHARD, P. J., and DYKMAH and PRATT, JJ.
p. 614
Parsons, Shepard & Ogden, for appellants.
Thomas J. Bitch, Jr., for appellee..

The plaintiff represents the owners of the schooner J. H. Parker. On the 19th of May, 1891, the captain of the vessel, acting for the owners, made a contract with Malonee & Co., of Charleston, S. C., to carry a cargo of cross ties from Charleston, S. C., to the Long Island Railroad dock, Hunter’s Point. The cargo, when loaded, was consigned to the defendants. On the 23d of June, 1891, the vessel arrived at the dock in question, and reported her arrival to the defendants. On the 28th of June the vessel began unloading, and finished July 1, 1891. The time consumed before the unloading commenced was occasioned by the fact that other vessels with cargoes for the dock had arrived before the plaintiff’s schooner, and thereby had a right to unload in the order in which they came. Under these facts, there is no defense to the claim for the freight. The consignee is prima facie the owner. Thompson v. Fargo, 49 N. Y. 188 . Hot only was the cargo consigned to these defendants, but they were notified before delivery, and made no objections. They received the inspector’s certificate that the cargo was discharged, and accepted the same, and were willing to pay the freight. The defendants refused the bill of lading sent them. By its terms the consignees were to pay the freight as per charter party. ■ The defendants, under all the evidence, wholly uncontradicted, made themselves liable for the freight as matter of law.

By the terms of the contract for carriage, the vessel was to deliver the cargo at a particular dock. She was compelled to be idle for lack of opportunity to unload at that dock. Are the defendants liable for demurrage? By the charter it is provided that, “for each and every day’s detention by default of said party of second part (consignor) or agent, fifty-two dollars shall be paid by said party of the second part or agent' to said party of the first part or agent.” The contract in respect to unloading is expressed by the words “customary dispatch,” which have a definite meaning by long usage and by a series of decisions thereunder. “Customary' dispatch” means a berth where the vessel can unload as soon as she is ready to deliver cargo, and the usual dispatch of persons who are ready to receive cargo. Unless there is some local reason to avoid this contract so construed, the plaintiff is entitled to recover for the six days. The charterer who selected the wharf was bound to be ready to receive, and it is no defense to the claim for demurrage that the wharf selected was occupied when the plaintiff’s vessel arrived. The consignee is liable for the demurrage, as well as for the freight. He is the prima facie owner, as has been stated. Scholl v. Steel Co., 101 N. Y. 602 , 5 N. E. Rep. 782 . The evidence further shows that they were the real owners, and had agreed to sell to the Long Island Railroad Company. They are therefore liable for the demurrage.

The claim for the loss of time after the unloading commenced is a question for the jury. It is not proven that proper dispatch was not given so absolutely that a court can fix the amount of the demurrage in this respect. The plaintiff is entitled to six days’ demur-

p. 615
rage, at $52 a day, and all beyond that must be established by a jury.

The defendants made an offer in the action. The complaint stated two causes of action,—one for the freight, and one for the demurrage. The offer was for an amount' equal to the claim for freight. The judge allowed the claim for demurrage at six cents. The offer was not more favorable than the judgment. In the view we take of the claim for demurrage, the judgment should have been for a larger sum than the nominal amount rendered. The taxation was therefore right, and the order should be affirmed, with costs and disbursements. All concur.

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