Berwind-White Coal Mining Co. v. SOLLEVELD, ETC.

• Decision Date: 18 January 1926
• Docket Number: No. 2412.,2412.
• Citation: 11 F.2d 80
• Parties: BERWIND-WHITE COAL MINING CO. v. SOLLEVELD, VAN DER MEER & T. H. VAN HATTUM'S STOOMVAART MAATSCHAPPIJ.
• Court: U.S. Court of Appeals — Fourth Circuit

11 F.2d 80 (1926)

BERWIND-WHITE COAL MINING CO. v. SOLLEVELD, VAN DER MEER & T. H. VAN HATTUM'S STOOMVAART MAATSCHAPPIJ.

No. 2412.

Circuit Court of Appeals, Fourth Circuit.

January 18, 1926.

Harrington Putnam, of New York City (Hughes, Little & Seawell, of Norfolk, Va., and Leo J. Curren, of New York City, on the brief), for appellant.

Charles R. Hickox, of New York City (Edward R. Baird, Jr., of Norfolk, Va., and Earl Appleman, of New York City, on the brief), for appellee.

Before ROSE and PARKER, Circuit Judges, and WATKINS, District Judge.

PARKER, Circuit Judge.

This is an appeal from a final decree in admiralty in personam in favor of the owner of the steamship Oostdijk against the Berwind-White Coal Mining Company, the charterer of said vessel, for demurrage amounting to $109,100.70, with interest and costs. The charter party was executed October 2, 1919. By its terms the vessel was chartered to carry a bulk cargo of coal of about 3,500 tons from Norfolk or Newport News to Buenos Aires or Montevideo, one port only, merchants option for a freight of $15 per ton. The vessel arrived at Newport News on October 27, 1919, and on October 28th, at 7 a. m., custom house formalities had been fulfilled; she was in all respects ready to load cargo; and notice of readiness was served on the coal company's agent. The vessel was not loaded, and the lay days provided in the charter expired at 4:36 p. m. October 30th. The coal company admits that the vessel went on demurrage on October 30th, but claims that demurrage was suspended at midnight on October 31st because of an order of the United States Fuel Administration, which, it contends, made illegal the export of coal contemplated by the charter until a permit was secured on January 10, 1920. The vessel completed loading, and sailed from Newport News January 13th. The coal company admits its liability for demurrage amounting to $7,492.11, being for the admitted detention before October 31st at Newport News, the time in January after receiving the license to load, and for a half day's delay at Buenos Aires; and the only question in the case is whether demurrage was suspended as a result of the order of the Fuel Administration. If it was not suspended, then it is conceded that the decree of the court below was correct.

The pertinent provisions of the charter party were as follows:

"3. The act of God, restraint of princes, rulers and people, fire and all and every other dangers and accidents of the seas, rivers and steam navigation of what nature and kind soever, riots and strikes always mutually excepted.

"4. It is agreed that the lay days for loading shall be as follows: Commencing from time steamer is ready to load and custom house formalities are fulfilled whether berth or cargo available or not available.

"Cargo to be loaded as follows:

"1 ton to 3,000 tons cargo capacity 2 running days.

"3,001 tons and upward cargo capacity to be loaded at the rate of not less than 1,500 tons per running day for entire cargo.

"Sundays and legal holidays to be excepted; it being understood that the vessel be loaded within specified lay days or charterers to pay for any time lost. If Sundays and legal holidays used same to count as half lay days unless steamer be on demurrage, in which case to count as full days. * * *

"Any detention in loading port after loading is completed, unless caused by default of ship, shall also count the same as time occupied in loading; owners to have a lien on cargo for all demurrage and expenses of loading and of discharging and charterers to pay the same.

"Any extra expense incurred by reason of working steamer on Sundays or holidays at loading port shall be for the account of the charterers and any extra expense incurred by reason of working the steamer on Sundays or holidays at port of discharge shall be for the account of the cargo. However, should steamer be on demurrage when such extra expense is incurred, whether at loading or discharging port, such extra expense to be borne by cargo.

"5. Also, that for each and every day on demurrage the party of the second part, or agents, shall pay to the party of the first part at the rate of forty-eight (48c) cents United States gold per gross registered ton per day, and for each lay day or part of lay day saved despatch money at the rate of sixteen (16c) cents United States gold, per gross registered ton per day, shall be allowed the party of the second part, or agent. For the purpose of calculating despatch or demurrage any lay days or part of lay days saved at loading port shall be added to the time allowed for discharging or vice versa."

The facts with regard to the order of the Fuel Administration and the failure of the respondent to furnish the vessel with cargo of coal were as follows: On October 31, 1919, the Fuel Administrator of the United States government issued an order, effective at midnight October 31st, by which the Director General of Railroads was instructed to make diversion of coal in the possession of the railroads, and to provide for its distribution among the various consumers of coal according to a certain preference list. This order did not prohibit the export of coal, but made it necessary to obtain the consent of the fuel administration before coal could be moved over the railroads from the mines to the seaboard for export. It did not interfere in any way with coal not in the possession of the railroad companies. On December 27th an order was issued by the Fuel Administration establishing the embargo and permit system for handling coal at Norfolk and Newport News for export, and thereafter permits were required before coal could be loaded for export. At no time during this period was the shipping of coal from Newport News entirely prohibited. On the contrary, between October 31st and January 13th, vessels received at that port 198,515 tons, of which 131,888 tons were for foreign shipment, and almost one-fourth of which was loaded by respondent. During the same period 411,903 tons were loaded at Norfolk; 283,595 tons being for export and 18,181 tons being loaded by respondent.

At the time the Oostdijk reported for cargo on October 28th respondent had available for loading vessels at Newport News 10,725 tons of coal; on October 29th 4,675 tons; on October 30th 1,760 tons; and on October 31st 4,895 tons. If respondent had ordered a cargo of this coal loaded on the Oostdijk, it would have been loaded at any time before midnight of October 31st. But it appears that, instead of loading the Oostdijk, respondent loaded the coal into other vessels. On October 28th respondent had at Norfolk 10,990 tons of coal; October 29th 7,986...