Swan v. Wiley, Harker & Camp Co.

• Decision Date: 10 March 1908
• Docket Number: 159.
• Citation: 161 F. 905
• Parties: SWAN et al. v. WILEY, HARKER & CAMP CO.
• Court: U.S. Court of Appeals — Second Circuit

161 F. 905

SWAN et al. v. WILEY, HARKER & CAMP CO.

No. 159.

United States Court of Appeals, Second Circuit.

March 10, 1908

Hyland & Zabriskie (Nelson Zabriskie, of counsel), for appellants.

Wing Putman & Burlingham (James Forrester, of counsel), for appellees.

Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD Circuit Judge.

This is a libel for demurrage by the owners of the barkentine Herbert Fuller against the charterers. The charter party, made between the master of the first part and the charterers of the second part, contains the following clause:

'It is agreed that the lay days for loading and discharging shall be as follows (if not sooner dispatched), commencing from the time the vessel is ready to receive or discharge cargo. For loading, thirty-five thousand feet per day Sundays and holidays excepted and customary dispatch discharging, and that for each and every day's detention by default of the said party of the second part or agent $69.70/100 dollars per day, day by day, shall be paid by the said party of the second part, or agent, to the said party of the first part, or agent.'

We are saved the necessity of inquiring what is customary dispatch in discharging by the admission in the answer that it is at the rate of 35,000 feet per day, which would make the time for discharging, having reference to the amount of lumber carried, 15 1/2 days. Nothing is said about excepting Sundays and holidays, but the parties appear to have acted on the theory that they should be excepted during the running of the lay days. The effect of the provision in the charter party is that the charterer agrees to receive the cargo as delivered within reach of the vessel's tackles within the period of 15 1/2 days, and that he will pay demurrage day by day for any delay beyond that time, caused by his own default. Carver on Carriage of Goods by Sea, Sec. 608.

The first question is, when was the vessel ready to discharge cargo so that the lay days began to run? Was it on March 10th, when she was ready to go into her berth had it been clear, as the libelant contends, or March 14th, when she actually did get in, as the respondents claim? March 8th the vessel arrived at Red Hook, reported, and was ordered to a slip at 149th street, Harlem. She proceeded the next day to that place, but was obliged to lie outside another vessel at the bulkhead until March 14th before she could get into her berth. Although...