Durchman v. Dunn

• Decision Date: 26 March 1900
• Citation: 101 F. 606
• Parties: DURCHMAN v. DUNN et al.
• Court: U.S. District Court — Southern District of New York

101 F. 606

DURCHMAN v. DUNN et al.

United States District Court, S.D. New York.

March 26, 1900

Cowen Wing, Putnam & Burlingham, for libelant.

Wilson & Wallis, for respondents.

BROWN District Judge.

The charter party of the ship Columbus for carrying a cargo of spruce lumber from Batiscan, Quebec, to Buenos Ayres, under which the demurrage for delay in loading is claimed, provided as follows 'Cargo to be furnished at port of loading as fast as vessel can receive and properly stow same in suitable hours and weather, * * * Sundays and holidays excepted.'

The ship was to be loaded with lumber at Batiscan, which was the usual place of anchorage for that region at the mouth of the Batiscan river. The ordinary course of business was that the lumber for loading was brought down on lighters from the lumber yards and mills from 12 to 14 miles up the river and transferred from lighters to the ship. The ship had nothing to do with the lighterage, or with the lighters, except to receive the lumber as brought by them. Loading commenced on the 8th of August, and as I find from the evidence was completed on Wednesday the 7th of September. Demurrage is claimed for the whole of August 29th, 30th, and 31st, for a half day each on September 1st and 2d, and for the whole of September 5th, at the rate fixed by the charter party of $137.76 per day. September 5th, however, was a holiday. I construe the charter as excepting that day from the obligation to load; and although it appears that work might perhaps have proceeded through stevedores at the ship notwithstanding the exception in the charter party, I think the libelant cannot hold the respondents answerable for not working or supplying lumber on that day.

1. The defense as to the other days claimed is, that the lumber to be shipped was required to be dry, on account of the length of the voyage, and that through local storms up the river the lumber which was previously sufficient dried at the yards where it was piled up became so wet as to be unfit for loading. I must overrule this defense, as not within the exception of the charter. The charter required the loading to proceed 'as fast as vessel can properly receive and stow same in suitable hours and weather. ' That plainly means suitable hours and weather for loading and for storage. That clause prevents counting hours or days when by reason of the weather at the place of loading the ship, the cargo could not be put on board or stowed without being injured. It certainly has no reference to the care and preservation of the lumber either at the distant yards, where it was piled, or on board of lighters by which the respondents were to bring it to the vessel at the place of loading. Under the clause quoted that was a risk lying wholly upon the respondents and not upon the ship. Scrutton, Charter Parties, Sec. 42; Grant v Coverdale, 9 App.Cas. 470; Davis v. Wallace, 3 Clif. 131, Fed. Cas. No. 3,657; Burrill v. Crossman, 16 C.C.A. 381, 69 F. 747, 751; Sorensen v. Keyser, 2 C.C.A. 650, 52 F. 163; McLeod v. 1,600 Tons of Nitrate of Soda (D.C.) 55 F. 528; Id., 10 C.C.A. 115, 61 F. 849; Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co., 23 C.C.A. 564, ...