IHj et aU
BROWN
et
v.
YEATS
(Distrl.ct Oourt, S. D. Ne!If York. November 8,1891.) DBJroRRAGB-BROKERS' COMMISSIONS-GROSS AMOUNT 01' CHARTltR.
Where a charter provided for a commission to the ship-brokers of 5 per cent. "on the gross amount of oharter." and. also contained a stipulatio,n. allowing a certain sum daily fol" any detention by default of charterers, held, that commissioDs were due the broken on demurrage collected under the detentionrclause of the charter, as well as on the freight.
In Admiralty. Suit to recover ship-;brokers' commissions. Owen, Gray Sturgis, for libelants. ' Wing, Shcrudy Putnam, (0. O. Burlingham, of counsel,) for respondents. . BRQWN', J. The libelants, as ship-;brokers, effected in behalf of the resporidents a charter of their ship the Alex. Yeats, which contained a clause providing that "a commission of 5 per cent. on gross amount of this ilh,arter" should be due on the signing thereof. ,The charter wliS for from Manilla to New York, and contained a stipulation allowbig 45'}ay days for loading; and fur customary dispatch on discharge; arid (01' any detention by default of charterers, 8106.40 per day. The depiui'rage collected under this clause of the charter at Manilla amounted to $24,046.40, and the collected amounted to $15,308.11. The libelants, agreed to allow two-thirds of their commissions under the charter to the respondents' agents, now claim their one-third of the stipulated commissions on the whole amount of freight and demurrage collected under the charter. The respondents paid intO court the pro:. :portion of the commissions on freight, bat contest their liability for commissions on the amount collected for demurrage. I cannot sustain the defense. The charter expressly provides fnr commissions "on the gross amount of thischllrter." That expression faidy arid naturally imports commissions' upon the gross, amount earned by the ship ,uoder the provisions of the charter. The word "deinurrage" is not used in thucharter. But the provision for the payment of a spec'ifj.ed .sum per day for any detention of the ship, though in the nature ,of is one of the express contract stipulations of the charter, just liS explicit as the provision for the payment of freight at a sped,fied rate. The sum collected for detention is not by way of damages or pelli. alty, but for the possession and use of the ship at a rate specifically agreed on. So far as I can see, there is no reason for discriminating, as respects the right to commissions, between any of the provisions of the charter under which the vessel obtains compensation. 80 Jar as the language of the charter goes, freight or dead freight might be excluded as well 8S demurrage. The mlJin consideration urged against this view is the further provision of the charter that the commissions were due "on the signing hereof;"
IReported bl Edward G. Benedict, Esq., of the New York bar.
116
FEDERAL REPORTER,
vol. 48.
whereas. the claim for demurrage.· it said, could only accrue at a future time, after the detention Of the vessel had occurred. But this argument, ifvalid, would apply to the freight as well; for the gross freight was not fixed, imd could not be determined, at the time1:vhen the charter was signed, inasmuch as it gave an option to the vessel in.regard to a considerable amount of the cargo at different rates of freight, and upon the e:tercise of this option the gross amount of freight depended. The form of charter used in this case is a very common one, under circumstances like the present. The word "due" is plainly here used in the sense ofobligation incurred, ,which was fixed and vested from the time of signing of the charter, although the amount that might beul1(ier different clauses of the charter, whether of freight; dead freight, or demurrage, was not then determinable. The obligation was debitum in prmsenti, 80lvendum in futuro. The reason for '\tae 9f, the word "due" is further explained in the. eVid.enceto. be in ordef: the commissions agreed upon should become an in,surable intere.st,.by being madea.fixed obligation of the ship. a very long custom in this country for the payment of .c9mmissiops .on .demurrage accruing. under lltipulations. of the like the present, But I do notrega,rd, this evidence of custom as essential to the libelants' claim. Itwasin evidence that the practice in England has for sometime been to prQvidee:x:preE\sly for comn,lissions on freight, dead freight, and demurrlJ,ge, and that IlL,t,that practice. has .i>een creeping into ulle. llome of the ship agents in the English. trade. Such an express ,clause woul4. in, pne respecte:x:teD;d further than the present qharter, since it earned in cases where the. charter, did not contain provision as respects demurrage. In that case demurrage might npt coyered by a clause like present, which pl'oyide,sonly for· commissions "on the gross ampunt of this charter." Where the charter contains !in express stipultltion for demurrage at aspecijied rate, it is oueof subjects of the broker,'snegotiations; the earned by the vessel under the stipulation is h,er charter comp/fnaation for the Ulle of -the vessel beyond the time stipulated, and is tile contractexacUy as. much tlS the freight itself. In suqh phrase here used is of the. same import as jf the word" deIDUtTage" were expressly used. Decree for the libelants, with interest and costs.
SORENSIN fl. KEYSER.
117
SORENSIN
et al.
fl. KEYSER!
(District Oourt, S. D.
j\
fBl'ssippi.
September 21, 1891.)
DBlW'mAGE-ExCEPTIONS IN CHARTER-PARTY.
Where a charter-party allows a certain number of days fol' delivery of a cargo, and excludes from computation therein all time lost by reason of flood, drought, storm, and any extl'aordinary occurrence beyond control of the charttlrer, and the charterer fails to deliver his cargo within such time because of storms and a droQght which affects the river, which is the main source of supply at the port of loading, he is !lot liable for demnrrage. Paterson v. Dakin, 81 Fed. Rep. 6132, followed, and Grant v. OCYU/ffdale, L. It: \I App. Cas. 470, distinguished, ,
In Admiralty. Libel inper8onam. ROlM8 &- Grant, for libelants. Ford« Ford and John C. Avery, for respondent. TOULMIN', J. This is a libel in p'erBonam for demurrage. The libelants are the owners ofthe bark Urania, which had been chartetedtd re{leive on· board at Ship island a cargo of timber. By the charter-party the <lharterer undertook to deliver the cargo at port of loading ill 27 working days, which were allowed him for "actual delivery of cargo along-side." The charter-party stipulates' that in the computation of the days for delivering the cargo shall he excluded any reason of drought, floods, storms, or any extraordinary occurreI1<lebeyond the control:ofthe charterer. Notice of the ship's readiness toreceive (largo was given on January 7, 1890, and the lay-days for began on would have expired February 12, 1890; February 11, 1890, and was not completed until March 30, 1890;" The defense is that by reason of drought and storms delivery of cargo was delayed, and that all the time lost washy reason of these extraordinary {)ccurrences, beyond the conttol of dflfendantj and that, excJuding such lost time in the computation ofthe days allowed fordelivering the cargo, 27 working days were not consumed in delivering thecllrgo at the port {)f loading. The evidence in this case is'without conflict. It shows that, according to the custom and usual course of business, vessels chartertld for Ship island obtain timber for their cargoes from the Pascagoula river and its tributaries by way of Moss point. It shows that when timber brought for such cargoes from Mobile and other points it is for some exceptional reason, and is done at extraordinary risk anrl expense. It shows that prior to the chartering of the bark Urania the defendant had purchased and contracted to purchase mnch more timber than ,,:as required to load her and the other vessels he had chartered forShipisland at and about the same time. and that the delay in the delivery to the vessel of the cargo contracted for was by reason of an extraordinary -drought that prevailed throughout the extent of country, affecting the rivers and streams from which the intended cargo was to be obtained; that this dr{)ught prevailed for several months before the arrival of-the I
Reported ,by Peter J. HamiltoD, 'Esq., of the Mobile bar
