
    William D. Jameson, Appellant, v. Elizabeth Sweeney et al., Respondents.
    (City Court of New York, General Term,
    November, 1899.)
    1. ‘Ships and shipping — Owner may recover damages for delay, although there is no demurrage clause in the bill of lading.
    Although a bill of lading contains no demurrage clause, the" owner of the vessel may recover damages in the nature of demurrage for any unreasonable detention.
    
      Z. Same — Liability of consignor for delay in discharging cargo.
    The consignor is primarily liable to the owner of the vessel for an unreasonable delay in the discharge of the cargo after its arrival; and the question, whether the consignor or the consignee was bound to discharge, is one between them alone, which does not affect the right of the owner to be paid at once.
    Appeal by the plaintiff from a judgment, entered on the direction of the trial judge, dismissing the complaint. The action was brought by the owner of a canal boat to recover damages in the nature of demurrage, for unreasonable delay in unloading flagstones shipped under a bill of lading. The plaintiff claimed that the defendants, who had hired the boat for such transportation, had then agreed to unload it.
    Hyland & Zabristie, for appellant.
    J. J. Macklin (LeEoy S'. Gove, of counsel), for respondents.
   PiTzsnroNS, Ch. J.

Although the bill of lading omits a demur-rage clause, compensation in the nature of demurrage may be recovered by way of damages for any unreasonable detention of the vessel. Van Etten v. Newton, 15 Daly, 538; affd., 134 N. Y. 143.

The vessel, in this instance, was unreasonably delayed, and a liability followed.

The question is whether such liability rested exclusively on the consignee, as held by the trial judge, or whether the owner has an option to sue either consignor or consignee, as claimed by the appellant. The trial judge dismissed the complaint on the ground that, according to certain evidence in the case, the discharging’ of the cargo was to be done by the consignee, and that, consequently, he, and not the freighter or consignor, was liable for the delay. Assuming this to be a correct statement of the law applicable to such a state of facts, the difficulty is that there was a conflict in the evidence on that subject, the plaintiff having testified that the agreement was that the defendants were to load the stone and discharge it.” If that question was at all material to the issue as to liability, it ought to have gone to the jury that they might determine the dispute concerning it, and it was error to withhold the case from them. Apart from this, it was held in Shaver v. Gillespie, 46 N. Y. St. Repr. 772, by the late Court of Common Pleas, at General Term, that 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. 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.” Under the. rule laid down in this and kindred cases, it would seem that the freighter is liable for the demurrage caused by the delay in unloading, and that the question whether the consignor or consignee is to unload is a matter between them, which does not affect the rights of the owner or master of the vessel detained. We think the consignor became liable for the demurrage on the failure of the con-, signee to pay. The master did not agree to do the unloading, nor find a suitable place therefor, and seems to have been guilty of no neglect concerning the same.

It follows that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Cohlae and McCarthy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  