
    THE PHILIPPINE TRADING CO. (Ltd.) v. THE UNITED STATES.
    [No. 26301.
    Decided April 1, 1912.]
    
      On the Proofs.
    
    The bill of lading of the Government’s freight, shipped by a quartermaster, contains the words “ no demurrage," but a contemporaneous telegram assures the owners of the vessel that the cargo will be unloaded “ promptly.” The Government’s officers at the port of delivery are guilty of unnecessary and unreasonable delay in not unloading the cargo.
    I.A bill of lading containing the words “ no demurrage," and a contemporaneous telegram from the consignor, a quartermaster, to the consignee, another quartermaster, directing him to “ 1)6 ready to unload promptly," may be taken together to constitute an agreement that reasonable diligence will be exercised in discharging the cargo.
    II.A shipper can not lawfully stipulate for exemption from responsibility for the consequences of his own neglect by writing into a bill of lading the words “ no demurrage.”
    
    III.An action can not be maintained for demurrage where the bill of lading says “ no demurrage." Nevertheless, an action for damages in the nature of demurrage may be maintained where the consignee has been guilty of unnecessary and unreasonable delay.
    
      The Reporters' statement of the case:
    The following are.the facts as found by the court:
    I. Claimant is a corporation organized under the laws of the Kingdom of Belgium, duly registered and lawfully entitled to transact business in the Philippine Islands* and having such corporate existence, rights, and powers during the period covered by the transactions described in the petition. Citizens, whether natural or corporate, of the United States have the right to bring and maintain actions against the Government of Belgium in the courts of that Kingdom. Claimant is the sole owner of the claim herein-sued on, no part thereof having been assigned to any person- or corporation.
    II. During the month of December, 1901, at Manila, P. I., plaintiff company agreed with the quartermaster in charge of the United States Army transport service to transport a cargo of coal form Manila to Zamboanga. In pursuance of said agreement 600 tons of coal were loaded on the plaintiff’s steamer, the Belgika, at Manila. After the coal had been put upon the steamer, plaintiff’s agent applied for a bill of lading for the transportation of said coal. When the bill of lading was presented it contained the words “ no demurrage.” Plaintiff company had had several other contracts with the defendants for the carriage of coal and for the discharge of the cargoes of said coal without any stipulation that demurrage should not be charged in cases where demurrage appeared to be a proper charge. When the bill of lading was presented to the plaintiff’s agent with the words “no demurrage” set forth therein, plaintiff’s agent protested and continued to protest against the language of the bill of lading, but finally accepted the same upon the assurance of the quartermaster at Manila issuing the bill of lading that the vessel would be unloaded promptly at Zam-boanga, and upon a telegram being (concurrently with the delivery of the bill of lading) sent to the quartermaster at Zamboanga, as follows:
    “ Manila, December 18,1901. •
    
    “ Sawtee, Quartermaster, Zamboanga:
    
    “ Belgika leaves here to-night with 600 tons coal for Zarm, boanga. As the rate is low and no demurrage, please be ready to unload promptly.
    “Aleshire, Major and Quartermaster.”
    III. The Belgika sailed from Manila in time to arrive at Zamboanga on December 22, 1901. But at the time of the arrival of the Belgiha at Zamboanga, on the date mentioned, the quartermaster was discharging coal from another vessel then in port by means of lighters, which were hauled out to the steamer by a rope passed from the dock to the4 vessel. Another ship was at the same time on the beach undergoing repairs. For these reasons the force at the port was not available for unloading the cargo of coal from the newly arrived Belgiha until the new year. Beginning January 2, 1902, the force in the employ of the United States at Zam-boanga began to discharge the cargo of the Belgiha, and the work of unloading that ship was continued until the close of the day of January 10, 1902, at which time all the coal had been taken off and the cargo completely discharged.
    IY. By reason of the working force at the port of Zam-boanga being necessarily employed in discharging coal from the other ship then in port (upon the arrival of the Belgiha December 22, 1901) up to the new year and because of the other part of the working force of the Government being necessarily employed in repairing another ship on the beach at the time of the Belgiha's arrival the Government could not begin the work of taking off any part of the cargo of the Belgiha until January 2, 1902, and the delay in beginning the work of unloading the cargo of the plaintiff’s vessel was unavoidable up to the time the unloading began.
    Y. The time ordinarily taken for unloading a vessel of coal of the carrying capacity of the Belgiha did not exceed four days, and there was unnecessary delay at Zamboanga in taking off the coal from plaintiff’s vessel after the expiration of four days from the time the discharge of the cargo commenced, which delay might have been avoided by the United States by ordinary diligence.
    VI. Plaintiff had, previous to the present contract, several other contracts with defendants for the carriage of coal between Manila and other points in the Philippine Islands, and the usual and customary time for the discharge of coal cargoes from its vessels of the size and carrying capacity of the Belgiha was as set forth in the preceding finding, and for any unnecessary delay the Government had paid demurrage at the rate of $200 per day.
    
      
      Mr. L. T. Michener for the claimant,
    
      Mr. TV. F. Norris (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   Howry, J.,

delivered the opinion of the court:

This is an action for the recovery of $2,800 as damages growing out of a claim for delay in unloading coal contracted by plaintiff to be carried for defendants from Manila to Zamboanga. Compensation is asked for the demurrage claimed under and by virtue of contract but accompanied with the statement that if the bill of lading did not truly and correctfy state the contract, or furnish complete evidence of the contract made between plaintiff and the United States, such bill of lading should be re-formed so that it should correctfy and truly represent the real agreement between the parties.

The findings sufficiently show the established ultimate facts to determine the matter of liability.

In Dayton v. Park, 142 N. Y., 393, Peckham, J., said for the court:.

“ Demurrage, technically so called, is founded upon some contract entered into between the consignor or freighter and the shipowner, which, under certain circumstances, is held to be assumed by the consignee. A delay beyond the time designated in the contract gives a cause of action in favor of the shipowner. Although it is said to be a claim in the nature of freight, yet it is perfectly distinct and separate therefrom.”

In the Federal courts of this country every improper de- ■ tention of a vessel whether occasioned by a collision or as the result of a breach of contract, express or implied, is considered as demurrage for which damages may be recovered whether they be liquidated or unliquidated damages. 5 Am. and Eng. Encyc. (1888), p. 542, and cases there cited.

In the present case there was nothing in the bill of lading fixing a certain number of days for unloading or stating the amount that should be paid for each day of delay beyond the ordinary day allowance for delay, but there was incorporated in the bill of lading, under the circumstances set forth in the findings, a statement excluding demurrage.

But these words were accompanied by' and with an agreement on the part of the quartermaster issuing the bill of lading binding as far as the said quartermaster could make such an agreement for the United States that the coal should be promptly unloaded upon arrival of the vessel at the point of destination. This arrangement took form in a contemporaneous telegraphic request to the quartermaster at Zam-boanga forwarded by the quartermaster at Manila to the effect that plaintiff’s vessel would leave that night with the coal for Zamboanga, and that, as the rate was low “ and no demurrage, please be ready to unload promptly.”

The court is of opinion that the bill of lading and the telegram together constitute the implied agreement of the parties that reasonable diligence would be exerted for the discharge of the cargo. The vessel was not unloaded promptly, and there was unnecessary and unreasonable delay, .which might have been avoided, for a period of five days.

Independent of the understanding and expectations of the parties growing out of the character of the bill of lading and the concurrent request by wire (for the coal to be unloaded promptly) as an agreement, the obligation was implied on the tender of the bill of lading by the quarter.master to plaintiff’s agent that the Government would not take its own time needlessly to delay a discharge of the cargo. Any such interpretation as would put a carrier to an indefinite period of delay in having his cargo discharged would be unreasonably harsh and unjust.

A common carrier can not lawfully stipulate for exemption from responsibility for the negligence of himself or his servants when such exemption is not just and reasonable. Railroad Co. v. Lockwood, 17 Wall., 357. Equally true does it seem that a person contracting with a common carrier can not lawfully stipulate for exemption from responsibility for the consequences of the shipper’s own neglect or that of his servants by writing into a bill of lading that there should be no demurrage.

Strictly and technically the case before the court is not for demurrage as that term is used in maritime law, but a claim for damages in the nature of demurrage. In such case we can see no reason why the Government should not respond in damages for the negligence disclosed by the findings any more than if the consignee appear to be a private shipper of coal.

There is fairly made out by the findings a just claim against the defendants for damages in the nature of demur-rage for five days at $200 per day.

Judgment will accordingly be entered for plaintiff for the sum of $1,000 against the United States.  