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not to accept) that then it should go in and occupy the market in the territory named, and it also appearing that the agreement was beneficial to the plaintiff in the absence of any agreement to accept and take and pay for the product in any event, and the obligations of the defendant assumed by it being fully and carefully expressed, it would be making a new contract for the parties and importing into it a covenant and obligation not contained therein by either necessary or fair implication to hold that defendant has agreed to accept or take the product in the amounts specified. This is not of that class of cases where the one party orders of another certain goods to be manufactured by him, and that other agrees so to do, and nothing is said about acceptance or payment. In such a case the law would imply a promise both to accept and pay for the articles when made.
Findings of fact and conclusions of law in accordance with this opinion will be prepared and submitted for signature.
The complaint will be dismissed on the merits.
UNITED STATES SHIPPING CO. V. UNITED STATES.
Circuit Court, D. New Jersey. July 11, 1906.) 1. ADMIRALTY-JURISDICTION-SUIT AGAINST UNITED STATES.
Admiralty jurisdiction in a suit in personam is not dependent on a right to proceed in rem, but upon the subject-matter of the suit, and a suit against the United States, brought under the provisions of Act March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752], and based upon a maritime contract of affreightment, is within the admiralty jurisdiction of the Circuit or District Court.
[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Admiralty, $8
131-149, 185–190.] 2. SHIPPING-CONSTRUCTION OF BILL OF LADING-TIME FOR DISCHARGING.
A provision of a bill of lading that the cargo shall be "received by the consignee immediately the vessel is ready to discharge, and continuously at all such hours as the custom house or port authorities may give permission for the ship to work," means only that the discharge shall be reasonably continuous, considering the time, place, and circumstances, the nature of the cargo, the situation of the vessel, and pre
vailing conditions generally. 3. SAME-DEMURRAGE.
Libelant contracted with a naval officer of the United States to carry ammunition and naval stores from the Brooklyn Navy Yard to the naval station at Cavite, Philippine Islands, to be there received, and immediately and continuously discharged by the consignee. A state of war prevailed in the Islands at the time, Cavite was not a port of entry, but merely a naval and military station, and owing to the nature of the cargo and the prevailing conditions the regulations required it to be discharged only in the daytime by means of government lighters, and that no more should be discharged in a day than could be deposited in the arsenal on shore the same day. Held, that all such conditions which were known to the parties rendered the regulations reasonable, and must be presumed to have been contemplated by the parties; that the United States was not liable for demurrage because of delay in discharging, in so far as it was carried on with reasonable dispatch under such regulations, but that it was liable for delay due to the failure to keep all of the lighters engaged in the work in use during
such hours as they might have been, and transferred their cargoes to the arsenal before night.
[Ed. Note.-Demurrage, see notes to Harrison v. Smith, 14 C. O. A. 657; Randall v. Sprague, 21 O. C. A. 337; Hagerman v. Norton, 46
C. C. A. 4.] 4. SAME-MEASURE OF RECOVERY.
In the absence of contract, the charter price per day of a vessel under a time charter is not the measure of demurrage recoverable for delay in discharging cargo taken by the charterer for another, but rather the probable net earnings of the vessel during the time lost in the usual course of its employment.
[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Shipping, $ 593.]
Wing, Putnam & Burlingham and Henry E. Mattison, for petitioner.
John B. Vreeland, U. S. Dist. Atty., and H. P. Lindabury, Asst. U. S. Dist. Atty.
CROSS, District Judge. The petitioner, a time charterer of the steamer Trunkby, has filed a petition against the United States of America to recover demurrage of the amount of $1,702.75, which is alleged to have been caused by the detention of said vessel at Cavite, Philippine Islands, by the respondent in the month of June, 1900. The petitioner is a corporation organized under the laws of the state of New Jersey, and in bringing this suit is taking advantage of the jurisdiction conferred upon this court by the act of March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752]. The action is in the nature of a suit in admiralty, and the petitioner prays that the cause may be proceeded with according to the rules of admiralty.
By the act I am required to file a written opinion in the cause, setting forth a specific finding of the facts therein, and also my conclusions upon questions of law involved.
Finding of Facts by the Court. The Trunkby was owned by R. Ropner & Co., and was under a time charter to the petitioner. The vessel was 200 feet long, 45 feet broad, and 20 feet deep; her tonnage was 1668 net, and a dead weight capacity of 4,065 tons. She had six hatches—four large and two small -besides engine-room space. Each large hatch was 24x12 feet. She was also provided with steam derrick and hoisting apparatus, working on either side of the vessel, but there was only room for two lighters to work on each side. The Trunkby first went to Baltimore, where she loaded 2,300 tons of steel rails for Vladivostock, distributed between holds No. 2 and No. 3, and about 100 tons more in holds Nos. 3 and 4. These rails were for railroad use, of the usual length and weight, and were stowed in the bottom of the holds. The vessel then proceeded to New York, where she loaded a little over 3,000 bales of cotton, weighing 600 or 700 pounds each, for Yokohama. Three hundred and fifty bales were stowed in hold No. 4 and the balance in No. 2. The ammunition and naval stores were placed in holds Nos. 1, 3, and 4. This space was engaged March 21, 1900, by Ed
win Putman, storekeeper of the New York Navy Yard, for and on behalf of the naval department. He entered into a contract with the petitioner through John R. Livermore, a freight broker of New York, for carriage on board the Trunkby from New York to Manila, or port or ports, from 300 to 400 tons of ammunition and from 600 to 700 tons of naval stores. The agreement provided for the use of the regular Eastern form of bill of lading. On March 31st, under this agreement, there was loaded at New York 1,108,347 pounds of stores and 760,921 pounds of ammunition to be delivered to the general storekeeper at the naval station of Cavite, Philippine Islands, as per bills of lading. These bills of lading provided as follows:
“(6) Also, that the goods are to be received by the consignee immediately che vessel is ready to discharge, and continuously at all such hours as the customhouse or port authorities may give permission for the ship to work, if necessary, to discharge into lighters at the risk and expense of the consignee. And it is expressly understood that the articles named in this bill of lading shall be at the risk of the owner, shipper, or consignee thereof as soon as delivered from the tackles of such steamer at her port of destination, and they shall be received by the consignee package by package, as so delivered, and, if not taken away the same day by him, they may, at the option of the vessel's agent, be sent to store or warehouse, or permitted to lie where landed, at the expense and risk of the aforesaid owner, shipper, or consignee, and be subject to rent.”
And in another paragraph it was provided “that the carrier shall have liberty to convey goods in lighters to and from the ship at the risk of the owners of the goods."
The Trunkby arrived at Manila June 4, 1900, and reported its arrival to the naval officials, and received orders to proceed to Cavite, whither the vessel proceeded, and anchored at 2:30 p. m. June 5. 1900, the master reported the readiness of the vessel to discharge cargo, and obtained permission therefor from the customhouse officials, who placed an officer on board to permit the discharge of cargo at all hours. The master engaged stevedores before leaving Manila. The master, from Cavite by military telegram, ordered the stevedores sent for. The telegram went through the following day. The stevedores consisted of four gangs and a foreman, 34 to 40 men in all. They were furnished by Robinson & McCondray. The stevedores went on board the Trunkby June 6th at evening, and began to discharge cargo June 7th. It was the custom to discharge the ammunition and naval stores from the steamer into government lighters. These lighters were under military guard. The lighters were towed out to the ship, which owing to shallow water was anchored at about one mile from the shore, and when loaded were towed ashore. Other than government lighters were not permitted to be used in the discharge of the cargo. This was by general regulation. An oral request to permit the steamer to employ other lighters was made, but it does not appear to whom, and was refused. Cavite was not a port of entry. All the freight consigned there at this time and for some time previously was for government use. There were no written or printed regulations existing as to the manner of unloading ammunition and naval stores, but, owing to the condition of war and insurrection then
existing, such freight could only be unloaded under government direction, in government lighters, and no more could be taken ashore on any one day than could be stored away in the arsenals at night. When such freight was taken from the lighters to the shore it had to be carried by hand some 200 yards to the arsenal. The discharge of the Trunkby proceeded as follows: June 7th four lighters came to the vessel. Work was stopped at 11:30 a. m., owing to the breaking down of the donkey feed pump. June 8th three lighters came to the ship. The work at No. 1 hatch stopped at 2 p. m., and at Nos. 3 and 4 at 4 p. m., after which no more lighters came out that day. On June 9th work was resumed at 8 a. m. in holds Nos. 1, 3, and 4. One lighter at each hatch. Lighter at No. 3 was loaded at 11:30 a. m., No. 1 at noon, and No. 4 at 2:15 p. m., after which no more lighters came out that day. June 10th, Sunday. June 11th work began with one lighter for each hold at 7 a. m. Lighters at Nos. 1 and 4 hatches were loaded at noon, and the lighter at No. 3 at 3 p. m., after which no more lighters came to the vessel that day. June 12th work was resumed at 6 a. m. in No. 1. Ammunition in that hold finished at 11:30. At ny a. m. lighter was obtained for ammunition in No. 3 hold, and it was loaded at noon. Another ammunition lighter came out at 4 p. m. Work ceased at 5 p. m.
Work ceased at 5 p. m. The lighters all went ashore. June 13th work resumed at 7:30 a. m. Two lighters began loading with ammunition from No. 3 hold, and finished at 12:30. Two lighters loaded with naval stores from No. 1 hatch at 2 p. m. Another lighter came at 2 p. m. to take naval stores from No. 3 hold, and work ceased at 4:45 p. m. June 14th two lighters came for ammunition at 7:30 a. m.; loaded at 3:30 p. m. One lighter loaded with naval stores from No. 3 hold at 5 p. m., and two lighters were loaded with naval stores from No. 1 hold at 4:30 p. m. June 15th two lighters came alongside v a. m., one for ammunition at No. 3 hold, and one for naval stores at No. 1. The ammunition lighter was loaded at 10:15 a. m.; another, which arrived at noon, was loaded at 4 p. m. All the ammunition was then out, and another lighter was loaded with naval stores until 5 p. m. Two lighters
Two lighters alongside of No. 1 hatch were loaded with naval stores from a. m. to 4 p. m. On June 16th two lighters came alongside at 7:45 a. m., took naval stores from hatches Nos. 1 and 3. At 11 a. m. two more lighters came, and at noon another; work stopped at 4:30 p. m. June 17th, Sunday. June 18th two lighters worked at hatches Nos. 1 and 3. At 10 a. m. two more lighters came, and another at 2 p. m.; finished No. 3 hold at 4 p. m.; stopped work at 4:30 p. m. On the 19th the cargo was entirely discharged at 8:30 a. m. The master of the Trunkby endeavored to accelerate the discharge, but was answered by the paymaster at the station that he was sorry, but could not do anything. The master protested against the delay. June 16th master noted a protest before the British consul of the delay in removing the cargo from ship, and on same day made claim on the commandant for four and one-half days demurrage, at £50 sterling per day. June 18th the master sent a letter to the ship's agents, claiming demurrage for seven days, and requesting the agents to make claim for that time. Accordingly, on June 19th, a claim was made upon the commandant through the
agents for two and one-half days additional demurrage, or seven days in all, making a total amount of demurrage claimed £350_sterling. The Trunkby sailed as soon as discharge was completed. June 23d Lieutenant Commander Irwin sent a letter to the agents, stating that delay was due to faulty storage, and that the claim for demurrage was considered unwarranted, but would be referred to Navy Department at Washington. June 29th the commandant sent a letter to Messrs. Kerr & Co., the agents, in which he referred to the master's letter of June 16th, and then stated that, as the delay in discharging was due to faulty storage of the cargo, and the stormy weather prevailing during the last few days of the discharge, there appeared to be no ground for the claim for demurrage. The last three days of the discharge, 16th, 17th, and 18th of June, were very rainy and windy, and very little work, if any, could be done; otherwise than as above, the weather was good. The stevedores remained on board the vessel all the time, but were unable to work at night. There was nothing on the part of the customhouse officials, stevedores, or crew that prevented work in discharging cargo during the daytime. The excuse made on the part of the government and set up in the answer, that the delay in discharging the vessel was caused by stormy weather and faulty storage of the cargo, is not sustained by the evidence, except that it was very stormy the last three days of the time, as above stated, and that consequently little work could be done on those days. Under ordinary conditions, it would have taken from four to five days to discharge the cargo. The captain says that it would have taken only four days to unload at Manila; that it required a much longer time to unload at Cavite than at Manila; that was the general experience among shipping people; that cargo that could be unloaded at Manila in four days would take about three times as long to unload at Cavite; and further, that if he had cargo that he could unload at Manila in four days, it would take twelve days to unload the same cargo at Cavite; that this difference was not due to anything in the anchorage or facilities at Cavite, but simply because the cargo was naval stores. During the discharge of the cargo, the captain was told that the reason for not discharging the cargo in the afternoons was because the officials didn't want the powder to stay in the lighter at night; they were afraid of its getting damp; and also because it was war time, and they were afraid the Filipinos might see the lighters loading, watch them leave the vessel, and try to set fire to the lighters during the night. No general merchandise whatever was discharged at Cavite during this period; all that was discharged there was for the government. The captain also testifies in answer to the question, “Why didn't you unload the material yourself, at your own risk?” That it was impossible; it was not allowed. And in answer to the question, “Did you try to unload it yourself?" answered, “No, sir; I didn't try; I never thought of it; I knew it was not allowed”; and says that he never thought of it because it could not be done. At the time of the discharge war prevailed, and precautions were taken by the government to prevent the destruction of the cargo by the enemy or injury from the weather, and it was these