
    JOHN ROSENFELD’S SONS v. THE UNITED STATES.
    [No. 21466.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    The contract and the facts relating to demurrage are the same as those in the preceding case of Moore & Co., except that in Moore & Co. the contract was for delivery “at the wharf" and in this case “from vessel’s tackles.” There wereno public lighters at Honolulu at the time, and the Government had none in that harbor, and it was customary to discharge freight upon the wharves.
    The case is governed by the reasons of the court in the preceding case of Moore & Co., Noü, Ch. J., dissenting.
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the • court:
    I. Claimant is a corporation and 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 a contract with the defendant, duly signed, approved, and delivered, as follows:
    “This agreement entered into this twentieth day of June, eighteen hundred and ninety-eight, between Lieut. Col. J. W. Pope, chief quartermaster U. S. Vols., United States Army,' of the first part, and John Rosenfeld’s Sons, a corporation duly organized under the laws of the State of California, of San Francisco, in the count,y of San Francisco, State of California, of the second part,
    “Witnesseth, that the said Lieut. Col. J. W. Pope, chief quartermaster U. S. Volunteers, for and in behalf of the United States of America, and the said John Rosenfeld’s Sons, do covenant and agree to and with each other as follows:
    “Article 1. That the said John Rosenfeld’s Sons, its successors and assigns, agree to furnish and deliver, subject to the inspection of a duly appointed agent of the United States, to the quartermaster’s department U. S. Army at Honolulu, Hawaiian Islands, from vessel’s tackles at rate of not less than one hundred and fifty (150) tons per day, about nine thousand (9,000) tons of best merchantable Nanaimo British Columbia 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.
    “Art. 2. Any alteration in present rate of duty to be for or against the purchaser.
    “Art. 3. Thafdeliveries on this contract shall commence on or about the first day of July, eighteen hundred and ninety-eight, provided that the agreement is approved by the proper „ authorities of the War Department; otherwise not until such approval is obtained.
    “Art. 4. That it is expressly agreed and understood that this contract shall be noneffective until an appropriation adequate to its fulfillment is granted by Congress and is available.
    “Art. 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: Nine thousand (9,000.) tons, more or less, of Nanaimo steam coal, at the rate of seven and one-half dollars ($7.50) per ton, of twenty-two hundred and forty (2,240) pounds, in gold coin of the United States.
    “Art. 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, parties of the second part the extra cost over contract price of any coal so procured.
    “Art. 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 John •Rosenfeld’s Sons 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 such contract claimant sent to the defendant the following letter:
    ‘ ‘ SáN FRANCISCO, June IS, 1898.
    
    “W. A. Wadsworth,
    “Majen■ and Quartermaster,
    “ u. 8. Vols., Sam Fra/neisco.
    
    “ Dear Sir: In accordance with your advertisement for proposals for furnishing coal, we beg to offer the following:
    “We will deliver at Honolulu, Hawaiian Islands (dangers of the seas and any cause beyond our control excepted), 1, 2, or 3 cargoes of Nanaimo (British Columbia) coal, one or all of these cargoes, as you may decide, consisting of from about 1,800 to 2,600 tons each, at seven dollai’_s and fifty cents ($7.50) per ton of 2,240 pounds each, deliverable from vessel’s tackles, and coal to be received from ship at rate of not less than 150 tons per day.
    
    “The vessels would all be loaded this month, or early next, and should all arrive at Honolulu next month.
    -X* *Xr *• -X- ¥r * *• *X-
    “ Very respectfully,
    “John Rosenfeld’s Sons.”
    III. That at the time this contract was 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 were to be discharged as customary, in such customary berth or place as consignee shall direct, ship being always afloat, and at average specified number of tons per weather-working dajTs (Sundays and legal holida}^ 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 paid at some specified amount per register ton per day, which stipulation was duly inserted in the contracts of the claimant with the ships employed by it to transport the coal mentioned in the contract. For the Sea King, $75; C. F. Sargent, $80; J. 11. Brown, $75. It does not appear that the officers and agents of the defendant, who were authorized to make, and did make, the contract for the defendant, had knowledge or notice of such custom, nor that the contract was made in view of such custom.
    IY. The claimant discharged its said contracts as follows:
    1. By the arrival at Honolulu of the bark Sea King with 2,393 tons of coal, August 1, .1898, which was placed in berth at the wharf bj" the harbor master of said port, August 12, 1898, commenced discharging coal, and finished September 2, 1898, consuming nineteen working days. If she had been discharged at not less than 150 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 after-wards. The claimant paid to the shipowner 8600 demurrage for these delays.
    2. By the arrival of the ship C. F. Sargent with 2,789 tons of coal, August 3, 1898, at Honolulu, which was placed at a berth at the wharf by the harbor master, August 18,1898, and began discharging coal on the following day, and completed same September 16,1898, a period of twenty-five working days. If she had been discharged at not less than 150 tons per day the time consumed would have been nineteen 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, nor in the discharge of the cargo afterwards.
    3. By the arrival of the ship J. B. Brown, at Honolulu, September 19, 1898, with 2,441 tons of coal, and was placed at a berth at the wharf bjr the harbor master, October 6, and then commenced the discharge of the carg'O, completing' the same October 25, 1898. Had the ship been discharged at not less than 150 tons per day, the time consumed would have been seventeen days. It does not appear the defendant was at fault in the ship’s delay in reaching' the wharf, nor in the discharge of the cargo afterwards.. In the case of each ship the defendants had notice in writing of their respective arrivals within twenty-four hours thereafter. The court finds the defendant was able, ready, and willing to receive the cargoes as rapidly as discharged at the wharf. 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, $1,040 to the C. F. Sargent, and $825 to the J. B. Brown. All coal delivered was paid for by defendant.
    V. 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 sevei’al vessels wore moored at the reef. By local regulations 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. P. Michener for the claimant.
    
      Mr. P. M. Ashford (with whom was Mr. Assistant Attorney - General Pradt) for the defendants.
   Weight, J.,

delivered the opinion of the court:

Claimant is a commission merchant and entered into a contract with the defendant June 20, 1898, by which it sold and undertook to deliver about 9,000 tons of coal to the quartermaster’s department of the United States Army at Honolulu, Hawaiian Islands, to be delivered from the vessel’s tackles, at the rate of not less than 150 tons per day, 2,240 pounds to the ton, the delivery to commence on or about July 1, 1898, for which defendant agreed to pay $Y. 50 per ton. Prior to making the contract, and as a preliminary step to its execution, claimant had submitted a proposal in which the quantity subsequently specified on the contract was segregated to be contained in one, two, or three cargoes of from about 1,800 to 2,600 tons each, and from this proposition the contract was evolved, introducing into it the language of claimant’s proposition, about “9,000 tons.”

In all essential features this case is like John J. Moore, trading as John J. Moore & Co., v. The United States, in which we have, in an opinion, given our reasons for the decision of the court, to which we refer without repetition here. The difference between the contracts in that case and this one is, that in the present case the coal was to be delivered from the vessel’s tackles. At the port of Honolulu it was not possible to deliver the cargo from the vessel’s tackles, or otherwise, without first arriving at the wharf. Claimant plainly undertook to deliver the cargo to the quartermaster’s department, United States Army, at Honolulu. This it could not do in the water, for the quartermaster’s department was on land, nor until arrival at the wharf, where the quartermaster was to receive it, and hence it was clearly its -obligation to deliver the coal upon the wharf, as it did. The petition will be dismissed.

Nott, Ch. J.,

dissenting:

It is a universal principle and practice in commerce that the consignee must be ready to receive the freight. All contracts of affreightment must be construed in the light of that general principle, and if the charterer wishes. to avoid it he must secure exemption by an express provision in his agreement.

In the preceding case of Moore & Co. the contract was specific to deliver at the wharf. It bound the shipper to unload the coal at the wharf, and reciprocally bound the consignees to receive- it there. The master desired to deliver, and the. consignees were ready and willing to receive. Neither party was in fault. The real defense in that case was that the common intention of both was thwarted by the interposition of a third party — by the harbor master preventing the vessel from coming to the place of delivery. I am inclined to think that it is a good defense, as much so as if the local authorities had precluded the vessel from entering the port.

But in this case the contract was not to deliver at the wharf, but to deliver from the “vessel’s tackles.” The contract was broader than that in the other case. There the vessel was hound to deliver, and the consignees to receive, at one designated place — the wharf. Hero the vessel was bound to deliver from her tackles as the consignees might direct — on the wharf, on a ship of war, on an army transport, on a lighter. And reciprocally the consignees were bound to be read}'- to receive the cargo when the ship should arrive, except as otherwise provided in the contract. If the defendants intended that the coal should be delivered at the wharf, and nowhere else, they should have so provided in this contract as in the other. Thej' having an unrestricted right to have the coal delivered at the wharf, on another vessel, or in a lighter, laid upon them a reciprocal obligation to be ready to receive it in some of these ways; and the claimants, when they entered into the contract, had a right to expect that they would be ready. The defendants had no more right to keep the vessel waiting at her cost for a wharf than to have kept her waiting for a ship of war or an army transport on board of which they had intended to unload the coal. It is said that there were no public lighters in the port; but it was not the claimants on whom the obligation was to provide lighters. .It is said that the defendants had no lighters there of their own; but the claimants did not know that when they entered into the contract, and the defendants did. For the defendants to say that they had neglected to provide lighters is not equivalent to saying that they were prevented by the act of God. In the other suit the vessel was bound to get to the wharf;, in this, all that the vessel was bound to do was to be ready-to deliver from her tackles.

Much was said on the argument in the other case about the “custom of the port” and “usage.” But that has no application here, for it referred to vessels getting to the wharves. There was no “ usage,” and there could have been none which would have prevented a vessel from unloading onto a lighter or another vessel. It appears in the case of Moore & Co. that that was done; 11,330 tons of coal were delivered in the harbor aboard the steamship Arizona.

My conclusion is that the quartermaster’s compelling these vessels to wait for a wharf and neglecting to provide lighters or other vessels on which the coal could have been unloaded constituted demurrage, for which the defendants are liable.  