Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co.

• Decision Date: 24 August 1896
• Docket Number: 747.
• Citation: Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co., 77 F. 919 (8th Cir. 1896)
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: EMPIRE TRANSP. CO. et al. v. PHILADELPHIA & R. COAL & IRON CO.

77 F. 919

EMPIRE TRANSP. CO. et al. v. PHILADELPHIA & R. COAL & IRON CO.

No. 747.

United States Court of Appeals, Eighth Circuit.

August 24, 1896

These are appeals from decrees dismissing libels against the appellee, the Philadelphia & Reading Coal & Iron Company, for damages for the detention of vessels during the strike of 1894. Each of the appellants filed a libel against the appellee in the court below to recover damages for the detention of one of its steamships for a period of 12 days during that strike. The appellant, the Empire Transportation Company alleged, in its libel, that on June 30, 1894, the appellee chartered its steamship, the W. H. Gilbert, to transport a cargo of coal owned by the appellee from Buffalo in the state of New York, to West Superior, in the state of Wisconsin; that the ship arrived at West Superior, loaded, on July 4, 1894; that the appellee commenced to unload her on the next day, but ceased on that day, before she was unloaded, and did not complete the unloading, or discharge her, until July 17, 1894; that the usual and sufficient time to discharge such a cargo, at the docks of West Superior, was 2 days; that she was detained 12 days longer than was necessary or reasonably required for her discharge; and that the damage to the libelant was $200 per day. The appellant the Mitchell Steamship Company alleged, in its libel, that the appellee chartered its steamship, the W. H. Gratwick No 2, for the same purpose, on July 6, 1894, that the vessel arrived at West Superior with its load on July 10 and that it was detained until July 24, 1894, before it was unloaded. In other respects it made the same allegations as were made by the Empire Transportation Company. The contracts of affreightment of the two vessels were identical in terms, and were attached to the libels. They were simple bills of lading, which contained no stipulation of any kind with reference to the time of unloading or discharging the vessels, but merely provided that the owners of the steamships should deliver the coal at West Superior, in good condition, upon the payment by the appellee of 25 cents per net ton, free of handling. The answers of the appellee to these libels were that, without any fault or negligence on its part, its employes struck and refused to work, on July 6, 1894, without any previous warning of their intention so to do; that the appellee immediately hired other workmen to take their places, and used reasonable diligence to reorganize its working force, and to unload these vessels; but that the strikers organized into a body, and by violence and intimidation prevented some of the men it hired from working for it, scared away others after they commenced to work, and rendered the appellee powerless to discharge the steamships sooner than it did. The court below held that these allegations were true, that they constituted a good defense to the libels under the law, and entitled the appellee to decrees of dismissal. Such decrees were accordingly entered, and are now presented to this court for review.

Herbert R. Spencer, for appellants.

M. H. Boutelle, for appellee.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the facts above, .

In the absence of any stipulation with reference to the time of unloading or discharge in a charter of a vessel, is the charterer liable to the owner of the ship for damages for her detention caused by a strike of his laborers and such subsequent intimidation and violence on their part as prevent other willing workmen from supplying their places? If so, is the finding of the court below, that the appellee used reasonable diligence to discharge these vessels, but was delayed without its fault by the intimidation and violence of the strikers, warranted by the evidence in these cases? These are the questions presented by these appeals.

Demurrage, strictly speaking, can be recovered only when it is expressly reserved by the charter or bill of lading. Gage v. Morse, 12 Allen, 410; The J. E. Owen, 54 F. 185, 186. But one who charters a vessel, under a contract that is silent as to the time of unloading and discharge, contracts by implication that he will unload and discharge her within a reasonable time or with reasonable diligence. Cross v. Beard, 26 N.Y. 85, 89; Fulton v. Blake, 9 Fed.Cas. 993, 995 (No. 5,153); The J. E. Owen, 54 F. 185; Burrill v. Crossman, 16 C.C.A. 381, 69 F. 747; The M. S. Bacon v. Erie & W. Transp. Co., 3 Fed. 344; Whitehouse v. Halstead, 90 Ill. 95, 98; Henley v. Ice Co., 14 Blatchf. 522, Fed. Cas. No. 6,364; Finney v. Railway Co., 14 F. 171; Houge v. Woodruff, 19 F. 136; Fish v. One Hundred and Fifty Tons of Brown Stone, 20 F. 201; Gronn v. Woodruff, 19 F. 143; The Z. L. Adams, 26 F. 655, 656; The Elida, 31 F. 420; The William Marshall, 29 F. 328; The Mary Riley v. Three Thousand Railroad Ties, 38 F. 254; Riley v. A Cargo of Iron Pipes, 40 F. 605; Bellatty v. Curtis, 41 F. 479, 480; Taylor v. Railway Co., L.R. 1 C.F. 385; Burmester v. Hodgson, 2 Camp. 488; Ford v. Cotesworth, L.R. 4 Q.B. 127, L.R. 5 Q.B. 544; Hick v. Rodocanachi (1891) 2 Q.B. 626, 633, 638, 646; Hick v. Raymond (1891) 1 Reports, 125, 129, 133, 134; Postlethwaite v. Freeland, 5 App.Cas. 599, 621, 622. These libels seek damages for the breach of this implied contract. Where the time for the discharge of the vessel is stipulated, or is definitely fixed by the carter or bill of lading, so that it can be calculated beforehand, the charterer thereby agrees absolutely to discharge her within that time, and he takes the risk of all unforeseen circumstances. 'He bears the risk of delay arising from the crowded state of the place at which the ship is to load or discharge (Randall v. Lynch, 2 Camp. 352); or from frost (Barret v. Dutton, 4 Camp. 333), or bad weather (This v. Byers, 1 Q.B.Div. 244), preventing access to the vessel; or from acts of the government of the place prohibiting export, or preventing communication with the ship (Barker v. Hodgson, 3 Maule & S. 267; Bright v. Page, 3 Bos.& P. 295, note). And it is immaterial that the shipowner, also, is prevented from doing his part of the work within the agreed time, unless he is in fault. The charterer takes the risk. ' Carv. Carr. by Sea, Secs. 610, 611; Davis v. Wallace, 7 Fed.Cas. 182 (No. 3,657); Railroad Co. v. Northam, 19 Fed.Cas. 492 (No. 11,090); Williams v. Theobald, 15 F. 465, 471; Manson v. Railroad Co., 31 F. 297; Sixteen Hundred Tons of Nitrate of Soda v. McLeod, 10 C.C.A. 115, 61 F. 849; Burrill v. Crossman, 16 C.C.A. 381, 69 F. 747, 752.

Over the principles of law which we have stated there is no dispute. The controversy is over the effect, upon the contracts in these cases, of the established fact that the customary time for the discharge of a cargo of coal at the port of West Superior was two days. It was conceded that, in the absence of proof of this customary time of discharge at that port, these contracts must fall under the first class of cases to which we have adverted, and that the only question would be whether or not the appellee discharged the vessels within a reasonable time, under all the circumstances of the case. The contention of counsel for the appellants is that the fact that such vessels were customarily discharged at that port in two days removes these cases from the first, and ranges them in the second, class of cases, to which we have referred. The position is, in effect, that proof of the customary time of discharge excludes from the consideration of the court every other fact and circumstance bearing upon the reasonableness of the time of the discharge of these vessels, and upon the reasonableness of the diligence of the appellee, and converts these contracts from agreements to unload the ships with reasonable diligence into absolute obligations of the appellee to discharge the vessels in two days, regardless of every unforeseen change and circumstance. The argument is: One who contracts to unload a vessel within a fixed time takes the risk of all unforeseen circumstances. The custom of the port of delivery is by implication a part of every contract of affreightment. Therefore, one who makes a contract for the service of a vessel, which is silent as to the time of her discharge, enters into an absolute obligation to discharge her within the customary time at her port of delivery, and takes the risk of every unforeseen obstacle and accident. Is it, however, true, that the custom of the port becomes by implication a part of such a contract, any more than every other fact and circumstance does which directly bears upon the reasonableness of the diligence of the charterer? The customary time for the discharge of vessels at any port is necessarily the time within which they are discharged under ordinary circumstances. Given the ordinary circumstances, and the customary time becomes the reasonable time, and, in that way, the key to the construction of the contract. Under such circumstances,-- that is, under ordinary circumstances,-- where the consignee, by the exercise of reasonable diligence, might discharge the vessel in the customary time, he has been properly held liable for detention beyond that time; and courts, in discussing such cases, have sometimes said that there was an implied agreement in the contract that the charterer would not delay the boat beyond the usual time of discharge in the port of delivery. On the other hand, where long delay has resulted from compliance with the custom of a port for vessels to take their turns at a dock, and the consignee could not, with reasonable diligence, have avoided this delay, the courts have often held that he was not liable therefor.

The cases relied upon by counsel for the appellants belong to one or the other of...