
    J. J. MOORE & CO. v. THE UNITED STATES.
    [No. 21450.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    The claimants, in San Francisco, contract “ to furnish and deliver” to the Quartermaster’s Department at Honolulu, ‘ ‘ delivered at the wharf, ’ ’ 3,900 tons of Australian coal. Also by another contract, to deliver “ about 5,000 tons;” “ deliveries to commence with a cargo of about 2,200 tons;” and the Quartermaster’s Department agrees to pay “/or 5,000 tons." This contract also provides that in case of failure to perform on the contractors’ part, the defendants “.shall have the power to supply deficiency by purchase in open marlcet” and charge the contractors with, “ the extra cost over contract price of any coal so procured." At Honolulu part of the coal is transferred to a United States vessel in the harbor; the remainder is unloaded on a wharf; but the harbor master compels the vessel to wait her turn before going to the wharf to discharge her cargo, which is the usage of the port. For the delay the claimants- have to pay de-murrage. After delivering on the 5,000-ton contract, 4,634 tons, carried by their own chartered vessels, the claimants purchase and tender the remaining. 366 tons. The defendants refuse to receive it. The contractors sell it at a loss.
    I.Where a contract, made in San Francisco, was to deliver coal "at the wharf” in Honolulu, and the vessel, without fault of the defendants, was detained by the harbor master in consequence of the crowded condition of the harbor, the movement of vessels in the harbor being subject to his control, the purchaser can not be charged with demurrage.
    II.A usage in San Francisco to pay demurrage in such a case can not control the terms of the contract.
    III. Where a contract reduced to writing is inconsistent with usage, the parties, it will be presumed, agree to waive usage. Usage is admissible to explain what is doubtful, but never to contradict what is plain.
    IV. Where the rights and liabilities of the parties to a contract are fixed by the general principles of the common law, they can not be changed by a local custom of the place where the contract is made.
    V.Where the vendors deliver two cargoes containing 4,634 tons and subsequently purchase and tender the remaining 366 tons, they can not recover their losses on the coal so tendered, if refused, upon a contract which is for the sale of 1 ‘ about 5,000 tons. ’ ’ Nott, Ch. J., dissenting.
    VI,Where the language of a contract is the vendor’s, it should be most strongly construed against him.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. Claimant is a loyal citizen of the United States residing at San Francisco, Cal., and is the owner of the claims in question, and has neither assigned nor sold them.
    II. Claimant is a commission merchant and entered into two several contracts with the defendant, duly signed, approved, and delivered, as follows:
    
      “ This agreement, entered into this twenty-first day of June, eighteen hundred and ninety-eight, between Lieut. Colonel J. W. Pope, chief quartermaster U. S. Vols., United States Army, of the first part, and J. J. Moore, trading under the firm name of and hereinafter designated as J. J. Moore & Co., of San Francisco, in the county of San Francisco, State of California, of the second part, witnesseth, that the said Lieut. Colonel J. W. Pope, chief quartermaster U. S. Volunteers, for and in behalf of the United States of America, and the said J. J. Moore & Co., for themselves do covenant and agree to and with each other, as follows:
    “Article 1. That the said J. J. Moore & Co., themselves, their heirs, executors, and administrators, agree to furnish and deliver, subject to the inspection of a duly appointed agent of the United States, to the quartermaster’s department of the United States Army at Honolulu, Hawaiian Islands, delivered at the wharf at the rate of not less than one hundred (100) tons per day, about thirty-nine hundred (3,900) tons of best merchantable ‘ Walsend ’ Australian steam coal, at twenty-two hundred and forty (2,240) pounds to the ton, dangers of the sea and any causes beyond their control excepted.
    “Article 2. Any alteration in present rate of duty to be for or against the purchaser.
    “Article 3. That deliveries on this contract shall commence on the arrival of the British ship Euterpe at Honolulu, on or about the twenty-third day of July, eighteen hundred and. ninety-eight; that deliveries on this contract shall, if required, commence on the --- day of -, eighteen hundred and -, provided that the agreement is approved by the proper authorities of the War Department; otherwise, not until such approval is obtained.
    “Article 4. That it is expressly agreed and understood that this contract shall be noneifective until an appropriation adequate to its fulfillment is granted by Congress and is available.
    “Article 5. That for and in consideration of the faithful performance of the stipulations of this agreement the parties of the second part shall be paid, at the office of the quartermaster, U. S. Army, who shall be designated by the Quartermaster-General, U. S. Army, at San Francisco, California, as follows: For thirty-nine hundred (3,900) tons of Wallsend Australian coal, more or less, at the rate of nine dollars ($9.00) per ton of twenty-two hundred and forty (2,240) pounds, in gold coin of the United States.
    “Article 6. That in case of failure of said parties of the second part to comply with the stipulations of this contract according to the true intent and meaning thereof, then the party of the first part shall have the power to supply deficiency by purchase in open market and to charge up against the party of the second part the extra cost over contract price of any coal so procured.
    “Article 7. Neither this contract nor any interest therein shall be transferred to any other party or parties, and in case of such transfer the United States may refuse to carry out this contract either with the transferer or the- transferee, but all rights of action for any breach of this contract by said J. J. Moore & Co. are reserved to the United States.
    ‘‘This contract shall be subject to approval of the Quartermaster-General U. S. A.1'
    “This agreement, entered into this twenty-third day of -June, eighteen hundred and ninety-eight, between Lieut. Colonel J. W. Pope, chief quartermaster U. S. Yols., United States Army, of the first part, and J. J. Moore, doing business under the firm name of and hereinafter designated as J. J. Moore & Co., of San Francisco, in the county of San Francisco, State of California, of the second part, witnesseth, that the said Lieut. Colonel J. W. Pope, chief quartermaster, U. S. Volunteers, for and in behalf of the United States of America, and the said J. J. Moore & Co., for themselves, do covenant and agree to and with each other as follows:
    “Article 1. That the said J. J. Moore & Co. agree to furnish and deliver, subject to inspection of a duly appointed agent of the United States, to the Quartermaster’s Department of the United States Army at Honolulu, Hawaiian Islands, delivered on wharf as customary, at a rate of not less than one hundred (100) tons per da3r, about five thousand (5,000) tons of best quality Australian Seaham, Wallsend, or Pacific Cooperative steam coals, at twenty-two hundred and forty (2,240) pounds to the ton, dangers of the sea and any causes beyond their control excepted.
    .“Article 2. Any alteration in present rate of duty to be for or against the purchaser.
    “Article 3. That deliveries on this contract shall commence with a cargo of about twenty-two hundred (2,200) tons of coal, to arrive at Honolulu, Hawaiian Islands, on or about the first day of October, eighteen hundred and ninety-eight, and to sail from Australia in about twenty-five (25) days after signing of this contract. That deliveries on this contract shall, if required, commence on the-day of-, eighteen hundred and -, provided that the agreement is approved b3r the proper authorities of the War Department; otherwise not until such approval is obtained.
    “Article 4. That it is expressly agreed and understood that this contract shall be noneffective until an appropriation adequate to its fulfillment is granted b3^ Congress and is available.
    “Article 5. That for and in consideration of the faituful performance of the stipulations of this agreement the parties of the second part shall be paid at the office of the quartermaster, U. S. Army, who shall be designated by the Quartermaster-General, at San Francisco, California, as follows: For five thousand (5,000) tons of Seaham, Wallsend, or Pacific Cooperative steam coals, as specified, the sum of nine dollars ($9.00) per ton of 2,240 pounds, in gold coin of the United States.
    “Article 6. That in case of failure of the said parties of the second part to comply with the stipulations of this contract, according to the true intent and meaning- thereof, then the party of the first part shall have the power to supply deficiency by purchase in open market and to charge up against the party of the second part the extra cost over contract price of any coal so procured.
    “Article 7. Neither this contract nor anj' interest therein shall be transferred to any other party or parties, and in case of such transfer the United States may refuse to carry out this contract either with the transferer or the transferee, but all rights of action for any breach of this contract by said J. J. Moore & Co. are reserved to the United States.
    “ This contract shall be subject to approval of the Quartermaster-General U. S. A. ”
    Preliminary to the making of said contracts the following .correspondence occurred:
    “SaN FraNoisco, Cal., June 13th, 1898.
    
    “Major W. A. Wadsworth,
    “ 'United States Volunteers.
    
    “Dear Sir: We beg to offer you, for reply on or before 3 o’clock to-morrow, the 14th inst., a cargo of about 1,600 tons of Wallsend Australian coal delivered at Honolulu, H. I., per British ship Euterpe (which sailed from Newcastle, N. S. W., for Honolulu about 10 days ago, and is therefore due to arrive in 30 or 40 days). The price to be ($9.00) nine dollars per ton of 2,240 pounds delivered at Honolulu. Payment to be made at your option in United States gold coin at Honolulu after discharge, or in this city in United States gold coin after receipt of certificate of delivery.
    “We also offer you a cargo of about 2,300 tons per Chilean ship Star of Italy (now in Australia and due to leave there in about 25 days), delivered at Honolulu at the same price, terms, and conditions as the Euterpe. Or this last cargo we will sell delivered at Manila, Philippine Islands, at ($12.75) twelve dollars and seventy-five cents per ton, and for this cargo payment can be made either in Manila or San Francisco in United States gold coin at your option in the same manner as described above on the Euterpe cargo.
    “Trusting to have the pleasure of securing the business,
    “We are, dear sir, yours, faithfully,
    “ J. J. Moore & Co.”
    
      ■ “P. S. — Both the Euterpe and Star of Italy are very fast sailers and can be depended on to make the voyage to Hono-' lulu in 45 to 50 days or to Manila in 35 to 45 days.
    “J. J. M. &Co.”
    “Headquarters U. S. Expeditionary Forces
    “and Department op Pacieic,
    “Oppice Assistant to Chief Quartermaster,
    “.Arne —, 1898.
    
    ‘ J. J. Moore & Co.,
    
      u San Francisco.
    
    “Gentlemen: Referring to your answer to advertisement for proposals for coal on June‘13th, I beg to inform you that I am authorized to accept the cargo of 1,600 tons in ship Euterpe and that of 2,300 per Star of Italy for delivery in Honolulu.
    “Will prepare contracts soon as possible.
    “Very truly, yrs.,
    “W. A. Wadsworth, Mag. and Q. MS'
    
    “Sax Francisco, Cal., Jwn,e21st, 1898. '
    
    “Colonel J. W. Pope,
    
      “Quartermaster-(General U. S. Vohmteers.
    
    “Dear Sir: We beg to offer you for reply on or before 4 p. m. Fr day next, the 24th inst., about 5,000 tons of Australian Wallsend, Seaham, or Pacific first-quality steam coals, to be delivered at Honolulu prior to October 1st, 1898, perils of the seas excepted. The price to be §9.00 (nine dollars) per ton of 2,240 lbs. (exclusive of duty, if any), to be delivered on wharf as customary.
    “ Payment to be in United States gold coin at San Francisco or Honolulu, at your option.
    “We are, dear sir, your obedient servants,
    “J. J. Moore & Co.’’
    “San FRANCISCO, Cal., June°2°2nd, 1898.
    
    “ Col. J. W. Pope,
    “ Quartermaster- General U. S. Volunteers.
    
    “Dear Sir: Referring to our offer to you yesterday of 5,000 tons of Australian coals at Honolulu, in connection therewith we now beg to substitute our offer bv guaranteeing the first vessel, with the capacity of about 2,200 tons, to sail from Newcastle, N. S. W., within 25 days after signing of contract. W e may further add that we expect the vessel to get away within 10 or 15 days, and ask for the extra 10 days only as á precautionary measure to guard against accidents.
    “We are, dear sirs, yours, faithfully,
    “J. J. Moore & Co.”
    "Headquarters U. S. Expeditionary
    “Forces and Departmekt of Pacific,
    “Office of Chief Quartermaster,
    
      “San Francisco, Gal., June®® cl, 1898.
    
    “J. J. Moore & Co.,
    
      “4-18 California St.. San Francisco, Gal.
    
    “Dear Sir: Replying to your letters of 21st and 22d insts., relative to 5,000-ton delivery of Seaham, Wallsend, or Pacific Co-op. Australian coal at Honolulu at $9.00 ton of 2,240 pounds, with shipment of 2,200 tons within 25 days of signing of contract, 1 have the honor to state that your offer is accepted, and contract will be drawm immediately.
    “Very respectfully,
    “J. W. Pope,
    
      u Lieutenant- Oolonel and Oldef Quartermaster,
    
    ' “ U. S. Volunteers, Chief Quartermaster.'''
    
    III. That at the respective times these contracts were made it was the custom at San Francisco between shippers and shipowners to insert in their charter parties a stipulation to the effect that cargoes wrere to be discharged as customary, in such customary berth or place as consignee shall direct, ship being always afloat, and at an average specified number of tons per weather working days (Sundays and holidays excepted), to commence when ship is ready to discharge, and notice thereof has been given by the captain in writing, and if detained over and above the said laying days, demurrage to be at 4d. register ton per day, which stipulation was duty inserted in the contract of the claimant with the ships employed by him to transport the coal mentioned in the contracts. It does not appear that the officers and agents of the defendant, who were authorized to make, and did make, the contracts for the defendant, had knowledge or notice of such custom, nor that the contracts or either of them were made in view of such custom.
    IV. The claimant discharged his said contracts as follows: The first contract: By the arrival at Honolulu of the ship Euterpe with 1,543 tons of coal, July 81, 1898, which was placed m berth at the wharf by the harbor master of said port August 8,1898, at 2.15 p. m., and commenced discharging coal at 3 p. m. same day, and finished August 29, 1898, consuming eighteen working days. If she had been discharged at not less than 100 tons per day, the time consumed would have been sixteen days. It does not appear that the defendant was at fault either in the loss of time in arriving at the wharf, nor in the discharge of the cargo afterwards. The court finds the defendant was able, ready, and willing to receive the cargo as rapidly as discharged at the wharf. The claimant paid to the shipowner $1,053.36 demurrage for these delays.
    
      The second contract: 1. By the arrival of the bark Harvester, with 2,179 tons of coal,'August 28,1898, at Honolulu, which was placed at a berth at the wharf by the harbor master September 16, 1898, and began discharging coal on that date, and completed' same October 7, 1898, a period of eighteen working days. It does not appear that the defendant was at fault in the loss of time of said last-mentioned ship in arriving at the wharf.
    2. By the arrival of the ship General Gordon at Honolulu, August 27, 1898, with 2,455 tons of coal. While at anchor, September 9,10, and 11, 330 tons were discharged into steamship Arizona, a transport of defendant, for its own use, after which the Gordon was placed at a berth at the wharf by the harbor master, September 14, at 1 p. m., and then commenced the further discharge of the cargo, completing the same October 4, no delays having occurred at the wharf. It does not appear the defendant was at fault in the ship’s delay in reaching the wharf. In the case of each ship the defendants had notice in writing of their respective arrivals within twenty four hours thereafter. The wharves at Honolulu are under the control of a harbor master. The practice of such harbor master was to assign ships to berths at the wharves in the order of their respective arrivals, and this practice was followed by him in respect to the ships mentioned. Claimant paid said shipowners for delays, $1,433.12 to the Harvester and $744.48 to the General Gordon. All coal delivered was paid for by defendant.
    V. The coal actually delivered under the second contract was 4,634 tons, completed October 7, 1898. About a month subsequent to this claimant purchased 366 tons of coal of the barkentine Omega, then in the Honolulu Harbor, and tendered the same to the defendant upon its contract of June 23, 1898) but the defendant refused to receive it, whereupon claimant sold the same in market, for the best price be could obtain, at $3.06i per ton less than $9, the contract price with the defendant, equivalent to $1,120.87 in all, and to his loss in that amount.
    VI. At the time of the delivery of the coal mentioned in the foregoing findings the Honolulu Harbor had 11 docks or wharves, 3 of which only were used for the discharge of coal. The docks were crowded, and several vessels were moored at the reef. By local regulation's of the Government, a harbor master had general supervision of all vessels in the harbor, and all vessels were anchored and assigned to berths, in the order of their arrival, by the harbor master. There were no lighters for public use, and defendant had none at the port, and it was usual or customary to discharge freight upon the wharves. The defendant had no authority over the wharves, and was subject to local regulations, and the order of the harbor master, the same as individuals.
    
      Mr. L. T. Miehener for the claimant:
    1. If a vessel is improperly detained, the owner may have a special action for the damage. (Abbott, Ship., 304; Horn v. Bensusan, 9 Car. & P., 709; Kell v. Anderson, 10 Mees. & W., 498; Evans v. Forster, 1 Barn. & Ad., 118; Olendaniel v. Tuoleerman, 17 Barb., 184.)
    Whether this be demurrage or not, the United States is liable in an action on the case for the damage resulting to the claimant by the improper detention of the ship no matter whether there was a contract or not, or whether the bill of lading or charter contained a stipulation for demurrage, lay days, or detention, or not. (1 Pars. Maritime Law, 263, n.; 1 Pars, on Shipping, 311; Kell v. Anderson, 10 M. & W., 498; Olendaniel v. Tuoleerman, 17 Barb., 184; Robertson v. Bethune, 3 Johns., 342; Sprague v. West, Abbott, Adm., 548; Horn v. Bensusan, 9 Car. & P., 709; Abbott (Lord Tenter-den) on Law of Ships and Seamen, 241; Maclachlan on Shipping, 545, 546.)
    
      2. An improper detention of a vessel, however occurring, whether it be for time lost in making the necessary repairs occasioned by a collision or as the result of a breach of contract, express or implied, is considered as demurrage, and damages may be recovered in an action brought eo nomine. This is a general rule. {The Apollon, Wheat., 378; Williamson v. Barrett, 13 How., 101; Sprague v. West, Abb. Adm., 548; The M. S. Baeon v. Erie d¡ W. Tramp. Co., 3 Fed. Rep., 344; Randall v. Lynch. 2 Camp. (N. P.), 352, opiuion by Lord Ellenborough.)
    The Comptroller of the Treasury has treated such claims as claims for demurrage.
    This case involves practically the law of demurrage, which this court, in Forbes v. The United States (10 C. Cls. R., 254), defined as follows:
    “In its technical and popular signification, demurrage is compensation for the delay of a ship in her employment or voyage.”
    The subject is well considered in the American and English Encylopedia under the title “Demurrage;” and there is this definition at the beginning of the article. (The Apollon, 4 Wheat., 362, 378; 8 Kent’s Com., side p. 203; Maclachlan on Merchant Shipping, 541.)
    See generally: 1 Pars., Maritime Law, 261; Abbott on Ships, 241; 1 Parsons on Shipping, 310; Maclachlan on Shipping, 545; Destj^ on Shipping, sec. 246; 3 Comp. Dec., 338-348 (1897); 5 Comp. Dec., 305-309 (1898).
    3. That the United States is liable for demurrage is not only settled by the Forbes case (10 C. Cls. R., 248), but it is actually acknowledged and payment has been enforced by the Comptroller of the Treasury in numerous cases. (See 2 Comp. Dec., 179; 3 ib., 337; 6 ib., 175; 7 ib., 573.)
    4. What is a lay day? Chancellor Kent says: “ Being the days allowed to load and unload the cargo.” (3 Kent’s Com., side p. 203.)
    To the same effect are: 1 Parsons Maritime Law, 261; Abbott on Ships, 241-243; 1 Parsons on Shipping, 310; Mac-lachlan on Shipping, 546; Desty on Shipping, 246.
    This rule, and the reasons underlying it, are considered at length in W. R. Grace & Co. (3 Comp. Dec., 336, 1887); also in the opinion of Assistant Comptroller Mitchell (5 Comp. Dec., 305, 1898), and in the elaborate opinion rendered by him March 23, 1901, reported 7 Comp. Dec., 573.
    “Fractions of a day count for a day” in demurrage as in other aspects of the law. (Maclachlan on Shipping, 551; Abbott on Shipping, 21-3.)
    5. Lay daj^s begin to run on the arrival of the vessel at the entrance of her dock, or other place of discharge, and not when she has merely reached the port of delivery. Where notice of arrival was given to the consignee, the lay days begin to run after the time specified in the bill of lading. (Desty on Ships, 216; Abbott. (Lord Tenterden) on Law of Ships and Seaman, 213.)
    6. In Maclachlan on Merchant Shipping, page 516, it is said:
    “Usually the contract of affreightment fixes in express terms the number of lay days and the number of days for the ship on demurrage; or it does the same thing indirectly— e. g.. by stipulating to load or discharge so many tons a day, or with the usual dispatch of the port, and the iike. But if it is omitted to ascertain the lay days, the law implies a stipulation for a reasonable time considered with reference to the trade and the port the vessel is in. * * •* The law will then imply, it may be, a contract or covenant not to detain the.ship longer than such reasonable or fixed time for loading or discharging, or longer than the time fixed for demurrage, entitling the owner to reasonable damages for such detention, notwithstanding it be occasioned by the crowded state of the docks, the state of the weather, * * * in fact, whenever the detention is not attributable to the shipowner or his agent. ”
    “I am of opinion,” said Lord Ellenborough, “that the person who hires a vessel detains her, if at the end of a stipulated time he does not return her to the owner.” (Rcmdall v. Lynch, 2 Camp. (N. P.), 354.)
    7. Again, in Maclachlan on Shipping, page 550, it is said:
    ‘ ‘ A stipulation to load and discharge so many tons a day, or so fast as the ship can work, or the like, indicates that the fixed period of the days which follow consists of working days only.”
    (The author cites Commercial Steamshij) Co. v. Boulton (L. R.), 10 Q. B., 1046; Maclachlan, p. 551.)
    
      The rule is that although the number of lay days may not be specified in the charter party, yet, if they may be arrived at by reason of the rate of discharge having been fixed in the charter party and the tonnage of the cargo being known, they must be treated as being as definite as if specifically stated. (3 Comp. Dec.., 345, 346, 1897; WilUamsY. Theobald, 15 Fed. Rep., 471; Scmguvnette v. P. S. Wav. Co. (L. R.), 2 Q. B. Div., 238.)
    This case is quoted with approval in 3 Comp. Dec., 346 (1899).
    8. The charter parties now before the court are very clear and explicit. It would be difficult to make the language plainer.
    In Williams v. Theobald (15 Fed., 468), it is said:
    “It is also settled that where the contract specifies a certain number of days for loading and unloading and provides that for any detention beyond the lay days demurrage is to be paid at a fixed rate per day, the shipper is held very strictly to its terms, neither a municipal regulation of the port prohibiting the unloading for a limited period, nor delay occasioned by frost, tempest, or by the crowded state of the docks will relieve him from the payment of demurrage. Randall v. Lynch, 2 Camp. (N. P.), 352.”
    This language is quoted with approval by the Comptroller of the Treasury in 3 Comp. Dec., 344 (1897).
    9. It is further settled that the exception of Sundays and legal holidays from lay days does not apply to demurrage days, and the contractors are entitled to demurrage for every day’s detention after the expiration of the lay days. (Oliver on Shipping, 4; Scrutton on Charter Parties, 234.)
    5 Comp. Dec., 307 (1898). The learned Comptroller there approves of the decision of the court in Lindsey v. Cusimano (12 Fed. Rep., 503, 504), in which it was held that the exception of such days from lay days does not extend to demurrage days. The same rule was stated in Licmg v. Holloway, 3 Q. B. Div., 437; Hull v. Cargo of Pig Tron, 37 Fed. Rep., 124; The Glmfinlas, 42 Fed. Rep., 232.
    10. In 1 Parsons on Shipping, 313, the noted author, in speaking of the time when lay days begin to run, said:
    “The parties may, however, stipulate as they please about the time when they shall commence. And it sometimes depends upon the usage of the port. Usage, however, can not be permitted to vary the express terms of the contract” (Also 5 Comp. Dec., 306 (1898).)
    The liability of the parties may of course be changed by special terms inserted in the contract. ' (Oglesby v. Yglesias, 27 L. J. Q. B., 356; Pederson v. lotinga, 28 L. T., 267.) No custom of the port will be permitted to override an express stipulation limiting the time of discharge. {Fish v. 150 Tons of Brown Stone, 20 Fed. Rep., 202.) When there is no special contract, the usage of the port in respect to the reception and delivery of cargo is frequently a matter of material consideration. {Blwen v. New England Screw Co., 23 How., 431 (16,513).) The parties having contracted on the subject of the delivery of the cargo and lay days, evidence of a contrary usage at the port of Honolulu is noG admissible. (Maclachlan, p. 402.) Proof of usage is admitted either to interpret the meaning of the language of the contract, or to ascertain its nature and effect, in the absence of express stipulation, if the meaning be equivocal or obscure. {The Reeside, 2 Sumn, 569.)
    There is nothing equivocal or obscure about the contracts in the case at bar, therefore they must prevail.
    At the time of entering into this contract the usage and custom of shipowners, shippers, commission merchants, freighterers, and charterers at the port of San Francisco, when executing charter parties, was to make them contain stipulations concerning the discharging of the cargo, in such berth or place as the consignee should direct, at the average rate of not less than the number of tons that might be specifically prescribed for each working day, to commence when the ship was ready to discharge and notice of arrival had been given by her captain, and if detained beyond the laying days, demurrage should be paid at some specific amount per ton or per day.
    Whatever the custom may have been in the harbor of Honolulu, the contract between the parties must prevail. This proposition is too clear for argument. It is always and everywhere true that contract prevails over custom.
    The fact that the Government was unable to or did not find berths or docks for the ships in due season will not relieve it from the obligation to pay the demurrage.
    
      If there was a regulation of the port, of Honolulu which in any way delayed, or interfered with, or prevented the discharge of the cargoes in any degree, such regulation cannot prevail over the contract or release the United States from the obligation to pay demurrage.
    
      Mr. P. M. Ashford (with whom was Mr. Assistant Attorney^ O-eneral Pradt) for the defendants.
   Wright, J.,

delivered the opinion of the court:

Claimant is a commission merchant and entered into two several contracts with the defendant, one June 21, 1898, the other June 23, 1898, by the first of which he sold and undertook to deliver about 3,900 tons of coal to the Quartermaster’s Department of the United States Army at Honolulu, Hawaiian Islands, to be delivered at the wharf at the rate of not less than 100 tons per day, 2,240 pounds to the ton, the delivery under the first contract to commence -on the arrival of the British ship Euterpe at Honolulu, on or about July 23, 1898, for which defendant agreed to pay $9 per ton. By the second contract claimant sold and undertook to deliver at Honolulu, on wharf, as customary, at a rate not less than 100 tons per day, about 5,000 tons of coal, at 2,240 pounds to the ton, the delivery on the second contract to commence with a cargo of about 2,220 tons, to arrive about October 1,1898, to sail from Australia about twenty-five days after signing the contract, for which defendant agreed to pay $9 per ton. Prior to making the contracts, and as a preliminary step to their execution, claimant had submitted proposals in which the quantity subsequently specified on the first contract was segregated as about 1,600 tons, to be shipped on the Euterpe, and 2,300 tons upon another vessel; and in respect of the second contract to be shipped in a vessel with a capacity of about 2,200 tons, to sail from Newcastle within twenty-five days, and the residue to be shipped otherwise, and from these propositions the contracts were evolved, introducing into them the language of claimant’s propositions, “about 3,900 tons,” and “about5,000 tons,” respectively.

At the time the contracts for coal were made it was a custom . at San Francisco, where they were entered into, for shipowners to insert in their charter parties a stipulation to the effect that cargoes were to be discharged in such customary berth or place as consignee shall direct, ship always being afloat, at an average specified number of tons per day, to commence when ship was ready to discharge and notice thereof had been given to the consignee. If the ship should be detained beyond the lay days so provided, a stipulated sum was to bo paid by the «shipper as demurrage. Such stipulations were inserted in the contract of shipping between the claimant and the shipowners he employed to transport the coal in question, but it does' not appear that the officers or agents of the defendant who made the contracts had knowledge or notice of such custom, nor that the contracts, or either of them, were made in view or contemplation of such custom.

The harbor at Honolulu was under the control of a harbor master at the time of the arrival of the several ships containing the coal designed for delivery to the defendant in conformity to the contracts in question, and all ships were assigned places at the wharf, in the order of their arrival, by such harbor master. Although defendant was notified of the arrival of the ships in the harbor, there was delay in reaching a wharf where the cargoes were to be discharged, but such delay was not the fault of the defendant, nor the consequence of negligence on its part, but resulted from the crowded condition of the harbor, the wharves then being occupied by vessels that had previously arrived, and assignments of claimant’s ships to a wharf were made by the harbor master as soon as room could be provided for them, in conformity to the usage of the port. After the arrival of some of the vessels at the wharf, the cargoes were not discharged as rapidly as the contracts required, but it does not appear defendant was at fault in this particular, but it does appear it had then the ability and was ready and willing to receive and dispose of the cargoes as rapidly as the ships would discharge them at the wharf. For these various delays of the ships, beyond the lay days stipulated in the charter parties between claimant and the shipowners, the latter preferred claims for demurrage as provided in the shipping contracts, which the claimant paid, and in this suit seeks to recover of the defendant the several amounts of demurrage by him so paid.

The two shiploads of coal under the contract of June 23 fell 366 tons short of 5,000 tons, and a month after tlie last load was delivered, the claimant, to make up this deficiency, purchased the shortage in the harbor and offered to deliver the same to defendant, but the latter refused to accept it, whereupon the claimant sold it in open market for the best price he could obtain, which fell short of the contract price with defendant, and this item of difference is also included in this suit, claimant insisting upon a right of recovery.

In support of his insistence of his right to demand of the defendant payment of the demurrage paid by him, claimant contends that defendant was bound bj" the custom at San Francisco relative to the stipulations contained in the charter parties, and consequently, in that regard, by thé charter parties also.

By his contracts with the defendant claimant undertook to deliver the coal at the wharf, and at the wharf as customary, at not less than the stipulated rate per day. By the plain terms of the contracts the claimant had as effectually obligated himself to take the coal to the wharf as he had to cross the sea. There is no ambiguity in the contract in this respect, and it needs no interpretation or construction upon this point, and as the actual terms employed in a written contract afford the most certain and determinate evidence of the intentions of the parties, usage is not admissible to contradict or supersede the positive and definite provisions secured thereby (Bliven v. N. E. Screw Co., 23 Howard, 431), but only to explain whatever is indeterminate in their expression. Besides, the presumption is that when the terms of a contract are reduced to writing, and are inconsistent with usage, the parties agree to waive the usage. (Story on Contracts, 649 et seq.) It is not admissible, by showing usage, to add to or engraft upon the contract new stipulations, nor to contradict those which are plain. (Oelricks v. Ford, 23 Howard, 63; Insurance Cos. v. Wright, 1 Wall., 471; Hearne v. Insurance Co., 20 Wall., 492; National Bank v. Burkhardt, 100 U. S., 692.) At most, it can only be said of the custom at San Francisco to insert certain stipulations in the charter party concerning lay days and demurrage, and the obligation of consignee to supply wharfage, that it was a local custom or usage, and relative to such a usage the Supreme Court said in Barnard v. Kellogg (10 Wall., 390):

“The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties know of its existence and contracted with reference to it.' It is often employed to explain words or phrases in a contract of doubtful signification or which may be understood in different senses, according to the subject-matter to which they are applied. But if it be inconsistent with the contract or expressly or by necessary implication contradicts it, it can not be received in evidence to affect it. ‘Usage,’ says Lord Lyndhurst, ‘may be admissible to explain what is doubtful; it is never admissible to contradict what is plain.’ And it is well settled that usage can not be allowed to subvert the settled rules of law. Whatever tends to unsettle the law and make it different in the different communities into which the State is divided leads to mischievous consequences and embarrasses trade and is against public policy. If, therefore, on a given state of facts, the rights and liabilities of the parties to a contract are fixed by the general principles of the common law, they can not be changed by any local custom of the place where the contract was made. * * * ‘A contrary doctrine,’ says the court in Thompson v. Ashton (14 Johnson, 317), ‘would be extremely pernicious in its consequences and render vague and uncertain all the rules of law on the sale of chattels.’”

It follows, therefore, from the views we have expressed, that claimant undertook the burden of delivering the coal at the wharf, and at the wharf as customary, and that the only custom the contract related to was such as prevailed at the port of delivery, and there it Avas n'ecessary to the due performance of the terms of his contract to arrive at the wharf, and the intervening delays, without fault of the defendant, were as the common incidents of the voyages, the losses in consequence of which he possesses no right of action against the defendant. Relative to the failure of some of the ships to discharge cargo as rapidly as the contract required after reaching the wharf, it does not appear this was the fault of defendant, and for the increase of lay days so occasioned there is no remedy. If fault there was, it was that of the shipmaster.

Neither was defendant bound to accept the 366 tons of coal purchased by claimant in the harbor a month after the delivery of the last ship cargo. The language, “ about 6,000 tons,” was that of the vendor, he having introduced it into the contract, and should be most strongly construed against him. (Chitty on Contracts, 136 and notes.) What was meant by the contract in this respect was that the claimant proposed to and did sell two shiploads of coal, the ships having the combined capacity of about the quantity of coal specified. Such, clearly, was the intention of the parties to the contract. (Brawley v. United States, 96 U. S., 171.) The two ships arrived and their cargoes were delivered, and so the contract was fully executed before the 366 tons were purchased or offered.

From the views we have expressed it follows the petition should be dismissed, and it is ordered accordingly.

Nott, Ch. J.,

dissenting:

There were two sets of correspondence eventuating in two contracts between the parties in this case. In the first correspondence the parties negotiated for the sale and purchase of two cargoes of coal on two designated vessels containing in the aggregate about 3,900 tons. In the second correspondence and contract they agreed upon the sale and purchase of “about 5,000 tons.” It was also stipulated in the contract that the obligation of the purchaser should be to pay “for five thousand (5,000) tons” without any qualifying words, such as “more or less” or “about.” The only reference to a cargo in this contract is that “ deliveries on this contract shall commence with a cargo of 2,200 tons.”

As regards the refusal of the defendants’ officer to receive 366 of these 5,000 tons because the quartermaster department had more coal in Honolulu than was wanted, and the qualifying word of the quantity'to be delivered, “ about,” the case comes under the decision of this and the Supreme Court in Brawley’s Case (11 C. Cls. R., 522; 96 U. S. R., 168). The English decisions have been stricter than the American in the latitude allowed to such qualifying words, but undoubtedly the more just as well as liberal ruling of the Supreme Court is the right one — that they extend onty to “ accidental variations ” from the precise quantity agreed upon in the contract. These qualifying words are generally employed for the pro tection of the vendor, the difficulty of delivering the precise quantity being on him; and the question generally before a court is whether a vendor did all that could be reasonablj" required of him within the intent of the parties when they made the contract, or whether he is trying to evade its obligations. Certain it is that no court ever held that a purchaser could avoid accepting the precise quantity named in his contract by invoking the words “more or less” and “ about.”

The contract in this case provides that if the party of the second part — the vendors — should fail to comply with their stipulations, “then the party of the first part shall have the power to supply deficiency by purchase in open market and to charge up against the party of the second part the extra cost over contract price of any coal so procured.” If the circumstances had been reversed — if the vendors had failed to procure and tender the “deficiency” — and the quartermaster had gone into the market and purchased coal at rates above the contract price, unquestionably it would be held, as has been held in a hundred cases, that the claimant was bound to deliver 5,00,0 tons of coal. In the homely language of common sense, “it is a poor rule that won’t work both ways.”

My conclusion is that the claimants should recover for their loss on the 366 tons of coal tendered and refused.  