Lobbins v. McDonald

20 F. Cas. 864, 2 Low. 140

Opinion

LOWELL, District Judge.

No evidence of usage has been given, and no authorities have been cited to fix the limits of the port of Boston as a term of description in a bill of lading in the coasting trade; nor have IJiound it necessary to inquire carefully into that subject, because, admitting that the wharf of the-Lowell Railroad Company at East Cambridge is not within those limits, and that the consignee had no right to order the schooner to that wharf under pain of not earning freight in case of a refusal; and admitting further, that the freight was already earned before-December 13,1 am of opinion that the master, coming into a court of admiralty for damages, ought to show that the wharf proposed to be substituted was one at which he could not safely or conveniently unload his cargo, for some reason. The situation of the parties was this on the 13th of December: The time allowed by the contract for receiving the cargo had expired; the master was not bound to wait longer; he might land his coal at some-other wharf, at least after notice to the consignee, and would have earned his freight. If he did wait, the consignee was bound to pay so much a day; and his assent to the waiting will usually be presumed. Now, suppose the master waits against the wish of the consignee, who has expressly authorized and required him to land the goods at another wharf, it seems to me that I could not interfere and say the master is entitled to wait until the wharf mentioned in the contract is free, against the expressed wish of the other party, at whose expense he is waiting. Suppose the consignee had sent lighters alongside, and offered to pay any additional' expense that might come from discharging in that mode. Here a wharf, close at hand, safe and convenient, was offered him; and if It be divided by a political line from the port of Boston, — which I do not decide, — yet if no question of insurance or any other made a real difficulty, it seems to me he ought to have yielded, or, if not, that he cannot in this court recover the subsequent demurrage. The wharf was not named in the bill of lading for the benefit of the master, but for that of the consignee; and if, on the arrival of the cargo, it happens that the latter cannot avail himself of that wharf, I am by no means prepared to say he may not order delivery at another. My decision, however, does not turn upon this, but upon the ground that if the master unreasonably insisted upon what I assume to be a strict right, he ought not to expect damages in a court of admiralty, when the detention ¡was from choice rather than necessity.

The evidence does not enable me to assess the damages, because it does not give the number of days that were spent after the thirteenth before the vessel was hauled in. Assuming that the time of actual unloading would be the same at both wharfs, there should be deducted from the eleven days for which demurrage is demanded only so many as the vessel lay idle after the offer was made. I understood it to be admitted that a tender was made of eight days’ pay, and I suppose this is about what is due, according to the rule above laid down. Interlocutory decree for libellants. Damages to be assessed on the footing of this opinion. Question of costs reserved.