Rowe v. Smith — 23 N.Y. Super. Ct. 268

Majority

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Willett Rowe et al., Plaintiffs and Respondents, v. William M. Smith et al., Defendants and Appellants.

Headnote

1. Under a charter party, the lay days of a vessel, by the general rule, commence to run from the time the vessel enters the dock. Where the delivery, by the terms of the charter party, was to be made “ alongside of the plaintiffs' vessel, within reach of her tackles— Held, that if the master was directed to take the vessel to a certain dock, and did so, the lay days commenced to run from the day when she was taken there and was in readiness alongside that dock to discharge her cargo.

2. There being in this case a conflict of testimony, as to whether the charterers delayed receiving the cargo for their own convenience, or whether the delay was caused by the regulations of the custom house; — Held, that a verdict sustaining the plaintiff’s claim for demurrage, should not be disturbed.

3. Where the defendants, upon the trial, admit that the amount claimed is correct if anything be due, the Court will not grant a new trial upon the suggestion that the evidence does not warrant the recovery of so large an amount.

(Before Bosworth, Ch. J., and Moncrief and Robertson, J. if.)

Heard, February. 9, 1863;

decided, February 28, 1863.

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Appeal by the defendants, from a judgment in favor of the plaintiffs, and from an order denying the defendants’ motion for a new trial.

l liis action was brought by Willett Rowe, Samuel Hemingway, John Pearsall, Tredwell Pearsall and Sarah E. Eneas, against William M. Smith, Jesse Jones and George F. Lough, on a charter of the schooner, Jesse A. Woodhouse, to the defendants. The plaintiffs sought to recover freight and demurrage. The answer admitted the freight, but denied the right to recover any demurrage.

The cause was tried on the 14th day of May, 1862, before Mr. Justice Barbour' and a Jury. It appeared by the evidence, that the vessel arrived in Hew York, on December 2d, with 4,360 bushels of salt. By the charter the defendants were bound to take this cargo in five days, 1,000 bushels a day, or pay demurrage.

Salt is an article liable to duty, under the revenue laws, and can only be discharged on a permit granted by the surveyor, and in tubs gauged by the government, so that* it is measured as discharged.

The substance of other testimony is stated in the opinion of the Court.

The plaintiffs’ counsel stated the amount of the claim to be $563.39, with interest, amounting to $16.50, making $579.89, which the defendants’ counsel admitted to be the correct amount due for freight and demurrage, if anything was due for demurrage.

The Judge in his charge stated, among other things, that “The evidence shows that the schooner, Jesse A. Woodhouse, arrived on Monday, December 2d, and that the captain reported to the charterer immediately, or on that day. The time then commenced to run on that day.” To which the defendants’ counsel excepted. * * *

“The captain, in his deposition, states that the foreman of the storehouse said, in the first place, they could not take the salt; they had not room to store it. * * * He then told me, the captain says, that he could not

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take my cargo out until after the schooner Sound was discharged; he had to unload her first.” * * *

“ The evidence of the captain shows further, that the Sound was not discharged till the 9th or 10th, and at tha time they commenced discharging this vessel. * * *

“ If you believe that statement, gentlemen, the plaintiff is entitled to recover the Avhole amount claimed. The time would commence on the 2d, and she lay there until the 12th, one Sunday intervening. If you believe this evidence of the captain, the plaintiff is entitled to recover; for it Avas clearly the fault of the defendants that a place was not provided for the ship to discharge, and provision made for being discharged.” (To which the defendants’ counsel excepted.)

The Jury found for the whole amount of demurrage claimed.

After a motion for a new trial had been made and denied, and judgment had been entered, the defendants ‘appealed.

John N. Whiting, for defendants, appellants.

I. The Court erred in charging that the time for discharge of the cargo commenced to run when the captain reported to the charterer, on the 2d December. By the contract, it is the duty of the vessel to be ready to deliver the cargo beyond her own side. It is not enough to be alongside of a dock; she must be ready to discharge the cargo, and hand it to the consignee. For that purpose, the vessel must have a crew, tackles, shovels and all other requisite means for such delivery, not on board, but off from, that is alongside of the vessel.

Tubs were as necessary for this purpose as a crew or shovels and tackles. If, on account of the regulation of the custom house, the tubs could not be obtained, then the fault is not that of the defendant, and he is not liable for the delay.

H. The Court erred in charging “ it was clearly the fault of the defendants that a place was not provided for the

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ship to discharge, and provision made for being discharged.”

III. The Court erred in refusing to charge as requested.

TV. The amount of demurrage is excessive. The vessel did not get to her berth till the 3d of December.

She was to carry 6,000 bushels, and to have one day per thousand bushels for discharging. That would take till the 10th, as one Sunday intervened.

Demurrage could only be recovered for two days, if defendants were in fault.

Robert D. Benedict, for defendants, respondents.

The complaint, in this action, among other things, alleged an agreement “ that the defendants should have one working day for each one thousand bushels of salt, in New York, for discharging, and in case of detention beyond that time, twenty-five dollars for each day’s detention;” and again, “that the said vessel was also detained, in discharging, at the City of New York, five days beyond the time required in and by said charter;” the agreement itself provides for the payment of demurrage to the plaintiffs, * * “ for every day so detained, provided, such detention shall happen by default of the said parties of the second part (the defendants) or their agent.”

The answer of the defendants denied “that any demur-rage or sum of money whatever, by reason of any delay or detention in discharging at the port of New York, is chargeable to or payable by the defendants, under said charter party, or that said such delay, if any, was occasioned by the defendants and averred that * * # “ the delay or detention, if any, was occasioned by and is chargeable to the said plaintiffs.”

The issues to be determined, and the only dispute between the parties, appear to be:

1st. Was there any delay or detention; and,

2d. If there was delay or detention, by which party was it occasioned, and to whom is it chargeable.

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The vessel arrived at this port on the 2d day of December, and was immediately reported, by the captain, to the defendants; he was directed where to proceed, with the view to the delivery of the cargo, and took his vessel to the place assigned to him on the night of the 2d or the next day, the 3d of December. - Lay days, by the general rule, commence to run from the time the vessel enters the dock. (1 Parsons on Maritime Law, 262, and cases there cited.) The vessel was not discharged until the 12th of December, and, it is apparent, the vessel was detained, at the port of Hew York, at least nine working days, (one Sunday, the 8th December, intervening between her arrival and discharge.)

Upon the remaining issue, to whom this delay is to be attributed and chargeable, there was considerable testimony of a conflicting character; the evidence of the captain tended to show a clear default, of the defendants; their refusal to discharge his vessel until after another vessel, the schooner Hound, was discharged. This testimony was corroborated by the fact, which I do not see anywhere contradicted, that the plaintiffs’ vessel did not commence to discharge until after the Hound was discharged, on the 10th of December. On the other side, the defendants offered evidence tending to show that the delay was caused by the inability to procure tubs from the government officers, into which to discharge the salt, &c., and upon this subject much testimony was given of a contradictory character. There was also evidence tending to show a direction to the captain to discharge the cargo, which put the delay upon the plaintiffs, but this evidence was also contradicted. Under such circumstances, the verdict of the Jury should be conclusive; the Jury having found a verdict for the plaintiffs, it should not be disturbed.

The defendants, upon the trial, admitted that the amount of the verdict is correct, “if anything was due for demurrage.” Hence, the suggestion that the evidence will not warrant the finding in favor of the plaintiffs for five days detention cannot be entertained.

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The delivery,' by the terms of the charter party, was to be made “ alongside of the plaintiffs’ vessel, within reach of her tackle.” If, therefore, the' plaintiffs were directed to take their vessel to a certain dock, and the vessel was so takén, and was in readiness, alongside that dock, to discharge her cargo, on the 2d of December, the working lay days commenced to run from that time, and there was no error in the learned Justice so charging. Some of the exceptions to the charge embrace so much of the language used by the learned Judge as to render it impossible to discover what portion the exception was intended to cover; such exceptions are never entertained; a party must point out, with clearness and precision, the portion to which he objects; the part quoted, in the second point, on behalf of the appellants, is but a portion of the proposition submitted to the Jury, which, as a whole, is correct.

Perceiving no error prejudicial to the rights of the defendants, nor any ruling against them, which could have affected the Jury in rendering their verdict, I am of the opinion that the judgment should be affirmed.