Bull v. United States Shipping Co.

• Decision Date: 23 July 1909
• Docket Number: 286.
• Citation: 173 F. 46
• Parties: BULL et al. v. UNITED STATES SHIPPING CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

173 F. 46

BULL et al. v. UNITED STATES SHIPPING CO. et al.

No. 286.

United States Court of Appeals, Second Circuit.

July 23, 1909

MacFarland Taylor & Costello and Willard U. Taylor, for appellants.

Wing Putnam & Burlingham and Henry E. Matteson, for appellee United States Shipping Co.

Wilcox & Green and Herbert Green, for appellee Berwind-White Coal Mining Co.

A decree of the District Court for the Southern District of New York dismissed the libel in an action of demurrage for the detention of the steamship Eva at Philadelphia beyond the time limit stipulated in the charter-party. The action was originally brought against the charterer, the United States Shipping Company, which on petitioner, under the fifty-ninth rule, brought in, as a party respondent, the Berwind-White Coal Mining Company, which latter company held a subcharter in terms substantially identical with the original.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

COXE Circuit Judge.

Both charters contain the following:

'It is agreed that the lay days for loading and discharging shall be as follows, if not sooner dispatched commencing from the time that the captain reports his steamer ready to receive or discharge cargo, and custom house formalities are fulfilled: Customary steamer dispatch loading, steamer to take turn with other steamers loading coal, and the cargo to be taken from alongside by consignees at the port of discharge, free of expense and risk to the steamer, at the average rate of not less than three hundred (300) tons per running day (Sundays and holidays excepted), providing the steamer can deliver it at this rate. Also, that for each and every day's detention by default of said party of second part, or agent, ten cents U.S. gold per net register ton per day, day by day, shall be paid by said merchants, or agent, to said chartered owners or agents.'

Pursuant to the written directions of the original charterer, dated October 29, 1907, the Eva proceeded to Philadelphia, arriving there November 1, 1907. Her master reported to the Berwind-White Coal Company as follows:

'I beg to notify you that the S.S. Eva is now in port and ready to receive her cargo and will come on her lay days forthwith.

'Respectfully yours, . . . . . H. R. Swift, Master.' He also registered the Eva pursuant to the local port rules which had been adopted two months previously. On this day, November 1st, Chase, the general manager of the Berwind-White Company, who received the notice of the master of the Eva, informed him that they would not be ready to load the ship for a week-- 'say next Thursday.' Roney, a witness for the libelants, testified that he was present at this conversation between the master of the Eva and Chase, and that the--

'captain asked Mr. Chase when the cargo would be ready for his vessel and that Chase replied, 'The middle of next week.' Captain, as I remember, said that was rather indefinite and during the conversation Mr. Chase said 'by Thursday' or 'not before Thursday."

In the Berwind-White letter of November 9th to Mr. Rossen it is stated that the master of the Eva was informed that 'it would be four or five days before the Eva could take berth. ' That this assurance was given is also admitted, in its essential particulars, by Chase who testifies as follows:

'He (the master) asked me at that time when I thought he would be loaded. I told him I could not tell exactly, there were some vessels there loading at that time, but it looked to me as though it would be next week. He said to me 'well, do you know when?' I said I suppose about the middle of the week.'

The testimony shows that in view of the limited capacity for loading coal at Philadelphia it is seldom that a vessel receives quick dispatch. The Eva arrived about noon of November 1st and no loading berth was available until 5 o'clock of the afternoon of the 7th when the steamship Queen Adelaide, which took the Eva's place, was sent to the berth. It is manifest, therefore, that the master of the Eva was justified in assuming that his vessel was to lie ikle for at least five and a half days-- it was in fact nearly a full week.

Pursuant to the local custom of the port the master of the Eva registered her at 1:30 p.m. November 1st in the registry kept at the Greenwich coal pier. The rules requiring this to be done are as follows:

'1. All vessels must be registered by the proper officer in charge, in a book kept at the pier office for that purpose. Under no circumstances is a vessel entitled to register until ready to cargo. A vessel not registered will not be given a berth. * * *

'4. If from any cause whatever a vessel which has registered fails to dock when berth for cargo is ready, such vessel when ready to cargo must again register as newly arrived and take its turn according to the lates registration.'

On arriving at Philadelphia the Eva proceeded to the Cramp, or Kensington, shipyard, a distance variously estimated at from 2 to 4 miles from the Greenwich pier, and tied up at the dock where she was given free wharfage. She went to the Kensington yard to receive her stores and make some repairs. This yard was within the port of Philadelphia and from there the Eva could have reached the coal pier in from half an hour to an hour. The repairs which the owner of the Eva desired to make consisted in replacing about two-thirds of a wooden bulkhead with steel. This substitution in no way affected her utility or capacity as a coal carrier. The change was not structural in character and was designed to enable her to carry Asphalt with greater facility. When she reached Philadelphia she was ready to load and could have gone at once to her berth had one been available. The repairs on the bulkhead could have been suspended at any moment and she could have been at the Greenwich pier within four or five hours after receiving notice that the vessel then occupying the coaling berth was about ready to vacate. That she would have been ready on Thursday afternoon there can be no doubt. She was in fact ready. Although vessels awaiting their turn frequently lie off the Greenwich pier it is not necessary that they should do so and in this case Manager Chase expressly states that they would accept a vessel lying at the Kensington yard 'if she was in all respects ready.'

The respondents insist that because the Eva was utilizing the days she was compelled to be idle in having a bulkhead repaired, she was not 'ready' and that they were justified in having her name stricken from the registry and the Adelaide put in her place with a consequent delay of 10 days. It is not necessary to decide whether the name of The eva was actually removed from the list; that question is wholly negligible in view of the fact that through the combined action of the respondents and the pier master the Adelaide which was registered 3 1/2 hours afterwards was given the Eva's place. The fact of preference being admitted the modus operandi by which the results was accomplished is unimportant. This preference can be justified only upon the theory that the Eva was not ready because, and solely because, she was having a bulkhead changed during her enforced idleness. That there would be a delay at Philadelphia was contemplated by both parties when the charters were made.

The simple question, then, is were the charterers justified in arbitrarily determining, without notice to, or consultation with, the ship owners, that the Eva was not ready because she was having repairs made during the time she was waiting for her turn? We are of the opinion that the question should be answered in the negative. We think the testimony is overwhelmingly to the effect that when the Eva reached Philadelphia she was ready to receive cargo and would have gone directly to her berth had one been empty. She did not then begin to load because the berths were all occupied and proceeded to Cramp's shipyard relying on the statement of the charterer's agent that she could not be loaded until about Thursday of the following week. We think that the repairs which were being made could at any time have been discontinued and the Eva berthed upon receiving reasonable notice. That she was 'ready' even upon the respondents' interpretation of that term, before a berth was vacant is proved beyond controversy. She was, indeed, ready on November 6th and could have come down from Kensington in an hour.

The respondents seem to proceed upon the theory that the Eva's position was analogous to that of a ticket purchaser before a box-office, or an apprehensive depositor awaiting his turn to reach the teller's window in a suspected bank, who forfeits his place if he drops out of line. Such a contention leads to the conclusion that a vessel loading at the Greenwich pier must lie on the anchorage ground opposite with bunker coal on board and hatches swept out, and if she fails in these respects she is liable to be stricken from the list by an invisible hand guided by any hostile interest. We do not so understand the situation.

The registration of vessels was intended as a substitute for waiting in line. Once properly on the list it is no affair of the pier master, or the charterer, what the vessel does so long as she remains in port. The test of readiness is her ability to reach the loading berth in time. If she fails the loss is hers, and the gain that of the vessels below here on the list.

Rule 4 quoted above, contemplates exactly this penalty and no other. If the registered vessel fails to dock when the berth for cargo is ready then, and then only, must she re-register. The rule does not say that if she utilizes the time she is compelled to wait by cleaning, or painting, or making changes in her bulkheads she may be sent to the bottom of the list by...