
    Ambrose Van Etten, Pl’ff and Resp’t, v. George B. Newton et al., Def’ts and App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3, 1889.)
    
    1, Demurrage for detention of canal boat—When recoverable.
    A freighter is liable to the vessel for any unnecessary detention in loading or unloading, although no express contract is made on the subject; reasonable promptitude in delivering a cargo at its point of shipment, and receiving it at its place of destination, is a duty implied in such contracts, and for a violation of it damages, in the nature of demurrage, are recoverable.
    2. Measure of damages in cases of demurrage.
    The amount to he allowed for the detention of a vessel, is the value of her use''; and evidence of the expenses of the voyage, and the time it has taken, including the loading and unloading, is competent to show the net value of the vessel per day.
    Appeal from a judgment entered in the district court of the judicial district of the city of New York.
    
      E. D. McCarthy, for app’lts; Hyland & Zabriskie, for resp’t.
   Larremore, Ch. J.

This was an action to recover damages in the nature of demurrage for seven days detention of plaintiff’s canal .boat, J. M. Burt,” at Perth Amboy, New Jersey, while waiting there for a cargo of coal."

The order was given to the plaintiff on May 8, 1888, and the canal boat arrived at Perth Amboy on the same day, but it was not loaded until May seventeenth, except that eighty tons of the cargo were placed in her on May fifteenth.

Plaintiff bases his action: First, for a violation by defendants of their implied contract to load the boat within a reasonable time; second, for a violation of their express contract to load her on May tenth; and third, for a failure to load her on the fifteenth after they had commenced to load her and had placed eighty tons of coal in her. It was admitted by the defendants that the boat could have been loaded in five hours if the cargo had been there. Plaintiff testified it would take from three to five hours. Mr. Uhler, the shipping agent of the defendants, testified:

Q. When Captain Van Etten came to you on May eighth, did he not state that his steamer would be loaded on the tenth ? A. He may have done so, I don’t remember.

Q.. Did he not say his steamer was going to the same place that the boat was consigned to? A. He may have.

Q. Did he not say that he did not want to detain the steamer that would be loaded by the tenth, to wait for & cargo on the canal boat? A. He did.

The canal boat was a consort to the steamer, which waste tow it to its place of destination.

It seems reasonably certain that the delay from the eighth to the seventeenth was an unjust and improper delay, for which the defendants are liable. Aside from the implied contract to load the boat within a reasonable time, the plaintiff swears that the defendants agreed to load his-boat by Thursday, May tenth, as before stated. Even in the absence of such an agreement, plaintiff would be entitled to recover demurrage for the same number of days, for the reason that he allowed the defendants three days to-load the boat, which could be loaded in from three to five-hours, and any detention beyond" these three days would necessarily be unjust, for which the plaintiff could recover.

The freighter is liable to the vessel for any unnecessary detention in loading or unloading, although no express contract is made on the subject. Sprauge v. West, Abb. (Ad., 548), 555; M. S. Bacon v. The Erie and Western Trans. Co., 3 Fed. Rep., 344.

In the latter case it was held “that an express stipulation for demurrage in the contract of affreightment, is not-necessary to entitle the owner of a vessel to compensation for her unnecessary or improper detention in loading or unloading; reasonable promptitude in delivering a cargo at its-point of shipment and receiving it at its place of destination, is a duty implied in such contracts, and for a violation of it, damages in the nature of demurrage are recoverable.”

These cases dispose of the question raised by the defendant’s counsel that an action for demurrage cannot be maintained without a special contract.

Fisher et al. v. Abeel (66 Barb., 381) holds: “Where no-time is fixed for loading or unloading, it is to be done in a reasonable time, and what constitutes a reasonable time is-for the jury. Although there is no express agreement for demurrage, damages in the nature of demurrage may be recovered against the owner of the cargo when lie improperly detains the vessel beyond a reasonable time for loading or unloading.

The original shipper of goods upon a boat or vessel for transportation under an ordinary bill of lading or its equivalent, remains liable to the master for freight-money earned, although the latter delivers consignment without exacting-payment for carriage of the consignee. This is so, although the consignee offers to pay the freight, which the-master refuses to receive. Gilson v. Madden, 1 Lans., 172.

In the case of Rackett v. Stickney (23 Blatch., 566), notwithstanding a printed clause indorsed on the order for shipment, ‘ ‘ that no liability for demurrage or other charges, shall be incurred by (the defendants), the cargo, or com signee thereof, for any delay in the loading, to be borne by the vessel or boat,” that court held that the clause was not-binding upon the plaintiff, but that he could recover damages for the improper delay at the shipping port.

It is quite evident that the defendants are, at least, liable for the detention of the boat from May 15th to May 17th. This showed an improper detention of three-days, and plaintiff swears that the canal boat in question at that time was worth twenty dollars a day. It might also be inferred from the evidence that the boat was improperly detained seven days in loading over and above a. reasonable time ; also that the defendants violated their express contract with the plaintiff to load the boat on May 10th. The judgment rendered was for about half the amount sued for, and appears to be a moderate sum for the damages which the plaintiff sustained by r,eason of the defendants’ acts.

In the Case of James A. Dumont (34 Fed. Rep., 428), it was held that the amount to be allowed for the detention, of a vessel is the value of her use; and evidence of the expenses of the voyage, and the time it has taken, including the loading and unloading, is competent to show the net value of the vessel per day.”

The judgment appealed from should be affirmed, with, costs.

Allen, J., concurs._  