1,68

91 FEDERAL REPORTER;'

evidence of the facts set out in it 1 but isalsd ,subject to contradiction even a bona ,fide holder thereof. Whatever be the grounds Qf:thedoctrine, however, I think,it is established too firmly for this coutt to .question it. ,Decree in accordance, with this opinion.

=

RED ,"R" S. S. CO., Limited, v. NORTH AMERICAN TRANSPORT CO. (Circuit Court of. Appeals, Second Circuit. No. 24.
1.Sarl'l'ING-CONSTRUCTION OF CaARTEn-COMPUTATION OF DISPATCH MONEY.

December 7, 1898.)

Under a charter specifying the number of days allowed for ioading, excluslyeof Sundays and holidays, and providing that dispatch money is to be 'allowed the charterer for "each running day or part of a day saved In loading," dispatch money is to be computed on the d.ifference in time betWeen' the time the loading 'was actually completed and the vessel , tUl'ned'over to the master for the' purpose of the voyage and the time the lay days for loading would have expired \I11.der the charter, ''':IcIu!llng Sllndays or, holidays during sucp.tlijle.
&'MIIl.,-·DETENTION. OF. VllISSll:L DVCB::+J\TERER.

2.

,UhlIer II charter that, if the vessel should dispatched" in less time than was specltied for loading, the charterers should be allowed displttch money for' each working:dlty so saved, the charterers are not eI;lt!tled to dispatch money, for tiI)leelllpsjngaftel' the vessel was actually loade.4. but during whi,ch She was (}etained by their Withholding her clear·papers without NsUtiable cause' .

.'

Appeal from the District Court of the United States for the Southern District of New Yark. This was a libel by the Red "R" Steamship Oompany, Limited, againstthe North American Transport Oompany, to recover money claimoo1under a charter party. From the decision of the district court (84 Fed. 467), the respondent appeals. Wilhelmus Mynderse, for appellant. J. for appellee. LAOOMBE, and SIDPMAN, Oircuit Judges. SIDPMAN, CircuitJ"udge. This is an appeal by the respondent from the decree of the district court foJ:' the Southern district of New York. The important facts in the case were not in dispute.: Those in regard to .the item which the libelant sought to recover are stated in Judge Brown's opinion (84 Fed. 467) as follows:
"The was tiled to reaover certain small balances alleged to be due to the libelant for the hire of the steamship William Storrs under two different charter parties, dated, the one July 26, 1893, and the other October 10, 1893. The items claimed consist of certain credits for dispatch moneys Which, in settlementwlth the charterers, the master allowed to them as credits against the charter hire, for time saved In loading and in dispatching the vessel, less than the lay days specified in the charter. The charter of July provided that 'the lay. days shall not commence until 7 a. m., on the morning after the steamer is' ready to receive the cargo at the place of loading, notice being given before 12 o'clock on the day the steamer is ready. 15 running days, Sundays and holidays excepted, are allowed for loading. · · · Dispatch

RED "R" S. S. CO. V. NORTH AMERICAN l'RAKSPORT CO.

169

money at the rate of £10 per day of twenty-four hours Is to be allowed the charterers for each running day or part of day saved in loading. The vessel Is to load at night If required by the charterers, they paying all extra expense thereby incurred, excepting overtime of officers and crew; steamer to furnish use of her tackle, steam hoisting engines, and engine drivers in landing [loading?] cargo.' The vessel was ready to load and gave the requisite notice on August 22d, so that the lay days, according to the terms of the charter, began at 7 a. m. of Wednesday, August 23d. Fifteen running days from that time, Sundays ,.nd holidays excluded, expired at 7 a. m. on :\!ouday, September 11th, to whic'..l time the charterers would have been entitled to hold the ship for the purpose of loading, without any liability for the payment of demurrage. In this computation, three Sundays are excluded, and also Labor Day, on September 4th, which, under the statutes and customary practice at Norfolk, Va., where the ship was loaded, I find should be treated as a holiday within the provisions of the charter. By arrangement with the master, however, the charterers commenced loading on Tuesday, August 22d, at about 2 p. m., the day before the lay days regularly commenced under the charter, but with the understanding that the earlier commencement to load should not affect the duration of the lay days. N"othing was said regarding the effeet of the earlier commencement of loading upon the right to dispatch moneys. The loading was completed at half past 4 p. m. on Saturday, September 2d, and the vessel sailed the next morning. In the settlement for the charter hire, the master allowed the charterers' 'claim to a credit of 8 days and 14 hours dispatch moneys. making no account of the time used in lOading on August 22d.'''

The libelant's principal theory in regard to the alleged overcharge upon the July charter was that, as loading commenced on the 22d, the lay days commenced also on that day, and therefore expired on September 9th instead of September 11th, and tbat, 11 days baving been occupied in loading, 4 only of 15 lay days were saved. The district judge properly held that tbe lay days were not to commence in violation both of tbe terms of the charter and of the oral agreement with the master, and that dispatch moneys were also to be allowed in accordance with the terms of the charter. Tbe question in controversy was therefore in regard to the meaning of the term, "running days saved in loading." The district judge thought that the whole time occupied in loading, from 2 p. m., August 22d, to 4 :30 p. m., September 2d, being 11 days, 21 hours, was the time used in loading; and that the only time saved in loading was the difference between the amount of time used and the 18 running lay days, being 6 days, 21! hours. He tberefore held that the libelant was entitled to a return of dispatch moneys for 1 day, 161 hours. We are of opinion that tbe "time saved in loading" means tbe amount of time saved to the vessel from the time allowed for loading by the cbarter, and that, as loading was completed on September 2d, at 4.30 p. m., the dispatch days tben commenced, and ran to September 11th, at 7 o'clock a. m., being 8 days and 14 hours, in accordance with the dispatch statement. The cbarter specifies bow many days are allowed for loading, and tben provides tbat dispatch money is to be allowed to tbe charterers for each day and part of a day saved in loading. This means that, if the charterers can turn the vessel over to tbe master for tbe purpose of tbe voyage before the time permitted to them for loading, there shall be an allowance for each day and part of a day tbus saved to the owners. Tbis computation allows dispatch money for the Sundays and holidays between tbe completion of loading and the

170

91 FEDERAL REPORTER.

expiration of the lay days, and is in accordance with a proper construction of the charter. The term, "running days saved in loading," not "running days, Sundays and holidays excepted," nor "working days," meant the amount of consecutive days which should be saved to the ship and its owners before the end of the time which the charterers were permitted to occupy in loading. This construction was apparently approved by both counsel and court in Laing v. Hollway, 3 Q. B. Div. 437, but the decision turned upon the duration of a day, whether 12 or 24 hours. The Glendevon [1893] Prob. Div. 269, is not an authority of value to the libelant, because the question turned upon the peculiar phraseology of the dispatch clause. The provisions in the October charter in regard to dispatch moneys differed from those of the preceding charter, while in regard to the commencement of lay days and the giving notice they were the same. 'l'he dispatch money clause was as follows:
"If the steamer be not sooner dispatched, 18 running days, Sundays and legal holidays excepted, shall be allowed to the charterers for loading. 01< 01< 01< And, if steamer be dispatched In less time than Is specified, then the charterers are to be allowed £15 British sterling dispatch money for each and every . working day so saved."

Judge Brown finds as follows in regard to the time spent in loading:
"The vessel loaded at Newport News. The ship was in readiness and gave notice on October 18th, so that the lay days of the charter commenced Thursday, October 19th. At the charterer's request, the master gave permission to begin loading on the 18th, and signed this memorandum: "'Agree .commence loading to-day, 18th instant, time to commence to begin 7 a. m. to-morrow, 19th. J. Daniels.' " '[Signed] "The vessel accordingly commenced loading at 2 o'clock on October 18th, and finished loading at 7 p. m. on Thursday, October 26th. She therefore occupied in loading (deducting one Sunday) 7 days and 5 hours of actual workIng days, while the charter time allowed was 18 working days."

The lay days expired at 7 a. m. on November 9th, "and the right to dispatch moneys depends upon the charterer's dispatch of the ship prior to that time." On the evening of the 26th, and after the loading was completed, the charterers presented to the master bills of lading for his signature. Those in regard to tobacco contained the clause, "Tobacco to be delivered at Queen's Warehouse, at ship's expense." The charter contained the clause, "Tobacco, if any, to be delivered according to the custom of the port of discharge." The master objected to the clause which was presented, because he did not know the custom of the port of Liverpool, but was willing to sign biUs of lading in the language mentioned in the charter. The charterers refused to accept this form, and refused to deliver the necessary clearance papers, so that the vessel was detained until the evening of October 28th, when bills of lading in accordance with the captain's proposal were accepted, and the ship sailed on the morning of the 29th. The dispatch settlement allowed 11 days, being from the morning of October 27th till the close of working hours on November 8th. The vessel was actually dispatched on the 29th. The libelants claim a repayment for two days, which was allowed by the district judge, because "the provisions of the charter party were explicit as to the bills of lading and were sufficient;

THE JULIA.

171

and the respondents had no l,'ight to insert additior.al specifications, which were not in the charter, and which the master did not have immediate means of determining. The detention of the vessel during this dispute was not, therefore, justifiable on the part of the respondents; and, so long as they withheld the ship's clearance papers without justifiable cause, manifestly the ship was not dispatched." The ship was ready to be dispatched on the 27th, and would have been, but for the unreasonable conduct the respondents, which compelled the delay, and, having refused to dispatch the ship, they yet insisted upon dispatch money from the time she ought-to have been dispatched. In reganl to this part of the case we concur with the district judge. Let the decree of the district court be modified, without costs of this court, so that the dispatch money. shall be restored under the second charter only.
THE JULIA. (District Court, N. D. York. December 29, 1898.)
1. TUG AND TOW-COLLISION OF Tow WITH BRIDGE-NEGLIGENCE OF TUG.

A small tug engaged to tow loaded canal boats, six miles down the JiIudson, in the daytime, made up a fleet of six, arranged two abreast and lashed together, making the fleet 54 feet wide and ZOO feet long. Some of the boats were loaded with lumber standing 11 feet above the water. The river was high and the wind strong. In passing between the piers of a bridge, 200 feet apart, one of the boats collided with a pier and was sunk. A fleet of the same number, similarly made up, preceding the one in question, passed the bridge in safety. Held, that the collision was not due to inevitable accident, but to the negligence of the tug either in making up the fleet as It was or in its naVigation. In a suit against a tug by the owner of the cargo of a tow for its injury resulting from the collision of the tow with the pier of a bridge, where the tug was at fault, It is no defense that the tow was also negligent.

2. SAME-SUIT FOR INJURY TO CARGO OF Tow.

On Final Hearing.

On the afternoon of November 27, 1897, the steam tug Julia was employed to tow the canal boat Helen A. Allen from Watervliet to a point below the upper bridge at Albany. The canal boat was loaded with 8,700 bushels of corn. The tow consisted of six canal boats, three in each tier. The Allen was the last boat on the port side of the tow. On the starboard side were two boats loaded with lumber, the load extending above the water about 11 feet. The other boats extended about 4 feet above the water. The wind was from the northwest. The water in the river was high and the current was swifter than usual. The boats of the tow were lashed together, the entire tow being about 200 feet in length by 54 feet in width. The Julia was towing with a 75-foot hawser. When a short distance above the upper bridge at Albany the wind v.eered and blew briskly from the southwest. The piers of the bridge are about 200 feet apart. In the endeavor to pull the tow through this space the tug so maneuvered that the port bow of the Allen, which occupied the extreme northeast corner of the tow, struck the stone abutment of the bridge. The Allen sank and her cargo was damaged. A tug and tow similarly made up preceded the Julia down the river ·and had no difficulty in passing safely through the piers. The collision occurred about 20 minutes past 3. The libelant. the Reliance Marine Insurance Company, paid the loss and became subrogated to the rights of the owner of the cargo. The libel alleges "that the tug was among other things in fault in that, haVing ample room and depth of water, she towed said canal boat in such a manner and on