Pendleton Bros. v. Northern Coal Co.

• Decision Date: 23 August 1927
• Docket Number: 2514.,No. 2470,2470
• Citation: 22 F.2d 317
• Parties: PENDLETON BROS., Inc., v. NORTHERN COAL CO. SCHREIBER v. SAME.
• Court: U.S. District Court — District of Massachusetts

22 F.2d 317 (1927)

PENDLETON BROS., Inc., v. NORTHERN COAL CO.

SCHREIBER v. SAME.

Nos. 2470, 2514.

District Court, D. Massachusetts.

August 23, 1927.

Albert T. Gould and Blodgett, Jones, Burnham & Bingham, all of Boston, Mass., for plaintiffs.

Frederick Foster, of Boston, Mass., for defendant.

MORTON, District Judge.

These cases are libels in personam against the same defendant, which were heard together. The first suit is to recover demurrage, or damages for detention, on the schooner Dunham Wheeler under a written charter party, dated January 4, 1923, and signed by the respondent as charterer. The second suit is to recover similar demurrage or damages for the schooner Bright under a similar charter party dated December 30, 1922.

The essential facts are not in dispute and might well have been stipulated by the parties with a considerable saving of time. Each charter party was for carrying a cargo of coal from Norfolk to Boston, and each vessel was duly loaded, sailed from Norfolk, and arrived at the discharging port. There was a long delay in unloading them. The Wheeler arrived on January 19, 1923, and was not berthed for discharge till March 6th; the Bright also arrived on January 19th, a few hours after the Wheeler, and was not berthed for discharge until March 10th. The Wheeler's freight money amounted to $2,891, while the demurrage claimed for her amounts to $7,169.86. The Bright's freight money was $3,221.10, and her demurrage, as claimed, $9,448.56.

The present controversy arises on the demurrage provisions in the charter party. In the case of the Wheeler the charter was "for a voyage from Norfolk, Va., to Boston, Mass., Mystic Wharf." As to detention, the provisions were: "Vessel to be loaded as soon as coal is available. Vessel also to take turn at discharging at Mystic Wharf, Boston, Mass." — this clause being written into a printed form. In the case of the Bright, the charter read, "For the voyage from Hampton Roads, Va., to Boston (Mystic Wharf), Mass.," and the provisions as to detention (also written into a printed blank) were, "Vessel to take her turn in loading and discharging." The parties have treated the charters — I have no doubt correctly — as being in legal effect identical. "Mystic Wharf," referred to in them, is a coal-discharging dock owned and controlled by the Boston & Maine Railroad; it is recognized as a loading point from which interstate rates are established. At the time in question it had berths for four coal vessels, and eight discharging towers for coal, which could be moved from place to place along the wharf. Ordinarily the railroad used two or three of the towers on its own coal and the balance on "commercial" coal. At the time in question, however, there was a very serious condition as far as fuel was concerned on that railroad, perhaps on all railroads, caused by the impaired ability of the railroads throughout the country to transport commodities, due to the shopmen's strike and to the severe weather. Mr. Munster, purchasing agent of the Boston & Maine, testifies — and I see no reason to doubt his truthfulness — that at this period the railroad was having the greatest difficulty from day to day in getting coal to run its locomotives; that its receipts were not equal to the amount which it was using; and that it was depleting its reserve. Brennan, the foreman of the dock, had orders to unload railroad coal as fast as he could. These orders were entirely proper, and were not an unreasonable use of the dock.

The Boston & Maine water-borne coal came in steamers from Norfolk and from Great Britain. These were docked and discharged as soon as possible after arrival, regardless of other vessels. The entire dock was not, however, given over to railroad coal. One or two commercial vessels were in it most of the time; but the discharging towers, as I understand, were not used on the commercial coal, except when they could not be used to advantage on railroad coal. The result was very great delay in the discharge of commercial cargo at this wharf, a delay for which nobody here concerned was at all to blame. The railroad officials were doing the best they could in a serious emergency, and shippers and carriers of commercial coal, like the parties before me, found themselves caught in circumstances which were quite beyond their control. The question is: Who must bear the loss; whether it should fall on the vessels, or on the charterers?

As stated by Judge Putnam in Re Cargo of Coal (C. C. A.) 175 F. 548, 550: "The law has always been held in the New England Atlantic states that the owner of a wharf has the same rights of controlling it as with regard to any other realty, and this is now declared to be the law generally, in Louisville Railroad Company v. West Coast Company, 198 U. S. 483, 25 S. Ct. 745, 49 L. Ed. 1135." This being so, these charter parties amount to agreements between A. and B. which contemplate the use of C.'s property. If C.'s wharf be a purely private one he could, of course, refuse to allow it to be used at all, or could name the conditions under which use would be permitted. This right, as the above quotation shows, is not changed by the circumstance that C. is a common carrier and uses its wharf in its business.

The obligation to provide a suitable place for discharge was on the respondent. If it contracted with the vessels to go to Mystic Wharf, it had the burden of arranging with the owner of that wharf to accept and discharge them. The expression in the charter party "to take turn in discharging," standing alone, implies that the vessel waives her right to discharge with reasonable promptness, and on the other side the charterer warrants that she shall receive the "turn" which she agrees to take. Donnell v. Amoskeag Mfg. Co., 118 F. 10 (C. C. A. 1st); Harding v. Cargo of Coal (D. C.) 147 F. 971. In the cases cited the vessel was to be loaded in turn, or to "have" her turn in loading and discharging, while here they were to "take" their turn. No attempt has been made to distinguish those cases from the ones now before me on this ground. Counsel have assumed, I think rightly, that the meaning of the provision was the same in all.

Under such an agreement the extreme position for the vessel would be that no vessel arriving after her should be docked before her; while the extreme position for the other side would be that the vessel agreed to take whatever "turn" the dock-owner should accord her. This last view is obviously untenable in so far as it exposes the vessel to arbitrary or capricious treatment by the dock owner. Evans v. Blair (C. C. A.) 114 F. 616, 619. A good deal of evidence has been submitted as to "custom" or "usage," and discussions of the subject using those terms are to be found in other cases. Donnell v. Amoskeag Mfg. Co., supra; Harding v. Cargo of Coal, supra.

Nevertheless they seem to me rather inaccurate and unfortunate. Custom means a general understanding on which all persons trade in a certain port,...