Donaldson v. Severn River Glass Sand Co.

• Decision Date: 12 June 1905
• Docket Number: 3.
• Citation: 138 F. 691
• Parties: DONALDSON et al. v. SEVERN RIVER GLASS SAND CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

138 F. 691

DONALDSON et al. v. SEVERN RIVER GLASS SAND CO.

No. 3.

United States District Court, E.D. Pennsylvania.

June 12, 1905

Howard M. Long, for libelants.

Daniel V. Summerill, Jr., for respondent.

HOLLAND District Judge.

The libelants in this case claim the sum of $630, being 90 cents per ton on 700 tons of sand, and demurrage for 4 1/2 days at $20 per day, on the charter party executed by the parties to this suit on September 8, 1903.

The charter party provides that the barge B. T. Donaldson, of Philadelphia, then lying at the harbor of Baltimore 'agrees in the freighting and chartering of the whole of the said barge * * * unto the Severn River Glass Sand Company for a voyage from the Severn river sand banks to Philadelphia,' and the said company agrees to furnish 'a cargo of not less than 700 tons of sand loose, ' for which it agrees to pay the sum of '90c. per ton of 2,000 pounds payable on delivery of cargo,' and when the barge is ready she is to receive 'dispatch for loading and unloading,' and for every day's detention by default of the sand company or its agent she is to receive the customary amount per day as demurrage. After the barge was chartered, the firm of Hite & Rafetto, not a party to this cause, agreed with the master of the barge to ship 90 tons of coal from Baltimore to the sand company's banks and the coal was loaded in the hold of the barge, which was 12 feet deep. The barge arrived at the Severn River Glass Sand Company's banks, on the Chesapeake Bay, on September 10, 1903. The company, not being provided with machinery for unloading the coal from the hold of the barge, did not succeed in discharging the coal until September 17, 1903 after which it was necessary to thoroughly clean the hold of the barge, in order that the sand, which was used for making glass, should not be damages or stained with particles of coal. The evidence shows that there was no necessity for putting this coal in the hold, and, if it had been loaded on deck, it could have been discharged more expeditiously avoiding considerable delay. The libelants contend that the company was not ready to provide a cargo of sand, and that they were delayed from September 17th to September 22d in the loading; while the respondent avers that this time was the ordinary dispatch in loading sand at the banks.

The evidence is conflicting, but I am of the opinion that there was no unusual delay entitling the libelants to demurrage; and, as to the time devoted to unloading the coal, the libelants are not in a position to claim demurrage, as the delay, if unusual, was the result of their own act in taking on board this cargo of coal after the barge had been chartered to the respondent, and without consulting the management at the banks as to its facilities for unloading the coal from the hold of the barge. They took the risk as to the delay that might be caused by reason of shipping the coal, and I cannot see how it can be charged to the respondent in this case.

When the captain was informed that the loading of the sand was complete, he protested that there was not 700 tons on board and he came to this conclusion from the...