
    [United States District Court, District of Connecticut,
    March T., 1886.]
    Gilbert Manson and others vs. The New York, New Haven & Hartford Railroad Company.
    The schooner S, with a cargo of coal, consigned to a railroad company and to be delivered at its docks in New Haven, arrived at that port and the master reported to the agent of the company on January 31st. The agent directed him to discharge at Shop Dock, one of the docks owned by the company, but to wait for another discharged vessel to haul out and for another to haul in and discharge, and requested him while waiting to lie at the mouth of the channel, three quarters of a mile from the dock. While lying there the vessel was frozen in, and on the 5th of February} when notice was sent the master to haul in, he could not find a tug willing to take him in, and the agent refused to break the ice. The vessel lay in this condition till the 15th, when, by direction of the agent, she was taken to Belle Dock, another of the company’s docks, and there discharged. She could at any time have been taken to this dock, as the daily passage of steamboats kept the channel open, and the master proposed to take her there, but the agent would not consent. In a suit of the owners for demurrage, the commencement and rate of which were fixed by the bill of lading, it was held—
    1. That the consignee had the right to direct as to which of its docks the vessel should discharge at, if accessible in a reasonable time and by reasonable means.
    2. That as a general rule a vessel takes the risk of detention by a change of weather, or other cause, after her arrival at the port of delivery and before her reaching the dock.
    3. But that as the detention in this case was not owing to any voluntary act of the master, but to his lying at the mouth of the channel at the request of the consignee, the latter took the risk of a detention by vis major, and was liable for demurrage.
    The bill of lading provided that twenty-four hours after arrival and notice to the consignee, there should be allowed for receiving the cargo one day for every hundred tons, and after that demurrage should be paid at a rate stated. Held that it would be taken to be the intent of the parties that the consignee should have twenty-four hours after notice in which to select a suitable place of discharge; and that there was an implied promise on the part of the consignee that the running days should commence at the expiration of the twenty-four hours.
    
      In Admiralty.
    
      W. K. Townsend and J. H. Whiting, for libellants.
    
      J. T. Platt, for respondents.
   Shipman, J.

This is a libel in personam, for demurrage. On January 21st, 1885, the West Virginia Central & Pittsburgh Railway Company shipped at Baltimore on board the schooner Henry Sutton, of which Gilbert Manson was master and managing owner, and the other libellants were co-owners, 980 tons of coal of 2240 pounds each, to be delivered to the New York, New Haven & Hartford Railroad Company at the “ Consolidated Road Docks,” New Haven, for a specified freight. The railroad company is very commonly called “The Consolidated Road.” The bill of lading contained the following provision in regard to demurrage:

“And twenty-four hours after the arrival at the above named port, and notice thereof to the consignee named, there shall be allowed for receiving said cargo, at the rate of one day, Sundays and legal holidays excepted for every hundred tons thereof, after which the cargo, consignee or assignee shall pay demurrage at the rate of eight cents per ton a day, Sundays and legal holidays not excepted, upon the full amount of cargo, as per this bill of lading, for each and every day’s detention, and pro rata for parts and portions of a day, be\’ond the days above specified, until the cargo is fully discharged; which freight and demurrage shall constitute a lien upon said cargo.”

The Henry Sutton reached Morris Cove, within the entrance to New Haven harbor, on Friday, January 30th, 1885, at 12 o’clock, midnight. On January 31st, 1885, at 2 o’clock P. M., the captain reported to William A. Waterbury, who was then the freight agent of the consignee.

The consignee has three docks: Belle Dock, the Middle Dock, and the Pocket Dock, close to each other, at which coal is delivered. Belle Dock is the largest. These docks are near the steamboat dock, where large steamboats daily land, and are upon the main channel of the harbor.

The coal on board the Henry Sutton was bought for the use of the locomotive engines of the consignee. The largest part of this class of coal is received at the Shop Dock, a small wharf southwest of the passenger depot, and connected with the main channel, three fourths of a mile distant, by an artificial channel which has been dug out within the last five or six years, and which is about ten feet deep at low tide and eighty feet wide. At this wharf are facilities for rapidly discharging a cargo by day and by night.. One vessel only at a time can .lie at the wharf and be discharged. Two vessels can lie at the same time in the basin. Another portion of the coal for the engines of the consignee is delivered at a dock above the drawbridge. A portion of the same class of coal is delivered at Belle Dock.

At this time, on January 31st, the consignee had three cargoes of this class of coal in the port, one, a small cargo, on board the George Aery, which reported on January 30th, and was then discharging at Belle Dock; another on board the Crescent, which reported on January 31st, at 11 o’clock A. M.; and the third on board the Sutton. The Win. O. Snowwas then lying light at the Shop Dock, having discharged her cargo.

At the conversation on January 31st, said Waterbury told Capt. Manson that he must go to the Shop Dock and discharge. The captain replied that he did not think the channel was deep enough for his vessel. Waterbury thought it was. The captain replied that he would try and take his vessel there on the first tide, which would be that night. Waterbury replied that he could not take her in then, as the Crescent was to go in first and they did not want two there at once, as they had had some trouble with two vessels in the basin at the same time.

This conversation was of such importance that I think it desirable to state the reasons for the finding that it took place. Manson testifies positively that he reported to Waterbury on the 31st, was assigned to the Shop Dock, and was prohibited from going there then, and he is supported by George Hills. The first conversation which Waterbury remembers he says took place on February 2d, when Mansou apparently knew that he had been assigned to the Shop Dock. It is manifest that he had been assigned there previously and that he knew it. The only other person who could have made the assignment was the dock-master, who testifies that he took the bill of lading.on the 31st, made an entry of the time thereon, gave the captain no directions, and that his destination was apparently understood between him and Waterbury. The assignment must have been made by Waterbury on the 81st, who merely does not remember it. It is reasonable that the conversation which Mansou and Hills narrate also took place at the same time.

The Wm. O. Snow came out and the Orescent went to the Shop Dock on February 1st. On the same day, about 12 o’clock noon, the Sutton was towed to the entrance of the Shop Dock channel. The tides were good and she could have gone up to the Shop Dock basin. On January 31st, the ice was about an inch thick in the channel.. On February 1st, it was broken by rains. On February 2d and thereafter it increased in thickness, and so continued until after February 15th, and a vessel could not get to the Shop Dock unless a tug boat should make a special trip and break the ice in advance.

During the first week of February Manson attempted to contract with the manager of one of the two principal tug boat companies to tow him to the Shop Dock, but was refused, because the manager did not think it safe either for the tug or tow to make the attempt. The Crescent tried to make a contract on February 6th with a tug boat captain, to tow her out, but was unsuccessful. She remained at the wharf frozen in until March 6th.

From January 31st to February 15th the Sutton could easily have gone to Belle Dock, as the main channel was kept open by the daily line of passenger steamboats. The owners of tug boats refused to take her to Belle Dock because Mr. Waterbury had requested them not to do so. Capt. Manson offered to go there and tender the cargo. Mr. Waterbury forbade his coming.

The Crescent was discharged at 2.20 A. M. on Thursday, February 5th. On February 4th Waterbury notified Manson that the Crescent would be discharged on the 5th and that he should want the Sutton on that day. On February 5th Manson saw Waterbury and told him if the Crescent got out he would go in. Waterbury replied that when the Sutton got in he would have the Crescent out. The captain declined to go in until a passage was clear and Waterbury declined to break the ice.

I make no finding in regard to a conversation which Mr. Waterbury and others say occurred on February 2d, which was to the effect that Manson asked for a birth at the Shop Dock and Waterbury told him to go up the channel and Manson declined to go till the Crescent was out of the way, because, in view of the conversation of January 81st, forbiding Manson to go up the channel, and of the fact that on February 2d Waterbury knew that the ice prohibited the vessel from goi.ng up until it was broken, and of the further fact that the condition of the ice was about the same on February 2d as on February 5th, when the Sutton could not get to the wharf by the use of reasonable means, the conversation was not in my opinion of importance.

The Sutton lay at the mouth of the Shop Dock channel until February 15th. Then an arrangement was made between the captain and consignee by which the cargo was delivered at Belle Dock to Williams, Wells & Co., who paid the freight and sold the coal, the captain retaining all his rights to claim demurrage and no claim of either party being waived, relinquished or admitted.

The vessel commenced discharging on February 16th, at one o’clock P. M., and was discharged on February 28d, about 9.15 A. M. If demurrage is to be allowed, it commenced on February 18th at 9.15 A. m. and is due for a period of ten days and amounts to $784.

Under the terms of the bill of lading the Sutton was obliged to discharge at that one of the docks of the consignee which, the latter might designate, provided the designated dock was accessible by the use of reasonable means by the shipowner and within a reasonable time. Nelson v. Dahl, 12 Ch. Div., 560. The selection of the place of discharge was with the consignee, and the shipowner was obliged to use reasonable means to reach it, one of such means being the employment of a tug, but if from physical or other causes the place was inaccessible, unless by the use of unreasonable means or by waiting an unreasonable time, the consignee should have designated one of his wharves which was accessible and convenient for the discharge of the cargo.

While this is true it is also true that under a bill of lading which requires delivery to be made at a named dock, arrival of the vessel at the dock is ordinarily a prerequisite to demurrage, and delays of the vessel within the port for a considerable time from accidents of navigation without the fault of the consignee, do not require him to receive the freight at another place than that named in the bill of lading. Aylward v. Smith, 2 Lowell, 192; Parker v. Winlow, 7 Ellis & B., 942; Bastifell v. Lloyd, 1 Hurlst. & C., 388; Hodgdon v. N. York, N. Haven & Hartford R. R. Co., 46 Conn., 277.

At the time of the arrival of the Sutton the Shop Dock was designated and was accessible by the aid of a tug and could have been reached without difficulty. But the consignee requested that the vessel should not proceed to the dock, but should wait at the mouth of the channel, three-fourths of a mile distant. If she had voluntarily waited at this point and had been frozen in, the case would present different features; but having waited there at the request of the consignee, and being unable on the 5th, when she was notified that she would be wanted, to obtain a tug to break the ice, and being prevented by the express direction and authority of the consignee from unloading at its accessible dock, the liability of the consignee for demurrage seems to me to be complete.

The accident of navigation which prevented the Sutton from reaching the Shop Dock was encountered by the direction of the consignee. If that dock had been accessible by the use of reasonable means when the Crescent had unloaded, the case would have been different, but it was then inaccessible, unless by the use of unreasonable means for an unreasonable time. The Belle Dock was accessible, but the consignee prevented the vessel from unloading there. The facts in Choate v. Meredith, 1 Holmes, 500, bear an analogy to the facts here. In that case the consignee’s wharf was inaccessible for an unduly long time by reason of ice and lack of sufficient water, whereupon the libellant took the vessel to the only accessible wharf in the port, notified the consignee, and offered to deliver the cargo, which offer was not accepted. The demurrage claimed was the same as in the bill .of lading in this case. It was held that the libellant was entitled to demurrage.

There should be a decree in favor of the libellants for $784, and interest from February 23d, 1885, and costs.

The case was appealed by the respondent to the Circuit Court, and was there argued by the same counsel. The principal part of the opinion in that court, affirming the decree of the District Court, is here given.

Wallace, J. (After stating the facts). The foregoing are the essential facts upon which the case turns. Demur-rage was allowed by the District Court for a period of ten days, commencing on February 13th, in the sum of $784. The appellant contends that the Sutton was under obligation to proceed to the Shop Dock, that being the place of delivery designated by the consignee, and that no liability for demurrage arises because she had not completed her voyage prior to February 16th, and was not prepared to make delivery of the cargo at the proper place.

The decision of the learned district judge recognized the rule that when a bill of lading designates a particular dock at the port of delivery where the cargo shall be discharged, the carrier can make no claim for demurrage for any detention arising from the state of the elements prior to the arrival of the ship at the particular place. His decision was placed upon the ground that under this bill of lading the consignee had the right to designate which one of the several docks constituting the Consolidated Road Docks named in the bill of lading, should be the place of discharge, provided the one selected was accessible to the Sutton within a reasonable time and by the use of reasonable means, and he held the consignee liable because the dock selected was at the time inaccessible and the detention arose without fault of the carrier and while the ship was waiting for an opportunity, pursuant to the instructions of the consignee, to get to the dock designated.

The decree below is not one of which the appellant can reasonably complain. If the libellants had appealed, they woidd have been entitled to recover one day’s demurrage more than was allowed by the District Court.

The law undoubtedly is that the obligation of the carrier is not alone to carry the cargo, but is in addition to deliver it at the place of discharge in the port of destination mentioned in the bill of lading; and the consignee incurs no liability for demurrage until such delivery is made or tendered. M’Intosh v. Sinclair, 11 Irish R. (C. L.), 456; Aylward v. Smith, 2 Lowell, 192; Parker v. Winlow, 7 Ellis & B., 942; Hodgson v. N. York, N. Haven & Hartford R. R. Co., 46 Conn., 277. It is equally well settled that where the bill of lading allows a given number of days to the consignee for unloading, a contract is implied on his part that, from the time when the ship is at the usual place of discharge, he will take the risk of any ordinary vicissitude which may occur to prevent the release of the ship at the expiration of the running days. Tiis v. Byers, 34 L. T. (N. S.), 526; Randall v. Lynch, 2 Camp., 352; Cross v. Beard, 26 N. York, 86. The place of discharge designated in this bill of lading was any one of the several docks of the consignee known as the Consolidated Road Docks; and there was no proof of any usage or custom by which any particular one of these docks was to be treated as the place of discharge.

Under this bill of lading the consignee had the right, and it was its duty, to designate a suitable place for the discharge of the cargo within twenty-four hours after notice of the ship’s arrival. This follows not merely from the fact that delivery of the cargo was to be made at any one of several docks belonging to the consignee, all of which ordinarily were equally convenient, or practically so, for the carrier; but because the peculiar phraseology of the demurrage clause implied that the parties to the bill of lading intended that the consignee should have twenty-four hours in which to select a suitable place of discharge after notice of the arrival of the ship. The Boston, 1 Lowell, 464. The bill of lading thus prescribes what time is to be deemed a reasonable time on the part of the consignee in which to provide a suitable place for the discharge of the cargo, and exonerates him from liability for any delay occurring during the period without his fault; but it also imports a promise on his part that the running days in which the vessel is to be discharged shall commence at the expiration of the twenty-four hours. Choate v. Meredith, 1 Holmes, 500. Any detention of the ship from that time, which occurs without the fault of the carrier, is at the risk of the consignee.

The court below adopted a view more liberal to the consignee. It is plain that until February 3d the master of the Sutton was ready to deliver his cargo, and could have made delivery at any one of the docks of the consignee; but the court found, and the proofs sustain the finding, that the master of the Sutton was induced to delay proceeding to the Shop Dock for the convenience of the consignee, and waited at a place as near that dock as he could get in pursuance of the instructions of the consignee until the ice prevented him from reaching it. He then offered to discharge at another of the docks named in the bill of lading, which was then accessible; but permission to do so was refused by the consignee. Under such circumstances it is not open to fair doubt that the consignee took the risk of any detention of the ship by vis major while it was waiting to get access to the Shop Dock. Tapscott v. Balfour, L. R.., 8 C. P., 46; Jones v. Adamson, 35 L. T (N. S.), 287. The consignee cannot be heard to allege that the master was in fault for complying with its own instructions, or that the libellants are in any different position than they would be in if the detention of the Sutton had occurred at Shop Dock after she had reached that place.

The decree of the District Court is affirmed, with interest and costs.  