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‘ ¢ z | MARITIME LAW. . HAWGOOD “AND OTHERS V. ONE THOUSAND! THREE HUNDRED AND TEN TONS OF COAL, (Dis. Court, E. D. Wisconsia, June 14, 1884.) DEMURRAGE—LIEN—BILL OF LADING. A ship owner has « lien upon the cargo for demurrage, enforceable in the admiralty, although the bill of lading contains no de- murrage clause. In Admiralty. Markham & Noyes, for libelants. ‘’heodore G. Case, for claimant. / Dyer, J. On the seventeenth day of August, 1882, R. R. Hetford, xs agent for Pratt; Parker & Co., shipped on board the following named vessels, at Buffalo, certain cargoes of coal, all consigned to A, Pugh & Co., care of Greeu Buy, Winona & St. Paul Railroad Company at Green Bay, Wisconsin, namely: On board the steamer Belle Cross, —which was a steambarge engaged in tow- ing other vessels and carrying cargoes upon the lakes,—317 tiet tons of Blossburg coal; on ~bourd the sailing barge Chicago Board of ‘Trade 693 gross tons of chestnut coal; on board the sailing barge George H. Wand, 688 gress tons of stove coal; on board the suiling barge Little Jake, 654 net tons of stove coal; ard on board the sailing barge S. Clement, 783 net tons of stove coal; all of which vessels the libelants were the owners. Freight was paid at the rates of 85 cents per ton for the curgo of chestnut coal, and 90 vents per ton for all the other cargoes. ‘The bills of lading provided that the consignee was to discharge cargoes without expense to the masters of the vessel, who were to col- lect the freight, but they contained no stipulation as to the time within which the cargoes were to be unloaded at their destina- tion, nor as to the payment of demurrage in case of detentions in unloading. ‘Thé vessels: sailing as a fleet, left Buffalo with their eargoes about August 17th, and arrived at Green Bay on the 28th of that month. They were there detained, in part, because of the previous arrival of other vessels awaiting discharge of cargoes, but principally for want of facilities for unloading, until the fifth of September, when the last of the fleet was unloaded. The entire cargoes were placed upon the docks of the railrond com- pany, but a pertion of the coal was unloaded . under an aseertion of a lien for demurrage, and a special custodian thereof was placed in charge by. one of the libelants and continued in charge until the coal was geized by the marshal upon monition issued in the present suit. The libelants’ right to recover is con- tested upon every ground of defense sct up in the answer, but the only question that will be considered in this opinion is: that of the right of the libelants to maintain this suit in rem upon their claim for demurrage. The contention of counsel for the claimant is that in the absence of any stipulation in the bills of lading limiting thetime within which the -cargoes should be unloaded, or providing for the payment of demurrage in case of un- reasonable dencntion, the libelants can assert no lien upon the cargo tor logs or damage occasioned by such detention; and therefore that in such case a suit (2 rem is not maintain- blein admiralty, but that the remedy of the owners of the vessels, if any, is one ex- —~ clusively in personam against the vonaignee of the cargoes. From quite an early period there has been a good deal of controversy in the common-law courts, and later in some of the admiralty courts, upon the subject ot the rights of shipowners and other carriers with reference to claims for demurrage. ‘The ques- tion seems to have moat frequently come up in suits between shipowner and consignee, and hence direct authority is not abundant upon the precise point here in judgment. ‘'wo English cases (Phillips v. Rodie, 15 East, 647, and Birley v. Gladstone, 3 Maule & 8. 205) are much relied on in argument by counsel for the claimant, who insists that they declare to this day the law governinga case like the present. Both were common- Jaw actions. Phillips v. Rodie was a suit in trover, brought by the assignee in bank- rupecy of the charterer of a vessel and con- signee of the cargo for 179 bales of cotton which were in the possession of the ship- owner, and held by him on a claim for dead freight and demurrage.’ It was decided that «where the freighter of a ship covenanted that if ghe should not be fully laden he would nét only pay for the goods on board, but also for so much in addition as the ship would have carried for which he had stipulated to pay freight according to different rates, the ship-owner had no lien upon the goods actually on board for the amount of the dead freight ;/in other words, for the compensa- tion in damages which he was entitled to for the freighter’s breach of contract in not putting a full loading on board. ‘The ground on which the judgment of the court pro- ceeded seems to have been that there was nothing to which a lien could attach. ‘The claim was for freight not earned and which it was claimed, the ehipowner ought to have earned, or unliqnidated compensation for the loss ot freight recover- able in the absence ard place of freight. Nothing was said about demurrage, apart from the question of dead freight; but, Ws the shipowner’s claim included demurrage, and as it was held that the plaintiff could matntain bis action, it must be implied that the judgment of the court was that there was no lien upon the goods, either for dead freight or demurrage. Birley v. Gladstone was an action by the assignee of the freighter toe recover money paid by him under protest which money was demanded by the shipown- ers in respect of goo’s which were put on board the vessel at the loading port, but were afterward relanded and restored'to the agent of the freighter, under process of law, at the loading port, and for dead freight and demur- rage.'The actiomwastussumpsit. By the charter party the shipowner covenanted to receive a full cargo, and the freighter to load the same, and to pay so much for every ton of freight which should be delivered at the King’s beams, at Liverpool, and so. much per diem for demurrage. ‘The parties mutally bound themselves—the shipowners the ship, and the freighter the gouds to be laden on-board —ina penal sum for the performance of every article contained in the charter party ; and it wus adjudged that the shipowners had no lien upon the goods actually ,brought home to Liverpool for the sum of money claimed to be due on account or goods: which were put on board at the loading port, but after- ward re landed and restored to the freight- ers’ agent under process of law at such port, nor for the sum claimed for dead freight and demurrage; and Phillips v. Rodie was cited in the judgment as decisive authority upon the points. : It would, perhaps, be“enough to gay of these cases that as they were suits at com- mon law, requiring judgments upon the| common-law rights of the parties, they are ton to be -regarded as declaratory of the principles ef law which now govern courts of admiralty in determining questio..s like the present. In this connection the remarks of Judge Lowell, in the case of The Hyperion’s cargo, 2 Low. 94, are very pertinent. He says: F “When the common-law of England was modified by the intreduction of many rules from the law-merchant, the former law had no process for enforcing thia reciprocal privilege of the ship and the goods, [that is, the privilege which had its origin in the rule that the ship is bound to the merchan- dise and the merchandise to the ship,] and had succeeded in.repressing the only court that had Abie fequisite modes of action, and was therefore obliged to say that it could not recognize the maxim even when embodied in express contract, as it usually is in English charter parties. Birley v. Gladstone, 3 Maule & S. 205; Gladstone v. Birley, 2 Mer. 401. From the time of those decisions to that ot Gray v. Carr, L. R. 6°Q B. 522, the history of this question in the courts of common-law in England has been that of « struggle between the shipowners to create liens by stipulation, especially liens for demurrage, and of the courts to narrow the stipulations by construction. See Phillips v. Rodie, 15 Kast 547; Faith v. E. Ll. Co. 4 Bard. & Ald 630; How v. Kirchner, 11 Moore, @. C. 213 ‘Tindal v. Taylor, 4 El. & Bl. 219; Bishop v. Ware, 3 Camp. 860. In nearly all the cases the obvious intent of the parties has been disregarded, and a remedy refused ; fora violated right. In this country the course of admiralty have retained their, proper] tion, jusiediction, and can_ enforce the privilege by whichever party th's’ action may be in- voked. Dupont de Nemours v, Vance, 19 How. 162; ‘The Belfast, 7 Wall. 624; The Maggie Hammond, 9 Wall. 4650,” And upon the point whether the privilege extends to demurrage, not expressly stipu- lated for in the bill of lading,— “The cuses at common-law do not ‘afford much ald, because they recognize no general reaponsibility of the goods to the ship, but only a right of retainer, which they say can- not be conveniently exercised in support of a demand for unliquidated damages,—a point of no consequenc in the admiralty.” These remarks are applicable to the cases of Crommelin v. N. ¥.& H.R. R. Co, 4 Keyee, 90, and C, & N. W. Ry. Co. v. Jenkins, THE MARINE RECORD v 108 Ill. 588, cited on the argument. once held, and by some courts ig yet held, that, in the absence of a stipulation in the bill of lading providing for the payment of demurrage, no claim for damages can be made. In Jesson vy. Solly,4 Taunt. 52, it was decided that if a consignee accept goods under a bill of lading, at the bottom of which isu memorandum that the ship is tobe cleared in 16 days, und £8 per day demurrage be paid after that time, the master, upon (e- livery of the goods, may recover demurrage against the consignee. In Brouncker v. Seott, 4 Taunt, 1, which wasasnit in assumpsit by the master of a ship upon an implied promise to pay demurrage, Mans- field, C.J, said: : ‘ “This forig of action for demurrige, without a special contract to that effect, is not of long standing, even in the case where the owners of the ship are the plaintiffs; and, us it generates a question whether the time elapsed was a reasonable time, and also what is a rensonable compensation for the use of the ship, it would be much better if it had not been encouraged, and if the owner had always made it a subject of special con- tract.”” See, also, Young v. Moeller, 5 El. & Bl. 755, and Kell v. Anderson, 10 Mees. & W. 498, -And in Gage v. Morse, 12 Allen, 410, which was a suit at law by the owners of a vessel against the consignee named in the bill of lading for demurrage, it was held that it a bill of lading contains no provision for the payment of demurrage by the consignee, he is not liable therefor, even upon his ac- ceptance of the cargo; citing Jesson v. Solly and Young v. Moeller, supra, and Chappel v. Comfort, 10 C. B. (N. S.) 802, and Smith v. Sleveking, 5 El.-& Bl. 589. But it was held otherwise in admiralty, where the con- signee was the freighter, in Sprague v. West, 1 Abb., Adin, 548, a leadiug cuss, decided by Judge Bette, in which, upon a review of the authorities, he said: “Courts of admiralty act upon the rights arising out of maritime transactions, without regard to modes ‘or names of actions, and independent of all forms. ‘The suggestion that demurrage can be claimed upen the footing of express contract alone ts un- doutedly giving too narrow an effect to the term. Every improper detention of a vessel may be considered a demurrage, and com, pensation in that name be obtained for it, 2 Hagg. Adm. 317; The Apollon, 9 Wheat! 362.7 a In The M. 8. Bacon v. ‘l'ransp. Co. 3 Fed. Rep. 344, it was held that an express stipa- lation for demurrage in a contract of affreight. ment ig not neceasary to entitle the owner of a vessel to compensation for her un- necessary or improper detention in loading or unloading: “Reasonable promptitude in delivering a cargo to its point of shipment, and in receiving it at its destination, fsa duty implied in such contracts; and fora violation of it, damages, in the nature of demurrage, are recoverable. ‘his is too well-settled, both in England and in this country, to need discussion or authority.” The obeervations of Judge Blodgett in Fulton v, Blake, 5 Biss. 376, 876, are also in point: u ‘All persons engaged in dealing with ships whether master, crew, or consignee, are bound to give them dispatch, and whatever causes any unreasonable delay is answerable in damages. A consignee to whom the cargo ot a vessel is consigned should, within the time prescribed by the usnge of the port, atter notice of the arrival of a vessel, furnish asuitable place for unloading or he shall pay damage for detention, whether de- murrage be noted on the bill of lading or not. It may not be what is technically called demurrage in the booke, but it is damages for unreasonable detention, unless the vessel has arrived so fur out of her expected time as to make such prompt dispatch unreason- able.” See, also, Cross v. Beard, 26.N. Y 85. It ia ppparent that, in the present state of decision, there is no ground for the conten- at least in a court of admiralty, thot the right to maintain a claim for demurrage for unreasonable detention of a vessel is de- pendent upon the existance of a demurrage clause in the bill of lading. ‘hat an admiralty action in personam will lie, in such case, against the consignee of the cargo, if he is responsible for such detention, Is also be- yond question, whether the bill of lading contains any stipulation on the subject or not. Why has not the ship owner also alien on the cargo for demurrage, and why may not such a lien be enforced In the admiralty ? Demurrage is inerely.an allowance or com pensation for the delay or detention of a vessel, The Appollon, 9 Wheat, 362, It is It was only an extended freight or reward to the vessel in compensation of the earnings she is improperly caused to lose, Sprague y, West, supra; Holt, Rule Road, pt. 3,¢e.1, Why should the right of the ship owner be limited in the admiralty to a common-law lien, when, In fact, that rivht je-dependent on the law-merchant, which extends the lien or privilege to all charges, damages and ex. penses growing out of the affreightment? By the general maritime law, the ship is bound to the merchandise and the merchan- dise to the ship. It is the doctrine of the law- merchant that the master or ship owner con- tracts rather with the merchandise than with the shipper; and, as 1s remarked by Judge Shepley in. Donaldson y, McDowell, 1 Holmes, 290, ‘*it necessarily follows from this that the merchandise is liable ever the shipper ia liable.” It is that are unliquidated, such as salvage claima, demands for injury to goods, and claims on account of non-delivery of cargo. In the present extended jurisdiction of the admi- ralty, and liberal recognition of the rights of purties interested in lake navigation and commerce, no sound reason is apparent why the ship owner’s privilege or lien should not be extended to demurrage. - ‘lhe rela- tion of the ship to the cargo and of the cargo to the ship is reciprocal. If the ship is bound,to safely deliver the cargo tothe con- signee, without exemption. from liability, except such a8 may be named in the bill of ladiNg; the cargo ought to be answerable for the neglect of the consignee to duly re- ceive it. ‘The cargo may be libeled for frieght. Why not for the extended freight which the vessel is improperly - caused to lose, where as in this cuse, the consignee ia the owner of the cargo? Tt may be libeled for general average and numerous other de- mands. ‘‘As in this country courts of ad- wwiralty exercised their jurisdicton to enforce * the privilege where the cargo has been libeled for freight, general average and other charges, theré seems to be no just ground for making an exception and refusing a remedy for a violation of duty and right in the case of demurrage, which, under circumstances. like those in the present case, is as much a charge or damage which. the master may lawfully demand, and for which he has a privilege against the cargo as the freight itself, of which demurrage is only an extell- sion’ Donaldson v. McDowell, supra. In that case, and,in the case of the Hyperion’s cargo, supra, it was adjudged that tlie ship has a privilege against the cargo for demur- rage or damages, in the"nature of demurrage, enforceable in the admiralty, when the car- go has net been received within.a reasona- ble time, through the fault of the consignee, although the bill of lading contains no de- murrage clause; and it would, undoubtedly, had been sufficient had I simply referred to those cases, and to the reasoning of the learned judges who decided them, as quite conclusive on the question. See also, 275 ‘Tons_of mineral phosphates, 9 Fed. Rep. 209. But the course of argument has led me to consider the question and the authorities at some length, and I am constrained to say that if the question were an original one I shonld have little hesitation in coming to the conclusion announced. The libelants received from the consignee, or the con- signee’s representative, the freight money due them, but it was received under protest and subject to the demurrage claim; and, upon the facts shown, I am of the opinion that the lien for demurrage was not waived ror lost by reason of anything that transpired infJrelation to delvery of the cargoes or re- ceipt of the frelght moneys. > Decree for libelante. Unless the propeller Oregon, which is now at Buffalo, can obtain a cargo of coal at $1 from Buffalo she will lay up. DurinG the month of October 83 seagoing vessels arrived at Moitreal, Of these were steamers, with a tonnage of 77,598 tons; 12 barke, 7,013 tone; 2 brigantines, 256 tons, and 11 schooners, 1,020 tons, Total tonnage, 85,887 tons, —— A Detroit exchange says: The tug Pho- nix has succeeded in releasing the schooner Venus, which went ashore on Stony Island, near the mouth of the river, Tuesday after- noon, ‘The vessel is now unloading coal at Baugh’s whart in Springwells, and appears to be uninjured.