Davis v. A Cargo of Chalk
Davis v. A Cargo of Chalk
Opinion of the Court
The libelant claims demurrage for the detention of the ship'Glenfinlas in the discharge of a cargo of 3,000 tons of chalk at this port in July, 1889. The cargo was brought under a charter which provided for “delivery along-side to be taken.at the merchant’s risk and expense;” for “dischargeat two.safe wharves, as ordered bj' the consignee;” “cargo to be shipped as fast as vessel can load, and to be discharged as fast as she can deliver;” and “ten days on demurrage over and above the saiddaying days at fourpence per registered ton per day.” Her register was 2,148 tons. The vessel went first to Findley’s stores at Atlantic docks, where she could only be discharged into lighters. There two days’ delay arose, for which the consignees are liable. The cargo was
The second wharf to which she was ordered, and which was reached on the night of Saturday, the 20th of July, was Taiutor’s dock, Kewtown creek, one of the principal docks in the city for the delivery of cargoes of chalk from smaller vessels. Discharge there was commenced on Monday morning, and finished on Friday, August 2d. During this time a day was lost through rain. During the other working days the discharge averaged about 160 tons a day. Only one hatch could be worked at that dock, and much evidence on the part of the claimant shows that, according to the usual practice in this port, as respects the delivery of ordinary cargoes of chalk, 150 tons per day is as much as is expected to be received or delivered. The claimants contend that this practice constitutes a usage, which is to be read into the terms of the charter, so as to relieve the consignee from any obligation to receive and provide for more than 150 tons per day. The ship, it is said, could not lawfully deliver more than the consignee was bound to receive; and the agreement “to discharge,” it is said, is limited to the amount which the ship had a legal right to deliver under the local usage. I do not thiilk that was the intention of this clause of the charter, or that it can reasonably hear that construction. Its meaning, I think, is to provide expressly for the rate of delivery at such places and during such days an 1 times as she may be properly worked under the usage of the port. It is the office of usage to supply what is not expressed; not to override the language or the meaning of what is written. Usage in this ease would properly determine the working days and hours, because the terms of the charter plainly do not intend to touch that subject. Equally plainly, as it seems to me, it does intend to determine the provision to be made for the ship’s rapid discharge during working hours. It would be an obvious breach of the charter stipulation, as it seems to me, for the consignee to refuse to receive any more cargo after 12 o’clock on the ground of local usage, merely because 150 tons had been received during the forenoon; or to refuse to work two hatches instead of one, for the same reason. This vessel was a much larger one, and the cargo much larger, than were usual
Without attempting, upon the evidence, to determine just how many * tons should be discharged per day, I shall, therefore, allow to the consignee only one-half of the working days after commencing at Taintor’s dock; assuming that, by discharging at a proper dock for such a ship from two hatches instead of one, the remainder of the cargo would have been discharged in half the time. That would have completed the discharge by' Friday night, July 26th. The libelant is therefore entitled to demurrage for the seven days remaining to August 2d, and for the two prior days above referred to, making nine days in all, with interest and costs.
Reference
- Full Case Name
- The Glenfinlas. Davis v. A Cargo of Chalk, Etc.
- Status
- Published