
    Jacob Shaver, Resp’t, v. Fred R. Gillespie, App’lt.
    
      (New York Common Pleas, General Term,
    
      Filed June 6, 1892.)
    
    Demurrage—Liability oe freighter for delay nr unloading.
    For delay in unloading caused by the negligence of the freighter, the latter is liable in damages in the nature of demurrage, but not where the same is caused by the vis major.
    
    Appeal from judgment of district court in action for damages in the nature of demurrage.
    
      J. R. Mac Arthur, for app’lt; Hyland & Zabriskie, for resp’t.
   Pryor, J.

The fact of the delay in unloading plaintiff’s boat, and the amount of damages, if any be recoverable, are uncontested ; but the issue in controversy is whether vis major or defendant’s negligence be accountable for that delay and those damages.

It is settled law that, though the bill of lading be silent as to lay-days and demurrage, still the freighter “is liable to the master of the vessel for damages for unreasonable delay in discharging the cargo after arrival.” Scholl v. The Company, 101 N. Y., 602; Van Etten v. Newton, 15 Daly, 538; 25 St. Rep., 751. Failure to provide a safe berth and a proper dock and customary facilities for unloading is such negligence as imposes a responsibility for damages on the freighter. Paquette v. A Cargo, 23 Fed. Rep., 301; Fulton v. Blake, 5 Bissell, 371. In McLaughlin v. Albany, etc., 8 Fed Rep., 447, the adjudication turned on the peculiar phraseology of the bill of lading.

On the other hand, it is equally clear that for delay in unloading caused by vis major, the consignee is not liable. Cross v. Beard, 26 N. Y., 85. But the vis major, and not the negligence-of the consignee, must be the cause of the tardy unloading. Bowen v. Decker, 18 Fed. Rep., 751.

Which of the two causes, namely, vis major or defendant’s negligence, was accountable for the delay in unloading plaintiff’s-boat was strenuously litigated on the trial; and the decision of the justice not being without sufficient support in the evidence is not open to reversal by this court. Scholl v. The Albany Steel Co., 101 N. Y., 602.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.  