
    Elwell v. Fabre et al.
    
    (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    1. Wharves—Lease—Wharfage—Quarantine.
    Defendants agreed to pay plaintiff a certain sum per day for the use of a wharf, commencing with and including the day of each steamer’s arrival in the port of New Y ark, provided such arrival be before 4 p. M., and, if later, then the following day to count as the first day, and including also the day of departure. If plaintiff should be unable to furnish the pier to any steamer he was to furnish without loss of time a covered pier, as convenient as possible, at no additional expense. Defendants were to give notice of sailing for New York 10 days before arrival, so that the pier might be reserved. Meld, that plaintiff was entitled to wharfage from the time of arrival in port if before 4 o’clock p. m., though the steamer was detained at quarantine.
    2. Same.
    The law in reference to quarantine, having been in force at the time and place of making and place of performing the contract, must be presumed to have been considered by the parties, and is not an unexpected intervention of sovereignty which suspends the operation of marine contracts.
    3. Same.
    The pier being occupied by one steamer when another arrived, plaintiff procured another pier, which he held for several days, when, in consequence of detention at quarantine, and the.uncertainty of the time of release, he surrendered it. Meld, that plaintiff could not recover additional wharfage' for the additional pier for the period when the same was not provided and held in readiness.
    Appeal from judgment on report of referee.
    Action by John D. Elwell against Cyprien Eabre and others. Defendants appeal.
    Argued before Van Brunt, P. J., and Brady and Daniels. JJ.
    A. D. Benedict, for appellants. Eustace Conway, for respondent.
   Tan Bbttnt, P. J.

This action was brought to recover wharfage. On the 28th of December, 1886, the plaintiff and the defendants, who owned and operated a line of steam-ships running from Europe to the port of New York, entered into a contract whereby the plaintiff agreed to rent a certain pier for the use of the steamers of the line during the time they were in the port, the defendants agreeing to send the steamers of the line arriving at New York to this pier, and to pay the plaintiff for the use thereof as .follows: “ Commencing with and including the day of each steamer’s arrival in the port of New York, providing such arrival be previous to the hour of four p. ii., (if such arrival be after that hour, then the following day to count as the first day,) and including the day of each steamer’s departure for sea,” etc., fifty dollars per day. And by said agreement it was further provided that if at any time for any cause the plaintiff should be unable to furnish the pier-to any steamer of the defendants, that then the plaintiff was to furnish such steamer, without loss of time, a covered pier, as convenient as possible to the plaintiff’s pier, and at no additional expense to the defendants for such change. The defendants agreed to give notice to the plaintiff of the date of the sailing of each steamer from its last port for New York, said notice of departure to be given at least 10 days before the arrival of each steamer at New York in order that the pier might be reserved for them. Some of the steamers of the defendants, having arrived at quarantine, were detained in consequence of having cholera on board, and the main question involved in this case is as to the right of the plaintiff to recover wharfage from the time of their arrival at quarantine. Upon this point we think that the learned referee has reached a correct conclusion, as stated in his opinion: “It is provided in the contract that, the defendant should give to the plaintiff at least 10 days’ notice of the time of sailing of the steamers respectively from their last port of departure for New York, the obvious object of which is that the plaintiff might make proper arrangements within a reasonable time to have his pier unoccupied and ready for the steamers upon their arrival. The expectation of the parties apparently was that, barring accidents, upon the day of their arrival, or at least the next day, they would need pier accommodations, and be brought to the plaintiff’s pier. This is shown by the clause in the contract, that the period for which payment should be made was to commence with and include the day of each steamer’s arrival in the port of New York, provided such arrival be previous to the hour of four o’clock p. m., but that, if such arrival be after that hour, and the steamer does not come to the dock, then the following day to count as the first day.” It was optional as to when the defendants should dock their ships, but from the time of the arrival of the ships in the port of New York the plaintiff was bound to have his wharf ready to receive them. It would therefore seem to be reasonable to suppose that the parties had in view the fact that these ships would have to pass the quarantine, and that their arrival at the quarantine did not necessarily control the time at which they would be ready to enter the dock. It is to be assumed that in case of the arrival of these steamers before 4 o’clock in the day the plaintiff was bound to have his pier ready; and that in case of delays in arrival arising from tempestuous weather or otherwise, the plaintiff had no recourse for the loss of his wharfage; and as an offset to this it would appear that it. was the intention of the parties that from the arrival of the ship in the port of New York the plaintiff was to be at no further risk in reference to his right to collect wharfage, no matter at what time the defendants might choose to dock their ships. Under the construction claimed by the defendants the plaintiff was bound to have his wharf in readiness to receive the vessels when they should arrive, and if the defendants, after entrance into the port of New York, or arrival at the quarantine, should arbitrarily detain their ships, the plaintiff would be required to have his wharf all the time in readiness for the receipt of the ships without any claim for wharfage whatever. The delays of the sea the plaintiff had to run the risk of, but he did not run any risk whatever after the vessel made the port, and it was not the intention of the parties that he should. It would seem,.therefore, that the plaintiff was entitled. to recover for wharfage .from the time of the arrival of the vessels at the quarantine, if they arrived before 4 o’clock in the afternoon, which is the construction put upon the contract by the learned referee.

As to the defense that this was a marine contract, and that" the operation thereof was suspended by force of law, we do not think the objection is well taken. The detention of the vessel in getting to the dock must be considered as having been within the contemplation of the parties at the time of the making of the contract. The detention at the quarantine did not arise simply from the action of the state, but because of the condition in which the vessels found themselves upon their arrival. The laws in reference to the quarantine were in force at the time the contract was made. They were the laws of the place where the contract was made, and where the contract was to be performed, and all vessels from foreign ports were subjected to the dangers of this delay in case the necessity therefor arose. It is not that unexpected intervention by the sovereign power which suspends the operation of a maritime contract.

The learned referee has found that when one of the steamers was in port it fully occupied the pier leased, so that there was no room thereat for the accommodation of another of these steamers. To meet exigencies of this description, in case of there being two steamers in port at the same time it was provided that if at any time for any cause the plaintiff was unable to furnish the pier to any of the steamers of defendants, that then he was to furnish such steamer, without loss of time, a covered pier as convenient as possible to the pier leased, and at no additional expense to the defendants for such change. The pier leased being occupied by one steamer in October, another steamer arrived, and on the 19th of October the plaintiff hired and furnished another pier for the accommodation of this steamer, and retained and held the' same subject to her use until and including the 25th of October, 1887, when, in consequence of the steamer being detained at quarantine, and the time of her release being uncertain, he gave up said other pier to the owner thereof, and this condition of affairs existed also later in regard to another of the steamers. The learned referee has found that the plaintiff was entitled to recover $50 a day during the whole time that these steamers were in port, whether he liad provided this additional wharfage or not, and that it was immaterial to the defendants whether he had the pier or not, inasmuch as they had made no application for the occupation of a pier which had been refused. In this we think the learned referee erred. We do not think that the plaintiff had the right to recover this additional wharfage for an additional pier for the period that such pier was not provided and held in readiness by the plaintiff. There is nothing in the. contract which seems to imply such a condition of affairs, and certainly the plaintiff cannot recover for the furnishing of wharfage, or being ready to" furnish wharfage, when the proof shows that he had neither so furnished it, nor was ready to so furnish it. The only theory upon which a recovery could be had is that the plaintiff had the wharf ready for the occupation of the steamer. If he had not, then it would seem that the very basis of the claim had fallen. We therefore think that the learned referee erred in allowing a recovery for the wharfage of the substituted pier for those periods of time during which the substituted pier was not provided.

It would seem, further, that the referee has erred in regard to the amount of credits which he allowed upon the payment of wharfage. He finds that the defendants had paid on account of the steamer Britannia $400, and no more. The vouchers offered in evidence show that the defendants paid $600, and that they were entitled to a credit of $200 on that account. It would appear, therefore, that the judgment should be reduced to the sum of $900 and interest, and, if the plaintiff stipulates to accept such reduction, such judgment as modified should be affirmed without costs to either party. In case suph stipulation is not given, the judgment should be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.  