Yone Suzuki v. Central Argentine Ry. Co.

• Decision Date: 27 June 1921
• Parties: YONE SUZUKI et al. v. CENTRAL ARGENTINE RY. CO., Limited, et al.
• Court: U.S. District Court — Southern District of New York

275 F. 54

YONE SUZUKI et al. v. CENTRAL ARGENTINE RY. CO., Limited, et al.

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

June 27, 1921

This cause comes up on exceptions by the libelants to four articles of the answer of the Central Argentine Railway Company, one of the respondents in personam. The libel was filed primarily against the charterer of two Japanese schooners, owned by the libelants and chartered each for a voyage from Hampton Roads, Va., to Buenos Ayres, Argentine with a cargo of coal. The Central Argentine Railway Company Limited, is sued as consignee of the coal and holder of a bill of lading of the whole cargo in each ship, and the circumstances on which the liability arises are as follows:

The charters provided, among other things, for lay days for loading and discharge, and demurrage at 48 cents per gross registered ton for each day that the ship was held beyond the lay days. It also contained the following provisions material hereto:

8. Bills of lading to be signed without prejudice to this agreement at not less than rates as stated herein.'

9. The liability of the party of the second part (the charterer) shall cease and terminate as soon as cargo is loaded and the freight is paid, steamer to have a lien upon the cargo for all freight, dead freight, and demurrage, and all and every other sum or sums of money which may become due the steamer under this contract of affreightment.'

The libel alleges that there were delays beyond the lay days both at the port of loading and the port of discharge, from which arose demurrage; also that at the port of discharge the ships had to pay various charges for stevedoring and the like properly payable by the respondents, which they refused to meet. It further alleges that at the port of loading the charterers deducted certain of the freight money due under a false claim of dispatch money, as provided in the charter party. This deduction the libelant claims in addition to the loading demurrage and the demurrage and charges at the port of discharge. It further alleges that the master of each steamer signed a single bill of lading for the whole cargo to be transported to Buenos Ayres to 'order or assigns he or they paying freight for the same as per charter party, dated February 16, 1920, all the terms and exceptions contained in which charter are herewith incorporated. ' It finally alleges that the respondent Central Argentine Railway Company, Limited, 'became the owner of said bill of lading and entitled to said cargo, * * * subject to the conditions and exceptions of said bill of lading and of the aforesaid charter party of February 16, 1920, including the claim for demurrage at loading port and unpaid balance of freight as aforesaid,' and that after much delay it took delivery of the coal under this document.

The articles of the answer excepted to allege that the Central Argentine Railway Company, Limited, took discharge of the cargo from the ship's tackle, and that by reason thereof the ship's lien was lost and the respondent was not liable. As to the charge for freight deducted, the answer alleges that the bill of lading under which the cargo was shipped provided, among other things, that 'freight on the cargo had been prepaid,' that by reason of that provision the lien, if any, was not incorporated into the bill of lading, and the respondent, in taking delivery received it free from any lien for unpaid balance of freight.

George C. Sprague, of New York City, for exceptant.

Edwin Serre Murphy and L. De Grove Potter, both of New York City, for respondent.

LEARNED HAND, District Judge (after stating the facts as above).

The liability for demurrage comes first, and this may be divided into two parts, demurrage at the port of loading and demurrage, and charges at the port of discharge. As to the latter, the authorities are so numerous and uncontradicted that nothing more need be done than cite them, Neilsen v Jesup (D.C.) 30 F. 138; Gates v. Ryan (D.C.) 37 F. 154; Sutton v. Housatonic (D.C.) 45 F. 507; Taylor v. Fall River Iron Works (D.C.) 124 F. 826; Crowley v. Hurd (D.C.) 172 F. 498; Vane v. A.M. Wood & Co. (D.C.) 231 F. 353; Union Pac. R.R. Co. v. American Smelting & Refining Co., 202 F. 720, 121 C.C.A. 182. As I said in Vane v. A.M. Wood & Co., supra, the liability of the consignee appears to be regarded as arising from an implied contract; the lien being surrendered upon a promise to pay the charges. The promise should be commensurate with the lien, as was expressly held in White & Co. v. Furness Withey & Co. (1895) A.C. 40. It is generally said that the surrender of the lien and acceptance of the goods are...