Booye v. A Cargo of Dry Boards

E.D. New York

Booye v. A Cargo of Dry Boards

42 F. 335, 1890 U.S. Dist. LEXIS 152

DecidedMay 10, 1890

StatusPublished

This text of 42 F. 335 (Booye v. A Cargo of Dry Boards) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Booye v. A Cargo of Dry Boards, 42 F. 335, 1890 U.S. Dist. LEXIS 152 (E.D.N.Y. 1890).

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Opinion

Benedict, J.

This is an action to recover three days’ demurrage in loading the libelant’s vessel at Atlantic City, Norfolk, Va., and five days’ demurrage in discharging the vessel at New York.

In regard to the detention in Atlantic City in loading the vessel, the fact is undisputed that the vessel was detained three days, and that the detention arose solely from the fact that the weather was rainy, and that the boards, having been kiln-dried, could not be put on board in such weather without damage. The provision of the charter was as follows:

“It is agreed that the lay days for loading and discharging shall bo as follows, if not sooner dispatched: Drom the time the vessel is ready to receive or discharge cargo, 80,000 feet per day, Sundays excepted, to be furnished for loading, and quick dispatch for discharging, and that for each and every day’s detention of the vessel by default of said party of the second part, or agent, @25.00 per day, day by day, shall be paid by said party of the second part to the party of tiie first part, or agent. The cargo or cargoes to be received and delivered along-side, in reach of tho vessel’s tackles, at ports of loading and discharging. ”

There is no dispute as to the fact that the vessel was ready for loading at Norfolk at the appointed time, and that, if 80,000 feet of boards had been furnished her each day, she w'ould have been loaded three days sooner than she was. Nor is there any dispute as to the fact that the sole cause or failure of the charterer to deliver the boards along-side the vessel as agreed in the charter- party was that the weather was rainy, and the boards, which were kilu-dried, would be damaged if loaded in the rain. Under such a contract, absolute in its terms, for the delivery to the vessel of 80,000 feet of boards per day, I am of the opinion that the . .'sk of the weather is assumed by the charterer. It would have been so easy to have said “weather permitting” that the absence of words of that import indicate an understanding that the weather was at the risk of the charterer. The words “by default of the party of the second part” mean the default in furnishing 30,000 feet per day along-side tho vessel for the loading thereof. Thiis v. Byers. 1 Q. B. Div. 244.

In regard to the detention of the vessel In New York in unloading, the evidence makes it clear that the delay was by fault of the master of the ship in not proceeding to the place designated for the discharg[336]*336ing of the cargo on Saturday, or even Monday morning. If he had arrived at the place on Monday morning, even, it is evident that he would h^ve been discharged at once.

The libelant must recover for three daj^s’ detention at Atlantic City at the'.rate- provided in the charter. Let a decree be entered in favor of the'libelsint for $175 and costs.

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Benedict, J.

This is an action to recover three days’ demurrage in loading the libelant’s vessel at Atlantic City, Norfolk, Va., and five days’ demurrage in discharging the vessel at New York.

In regard to the detention in Atlantic City in loading the vessel, the fact is undisputed that the vessel was detained three days, and that the detention arose solely from the fact that the weather was rainy, and that the boards, having been kiln-dried, could not be put on board in such weather without damage. The provision of the charter was as follows:

“It is agreed that the lay days for loading and discharging shall bo as follows, if not sooner dispatched: Drom the time the vessel is ready to receive or discharge cargo, 80,000 feet per day, Sundays excepted, to be furnished for loading, and quick dispatch for discharging, and that for each and every day’s detention of the vessel by default of said party of the second part, or agent, @25.00 per day, day by day, shall be paid by said party of the second part to the party of tiie first part, or agent. The cargo or cargoes to be received and delivered along-side, in reach of tho vessel’s tackles, at ports of loading and discharging. ”

There is no dispute as to the fact that the vessel was ready for loading at Norfolk at the appointed time, and that, if 80,000 feet of boards had been furnished her each day, she w'ould have been loaded three days sooner than she was. Nor is there any dispute as to the fact that the sole cause or failure of the charterer to deliver the boards along-side the vessel as agreed in the charter- party was that the weather was rainy, and the boards, which were kilu-dried, would be damaged if loaded in the rain. Under such a contract, absolute in its terms, for the delivery to the vessel of 80,000 feet of boards per day, I am of the opinion that the . .'sk of the weather is assumed by the charterer. It would have been so easy to have said “weather permitting” that the absence of words of that import indicate an understanding that the weather was at the risk of the charterer. The words “by default of the party of the second part” mean the default in furnishing 30,000 feet per day along-side tho vessel for the loading thereof. Thiis v. Byers. 1 Q. B. Div. 244.

In regard to the detention of the vessel In New York in unloading, the evidence makes it clear that the delay was by fault of the master of the ship in not proceeding to the place designated for the discharg[336]*336ing of the cargo on Saturday, or even Monday morning. If he had arrived at the place on Monday morning, even, it is evident that he would h^ve been discharged at once.

The libelant must recover for three daj^s’ detention at Atlantic City at the'.rate- provided in the charter. Let a decree be entered in favor of the'libelsint for $175 and costs.

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Bluebook (online)

42 F. 335, 1890 U.S. Dist. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booye-v-a-cargo-of-dry-boards-nyed-1890.