United States v. Coal Cargo

• Decision Date: 16 October 1924
• Docket Number: 96.,No. 95,95
• Citation: 11 F.2d 805
• Parties: UNITED STATES v. COAL CARGO OF THE HENRY COUNTY. SAME v. COAL CARGO OF THE FRANKLIN COUNTY.
• Court: U.S. District Court — Western District of Pennsylvania

11 F.2d 805 (1924)

UNITED STATES v. COAL CARGO OF THE HENRY COUNTY.

SAME v. COAL CARGO OF THE FRANKLIN COUNTY.

Nos. 95, 96.

District Court, E. D. Pennsylvania.

October 16, 1924.

George W. Coles, U. S. Atty., and Joseph L. Kun, Asst. U. S. Atty., both of Philadelphia, Pa., and Harold F. Birnbaum and Arthur M. Boal, both of Washington, D. C., for the United States.

T. Catesby Jones and James W. Ryan, both of New York City, and Howard H. Yocum, of Philadelphia, Pa., opposed.

McKEEHAN, District Judge.

These two cases were tried together. They are libels by the United States of America, as owner of the steamers Henry County and Franklin County, to recover from the respondent demurrage charges alleged to have been earned in the port of Philadelphia in June and July, 1920; the claim on the Henry County being $60,842.58, and on the Franklin County $57,095.71.

By two contracts of affreightment, dated May 28, 1920, the libelant agreed with William Jacks Company, Limited, of Scotland, to carry on each of these vessels a full and complete cargo of about 3,150 tons of coal from Philadelphia, Baltimore, or Hampton Roads to one safe French Atlantic port. The relevant clauses of the contracts, which were identical, are as follows:

"Witnesseth, that the said party of the first part agrees to freight on the said steamer from Philadelphia, Baltimore, or Hampton Roads — one loading port to be declared before vessel sails from New York — to one safe French Atlantic port (see addenda 1, reverse side), or as near thereunto as she may safely get and always lie afloat, and there deliver a full and complete cargo of about 3,150 tons of coal on the terms following:

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"3. The act of God, restraint of princes, rulers and people, fire and all and every other dangers and accidents of the seas, rivers, and steam navigation of what nature and kind soever, riots and strikes always mutually excepted.

"4. Lay days for loading, if required by the party of the second part, not to commence before June 5, 1920; otherwise, lay days to commence from time steamer is ready to load (or within forty-eight hours after readiness to load, if delayed awaiting turn at berth) and master has given notice in writing of such readiness to the party of the second part or his agent, who is ____. Should the steamer not be ready for cargo at her loading port on or before June 25, 1920, the party of the second part, or his agent, may at his option cancel this contract of affreightment at any time not later than the day of the steamer's readiness to load. Cargo to be loaded into steamer with customary dispatch, in accordance with the rules of the port of loading, but in no case at less than 1,500 tons per running day, Sundays and legal holidays excepted. Any time lost through riots, strikes, lockouts, or disputes between masters and men, at docks, or by reason of floods, frosts, fogs, or storms, or by reason of accidents to ship's tackle, winches, equipment, or other disability of the ship which prevents her taking cargo, that occasions a stoppage of delivery of coal to said steamer is not to be computed as part of the loading time. In the event of any stoppage or stoppages arising from any of these causes and continuing for a period of six running days from the time when the steamer is ready to load, the party of the first part may, at its option, terminate this contract, without prejudice, however, to any rights of action which it may have; if any cargo shall have been loaded prior to the exercise of this option, same shall be discharged at the risk and expense of the party of the second part.

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"6. Also, that for each and every day said steamer is on Demurrage at either loading or discharging port, the party of the second part, or agent, shall pay to the party of the first part, day by day, demurrage at the rate of one dollar per net registered ton of steamer per running day, or pro rata for part of a day."

On the afternoon of June 18th, or morning of June 19th, the respondents' agent directed the libelant's agent that the vessels would load at Philadelphia. The letter conveying these instructions was dated June 19, 1920, and reads: "We hereby beg to advise that both the above vessels will load at Philadelphia, and should report immediately on arrival there to the Maryland Coal & Coke Company at Port Richmond piers. This cancels all previous instructions regarding the loading of these vessels."

The Henry County sailed from New York on June 20th at 11:30 a. m., and arrived at Philadelphia and reported as ready to load on June 21st at 1:25 p. m. The Franklin County sailed from New York on June 20th at 6 p. m., and arrived at Philadelphia and reported ready to load on June 22d at 9 a. m. About a month elapsed before the vessels were actually loaded. The Henry County was assigned a berth on July 23d at 9:20 a. m., docked at noon on that day, and was completely loaded on July 27th at 1:15 p. m. The Franklin County was assigned a berth on July 26th at 3:45 p. m., docked at 6:20 p. m. on that day, and was completely loaded on July 28th at noon. A few days later, August 2d, both vessels cleared, the Henry County at 10:45 a. m. and the Franklin County at 10:30 a. m.

The defenses are, first, that the delay in loading was caused by a strike, which was an excepted cause in the contract; second, that the libelant, through Service Order No. 6 of the Interstate Commerce Commission contributed to the delay in loading the vessels; and, third, that the libelant failed to prove that the vessels were ready to load at Philadelphia on June 21st or 22d. The libelant replied to these defenses, first, that the respondent failed to use due diligence by designating Philadelphia as the loading port after the strike had been declared there, and in failing to provide a cargo at the Greenwich piers in Philadelphia, when the Port Richmond piers were hampered by the strike; second, that Service Order No. 6 did not prevent or delay the loading of the ships, and that, even if it did, it was not a hindrance interposed by the owner of the vessels, within the meaning of the law; third, that the evidence of the readiness of the vessels to load was sufficient.

The strike referred to occurred at Port Richmond on June 18th between 4 and 6 p. m. Between these hours all of the trainmen employed there, some 380 in number, walked out. It was the so-called "outlaw strike of switchmen," which affected a number of roads in varying and intermittent degrees during the spring and summer of 1920. This strike resulted immediately in a practical tie up at Port Richmond, as the trainmen were the ones who brought or "drilled" the cars from the classification yards to the pier, and it was impossible to load vessels without them. A few of the men were induced to return promptly. Strike breakers were also employed, and after two or three days partial operations were resumed, and proceeded at about one-fourth of normal until August 12th, when the strikers returned to work. A similar strike occurred at the Greenwich piers, the other coal-loading point in Philadelphia, which largely tied up operations at that place on June 20th and 21st, though it was not so severe as at Port Richmond, and operations were soon restored to normal.

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