Opinion
August 11, 1931.
Kirlin, Campbell, Hickox, Keating McGrann, Chas. R. Hickox, and C.C. Rinehart, all of New York City, for libelant.
Single Single and Horace T. Atkins, all of New York City, for respondent.
In Admiralty. Libel by N.G. Livanos, managing owner of Livanos Brothers, owners of the steamship Eugenia, against the Bisbee Linseed Company.
Decree confirming the special master's report in favor of the libelant.
To the Honorable the Judges of the United States District Court for the Southern District of New York:
I, Wharton Poor, Special Commissioner, do hereby report as follows:
On December 9, 1930, an order was entered herein referring this case to me, as special commissioner, to hear the evidence adduced by the respective parties, and to report my conclusions upon the facts and law involved with all convenient speed. It was further ordered that I should file my report on or before April 1, 1931, "unless the time be extended by consent of the parties or by order of the Court." In view of the fact that counsel were unable to complete the trial of the cause until May 21st, the time to file my report was extended by stipulation to and including June 1, 1931.
Hearings were held before me on December 26, 1930, on April 24, 1931, on April 25, 1931, and (for summing up) on May 21, 1931. At the hearing held on December 26, 1930, no witnesses testified, but documents and accounts were offered and received in evidence; the libelant resting at the conclusion of that hearing. At the hearings of April 24th and 25th, six witnesses, called by respondent, testified.
The suit was brought by the owners of the Steamship Eugenia against the Bisbee Linseed Company under a charter party and agreement supplemental thereto. While the libel demands a decree in the amount of $7,158.35, it is admitted that since the filing of the libel some payments have been made, and the amount demanded by the libelant is now considerably reduced.
On January 9, 1930, the steamship Eugenia, a Greek steamer, was chartered to Bunge y Born, Ltda. S.A. Commercial Financiera E. Industrial of Buenos Aires, to carry a full and complete cargo of grain from a port in Uruguay to Philadelphia. The charter was on the "Centrocon" form. By clause 25, the time for discharge at destination was to be in accordance with the custom at the port of discharge, demurrage to be paid at the rates stipulated in clause 13, i.e., 3d. sterling per gross registered ton per running day for steamers of over 4,000 tons dead weight cargo capacity. On the voyage in question, the cargo of the Eugenia was 5779.6031 tons. This cargo consisted of linseed in bags.
After the Eugenia had loaded her cargo and while on the voyage to Philadelphia, the respondent, to whom the cargo had been sold, decided that it preferred to have the cargo discharged at New York instead of Philadelphia. In order to obtain the diversion of the steamer, the respondent, through Bunge Co. in London, took the matter up with the owners. This resulted in the owners, under date of February 22, 1930, writing Bunge Co. that they would consent to the steamer's proceeding to New York instead of to Philadelphia under certain terms. The terms material for the purpose of this litigation are as follows:
"The Terms under which this option is granted are as follows:
"Stevedoring including tallying to be at the rate of 60 cents U.S.A. currency per ton of 2240 lbs. which rate is inclusive of all extras for steamer's work, winchmen and/or craneage, insurance of labourers, hire of all gear, mending and repairing broken bags and collecting loose linseed, trucking and piling, steamer only supplying her steam and winches.
"The Charterers must also undertake to pay any wharfage dues whatever, levied on the vessel and must provide the vessel with a ready berth on arrival, and undertake to discharge the ship at the rate of 1000 tons per running day, or Demurrage at Charter rate to accrue. The time for discharge to commence immediately steamer obtains free pratique, any custom of the port to the contrary notwithstanding."
The letter also contained the following provision: "All other terms, conditions and exceptions of Charter remaining unaltered."
The Eugenia arrived at New York and was given pratique by the quarantine service at 4:45 p.m. on March 1, 1930. This was a Saturday. The steamer reached her berth at the foot of Columbia street, Brooklyn, later that afternoon. Discharging did not commence until Monday; discharge was completed on March 12, 1930, at 6 p.m. Discharge was overside into canal boats.
The claims of the owner are for demurrage in the amount of $1,180.85, and, also, certain items concerned with the discharge, payment of freight, etc. Some of these items represent deductions made by the respondent (the assignee of the bill of lading, owner of the cargo, etc.), when paying the freight. A statement of these items is as follows:
1. Erroneous deductions from freight: a. Extra labor for cleaning and sweeping seed out of bilges, ribs and sides of ships ................................................... $74.43 b. Extra labor for cleaning linseed out of bridge deck ................ 74.40 c. Detention of stevedores while replacing new block and fall ......... 13.33 d. Supplying rope for slings .......................................... 30.00 $192.16 ______ 2. Expenses paid by owners for which respondent was liable by the addendum: a. Excess of port charges at New York over Philadelphia, £ 20, ......... $97.20 b. Cost of supervisor employed in lieu of tally clerks ................ 94.13 c. Overtime of customs officers ....................................... 12.09 $203.42 ______ d. Ship's rope ........................................................ 139.65 3. Interest at 6% on £ 1067/1/11 balance of freight agreed to be paid in London during discharge and not paid until 28th October, 1930, — i.e. from completion of discharge 12th March, 1930, to 28th October, 230 days at 3 s/6 per day. This amounts to £ 40/5 ....... $195.62 ________ Total of items .............................................. $730.85 Respondent has expressly admitted the correctness in amount of these items and has not contested, but that they are properly payable to the libelant. I hold that libelant is entitled to them.This leaves for consideration the item of demurrage, $1,180.85.
It is not disputed but that respondent made the agreement contained in the letter written in London dated February 22d, already referred to. The formal acceptance of the above terms is contained in later correspondence received in evidence. It is sought, however, by respondent to construe its agreement with libelant as one by which it did not agree to discharge the cargo at the rate of 1,000 tons per day, but as an agreement by which it agreed to "receive cargo from alongside at the rate of 1000 tons per day" (answer, article fifth).
In its affirmative defense (article thirteenth of answer), respondent sets up: "Respondent further agreed to receive cargo from alongside of vessel at New York at the rate of 1000 tons per running day, time for discharging to commence immediately steamer obtains free pratique."
The facts as proved by the testimony of the witnesses were that the steamer arrived at her berth on Saturday too late to commence the discharge, and that no work was done on Sunday. At 9 a.m. on Monday canal boats to receive the cargo arrived alongside and commenced to rig up. The actual discharge commenced at 1 p.m. From Monday on discharge proceeded continuously during usual working hours (except when discharge was interrupted by rain). I find that there was no culpable delay on the part of the ship, the stevedores, or the men receiving the cargo in barges. The stevedoring concern, a firm of independent contractors, was hired by the respondent. It is said that in hiring this firm the respondent acted as agent for the libelant. I find it unnecessary to determine that question.
It impressed me strongly that Mr. Veitch, who was supervisor for the respondent and who was on the Eugenia throughout the discharge representing the respondent, made no claim of fault on the part of the ship.
On two separate days the ship discharged in excess of 1,000 tons per day. There is testimony that the customary rate for linseed is only 500 tons per day. This would certainly indicate that the discharge was carried out without unnecessary loss of time.
The fundamental question in the case, as I see it, is that raised in the respondent's answer and vigorously urged (to the exclusion of practically every other argument) at the final hearing; namely, that the undertaking of the respondent was not to discharge the ship at the rate of 1,000 tons per running day, but to receive the cargo alongside at that rate. It is not disputed, as previously pointed out, that the respondent did agree that the time for discharge was to commence "immediately steamer obtains free pratique" and, further, that respondent did, in terms, "undertake to discharge the ship at the rate of 1,000 tons per running day, or demurrage at charter rate to accrue." Partly by reliance on other clauses of the charter, respondent seeks to sustain its position that its only obligation was to be ready to receive cargo alongside at the rate of 1,000 tons per running day. In particular, the charterer relies on clause No. 17, reading: "The cargo to be brought to and taken from alongside at charterer's risk and expense."
On the other hand, the position of the owner is that the word "discharge," used in the letter of February 22, ought to be given the ordinary dictionary meaning of "unload"; that the time to discharge commenced immediately on the ship's receiving free pratique; and that as discharge was to be at the rate of 1,000 tons per running day the lay days ran continuously from that point of time, irrespective of Sundays or holidays, and bad or good weather. The phrase "running days" has, of course, a well-settled meaning in maritime law. As stated by Lord Esher, Nielsen v. Wait, 16 Q.B.D. 67, at page 72: "`Running days' therefore mean the whole of every day when a ship is running. What is that? That is every day, day and night. There it is as plain as possible. They are the days, during which, if the ship were at sea, she would be running."
The word "discharge" standing alone has also been frequently interpreted by our courts. It has frequently been held by the Supreme Court that to discharge means to unload, not including delivery to the consignee.
In The Kimball, 3 Wall. 37, page 43, 18 L. Ed. 50, the Supreme Court said, discussing the use of the word "discharge" in a charter party: "The discharge mentioned does not import a delivery of the cargo; it only imports its unlading from the ship. Such is the obvious meaning of the term, and so it has been judicially held."
In The Bird of Paradise, 5 Wall. 545, page 557, 18 L. Ed. 662, the Supreme Court cited the decision of Mr. Justice Story in Certain Logs of Mahogany, 2 Sumn. 600, Fed. Cas. No. 2559, and stated that he held, "* * * that the word discharge, as there used, meant merely the unlading of the cargo from the ship, without any reference to a delivery to the owner or consignee. Exactly the same rule was adopted and applied by this court in the construction of a similar clause of a charter-party in a case heard and decided at the last term."
See, also, the opinion of Mr. Lord, as arbitrator, in the case of The Olson, 1929 A.M.C. 19, at p. 24.
I am therefore of the opinion (and it is quite obvious) that, prima facie at least, the admitted obligation of the respondent "to discharge the ship at the rate of 1000 tons per running day" meant that the respondent did actually agree that the cargo was to be taken out of the ship at this rate, or that respondent would pay demurrage, in the event of nonperformance. Respondent would, of course, be wholly or partially excused from this obligation in the event of certain kinds of impossibility, or fault attributable to the libelant. Neither of these conditions, however, existed.
Respondent relies on clause 17 of the charter, quoted above in full, requiring that the cargo be "taken from alongside at charterer's risk and expense." It is obvious to me, and has, I believe, been held in several decisions, that the charterer may agree to load or discharge within a fixed time, although the risk and expense of at least part of the operation remains on the owner. For instance, if, in the present case, a sling load of linseed had been dropped overboard from the tackle, it might well be that the loss would be that of the ship; and the shipowner may pay the stevedore's bill. This, however, does not prevent the undertaking as to the time of discharge being that of the charterer.
One demurrage case is rarely a direct precedent for another. The language used in various forms of charter parties differs considerably; in this very case the standard form was departed from by the making of a special agreement. There are, however, many decisions which hold that, under language less explicit than in the case at bar, the undertaking as to the time of discharge is that of the charterer.
In Straker v. Kidd, 3 Q.B.D. 223, a steamer had been chartered to carry a cargo of wheat from Danzig to London. Eight bills of lading had been issued for various portions. Each bill of lading contained the following clause: "Three working days to discharge the whole cargo or thirty pounds sterling per day demurrage."
The defendants were the assignees of one bill of lading covering a portion of the wheat which had been stowed at the bottom of the hold. The defendants were ready and willing to take delivery of their wheat, but were unable to do so because of delay in getting out the cargo stowed above it. The vessel was not discharged within the three days, and the shipowners claimed demurrage.
The defendants argued that the default, if any, was that of the master, for the reason that he was unable, and therefore not ready, to deliver their wheat.
In holding that the owners were entitled to demurrage, the court said (page 226 of 3 Q.B.D.): "Now, the only thing which prevented the delivery in the present case was the inability of the master to get at the goods, because they were stored at the bottom of the hold, and because the owners of the superincumbent goods had neglected to take those goods away in proper time. Can this neglect of the other consignees be said to be the default of the master? If not, it is immaterial whose fault it was; for the defendants undertook that, whether they were able to get away their goods or not, they would pay demurrage if the ship was not cleared within the stipulated period, the contract being, as I have said, an absolute and not a conditional contract."
In Thiis v. Byers, 1 Q.B.D. 244, a ship had been chartered to carry timber from Pensacola to Middlesborough. Fourteen working days were allowed for the discharge. It was the duty of the master to put the timber over the side and form it into rafts, and the duty of the charterer to take it away. During the time of the discharge bad weather came on, so that the master was unable to put the timber over the side and form it into rafts. This continued for a period of four days. It was held that, although the master was unable to put the cargo over the side, these days, nevertheless, counted as lay days under the charter party.
The court (Blackburn and Lush, JJ.) said (page 249 of 1 Q.B.D.):
"It was the duty of the master to put the timber over the ship, and form it into rafts; and the charterer was to take the rafts away.
"In the course of unloading bad weather came on and though the ship did not leave her anchorage the rafts could not be formed, and the charterer could not consequently do his part in taking the timber away. The bad weather caused a delay of four days in discharging the ship; and the contention of the defendant was that as he was not in default, but was ready to receive the timber, but the master was not ready to deliver it, the time lost in consequence of the bad weather ought not to be reckoned as part of the fourteen days.
"We took time to look into the authorities, and are of opinion, that where a given number of days is allowed to the charterer for unloading, a contract is implied on his part that, from the time when the ship is at the usual place of discharge, he will take the risk of any ordinary vicissitudes which may occur to prevent his releasing the ship at the expiration of the lay days."
In Budgett v. Binnington, [1891] 1 Q.B. 35, the charter party provided that the cargo was to be taken from alongside the steamer at freighter's risk and expense, and a fixed number of lay days for discharge was allowed. On arrival at the port of discharge was a strike which affected both the men who would, in ordinary course, be hired by the ship, and those to be hired by the consignee. The court held that demurrage was payable, since there was no exception of strikes. Lord Esher put the pith of his decision as follows: "It has been held that the demurrage contract, where a fixed number of lay days is mentioned, is a contract by the freighter, that if the ship is detained over those days he will pay demurrage for so long as the ship is in such a condition that she cannot be handed back for the use of the shipper." Pages 37, 38 of [1891] 1 Q.B.
Lord Justice Lopes said: "The contract is an absolute and independent contract, and not a conditional one. It is a contract creating an absolute obligation in the merchant to have the goods unloaded within a specified time, whatever the circumstances may be, unless the shipowner, or those for whom he is responsible, are in fault." Page 41 of [1891] 1 Q.B.
The principle of these earlier decisions was recently approved by the House of Lords in Alexander Sons v. A/S D/S Hansa, L.R. [1920] A.C. 88, to which, for the sake of brevity, I shall make no further reference.
I realize, of course, that the decisions just referred to are English and not binding here. I am impressed, however, with the statement of Mr. Justice Holmes in The Eliza Lines, 199 U.S. 119, 26 S. Ct. 8, 10, 50 L. Ed. 115, 4 Ann. Cas. 406, a charter party case, where he said: "Of course, it is desirable, if there is no injustice, that the maritime law of this country and of England should agree."
I am further of the opinion that my construction of this charter party and subsequent agreement is in accord with controlling decisions in this country.
In United States v. Czarnikow-Rionda Co., 40 F.2d 214 (C.C.A. 2d Cir.), decided April 7, 1930, the latest decision on the subject of the Circuit Court of Appeals for this circuit, a steamer was to be loaded with sugar at the rate of 6,000 bags per working day. During the lay time a strike prevented loading for about two days. The Circuit Court of Appeals held that, although the shipowner was not able to load during this period, nevertheless the lay days continued to run. Among the authorities cited was Carver on Carriage of Goods by Sea (7th Ed.) p. 831, where it is said, quoting the language of Lord Justice Brett: "His (the charterer's) contract is `that, if the ship is not able to discharge the whole of the cargo within the given number of days after she is at the usual place of discharge,' he will pay for the delay, `however the delay may be caused, unless it is by default of the shipowner.'"
In Bailey v. Manufacturers' Lumber Co. (D.C.) 224 F. 806, page 808, cited with approval in United States v. Czarnikow-Rionda Co., supra, Judge Learned Hand, sitting in the District Court, said, as to the obligation to discharge within a fixed time: "Such undertakings are made by the charterer. Carver, Carr. by Sea, 610; Leary v. Talbot [(C.C.A.) 160 F. 914], supra. It makes no difference that the employment and pay of stevedores is an obligation of the master; the charterer must see to it that the agreed rate of loading or discharge is continued, unless the master interfere."
In Leary v. Talbot, 160 F. 914, page 915, the Circuit Court of Appeals for this circuit quoted Carver on Carriage by Sea, § 608, as follows: "It is, therefore, usual in charter parties, and sometimes in bills of lading, to fix times within which the ship is to be loaded and discharged; and, where that is done, the provision is understood as an undertaking by the freighter that the ship shall be loaded or discharged within the time so fixed."
Other decisions which, in my view, support the proposition that the undertaking as to the time of the discharge or unloading in this case was that of the respondent, are Grace Co. v. Hansen, 273 F. 486 (C.C.A. 9th Cir.); The Hans Maersk, 266 F. 806 (C.C.A. 2d Cir.) citing Budgett v. Binnington, supra, with approval; Baldwin v. Timber Co., 142 N.Y. 279, 36 N.E. 1060; The Assyria, 98 F. 316 (C.C.A. 5th Cir.).
The respondent has cited three decisions on this branch of the case.
Standard Fuel Supply Co. v. Gray, 183 F. 513, was a decision in the Fifth circuit (C.C.A.). The suit was for demurrage in unloading the schooner Kelly. By the charter party, the charterer was to pay demurrage for each day's "detention by default" of the charterer. The court construed this clause as throwing the burden of proving the charterer's fault on the shipowner. There was delay because the master failed to secure a stevedore promptly, and also, apparently, because the stevedore, when secured, was dilatory in unloading. The language of the charter party was very different from that of the contract in the case at bar, and the facts were also different; it is not, in my view, by any means controlling here. The statement in the opinion, that the burden was on the shipowner of proving "fault or neglect" on the part of the charterer, is contrary to well-settled rules frequently laid down with respect to charter parties in the form now under consideration. The Hans Maersk, supra.
Harrington v. American Tie Lumber Co. (C.C.A.) 185 F. 475, was a decision of the Circuit Court of Appeals for this circuit. That was a suit for demurrage in the loading of railroad ties. The charter party provided that for each day's "detention by default" of the charterer $100 demurrage should be paid. There was a further provision that "charterer's stevedore" was to be employed. I do not find in the report of the decision any statement that the loading was to be done in a fixed time. The charterer named a stevedore named Mason; when the ship arrived at the loading port Mason was unable to load because of a strike. The court held that, because the strike made it impossible for Mason to load, this was not a "default" on the part of the charterer.
In view of the very different circumstances and charter provisions, I am unable to see that this decision is in point. I do not find any conflict between this decision and the more recent ones in this circuit to which I have referred, and, if there were any, the later decisions would, of course, control.
Washington Marine Co. v. Rainier Mill Lumber Co., 198 F. 142, was a decision of the district court sitting in Oregon. The charter there provided that the lumber was to be "taken from vessel" in five working days. Construing this clause in connection with the custom of the trade and the acts of the parties in performing the charter, the district court held that the vessel was to unload the cargo and the charterers were to receive it within reach of the tackle. A number of other questions were involved in the case, and I am not clear as to whether this is a direct holding that, as respects the time of the discharge, the charterer was under no obligation except to receive the cargo alongside. In any event, the terms of the charter party were widely different from those contained in the agreement now before me; the language in the present agreement is, to my mind, clear and unambiguous.
After the argument, respondent's counsel submitted a further memorandum referring to other decisions, to some of which I will make reference.
(a) United States v. Sugarland Industries (D.C.) 281 F. 239. In that case, the contract contained a specific clause that the rate of discharge should be in accordance with the capacity of the ship to discharge. It is obviously not in point here.
(b) West Hartlepool Steam Navigation Co. v. Virginia-Carolina Chemical Co., 164 F. 836 (C.C.A., 4th Cir.), was adversely criticized by Judge Learned Hand in Bailey v. Manufacturers' Lumber Co., supra ([D.C.] 224 F. at page 808). The contract terms also differed from those employed in the case at bar.
(c) In Earn Line S.S. Co. v. Manati Sugar Co. (C.C.A.) 269 F. 774, the court discussed delay on the voyage rather than in loading and discharging. It was said that in the absence of a contract to the contrary the risk of delay was on the shipowner. In the case at bar, there was a contract imposing liability for delay in discharging upon respondent.
(d) Brooks v. Hilton-Dodge Lumber Co., 229 F. 708, 709, also a decision of the Circuit Court of Appeals for this circuit, is referred to in The Hans Maersk, supra, the court saying (266 F. 809): "We held the shipowner liable for the defaults of stevedores employed by him in Brooks v. Lumber Co., 229 F. 708, 144 C.C.A. 118."
In the present case, I do not find any default on the part of the stevedores.
In The Hans Maersk, supra, the Circuit Court of Appeals also said: "A charterer or consignee * * * is bound by his agreement that a vessel shall be loaded or discharged within a given time, notwithstanding that the shipowner does the loading and discharging."
That part of the opinion in The Hans Maersk Case just quoted is applicable here.
The respondent's agreement was that it would "discharge the ship at the rate of 1000 tons per running day, or demurrage at charter rate to accrue"; by this agreement respondent undertook that the steamer should be discharged in five and a fraction days from the time that the steamer received free pratique. The owners were to pay not to exceed 60 cents per ton for stevedoring in the discharge, which was to include all extras; the steamer supplying only her steam and winches. The steamer might have been discharged within the lay days if overtime had been worked. Under the agreement, the extra expense would have been for respondent's account. As the respondent did not discharge the steamer within the lay days, the alternative provision of the agreement comes into effect, and respondent is liable to pay demurrage.
Respondent's counsel, in the memorandum submitted, has referred briefly to certain alleged faults on the part of the ship. The burden of proving fault lies upon the respondent; the libelant makes a prima facie case by showing that the lay days had run out. The Hans Maersk, supra; Budgett v. Binnington, supra; Hagar v. Elmslie, 107 F. 511 (C.C.A. 3d Cir.). The faults claimed to exist are:
(1) That there was only one winch at No. 1 hatch and at No. 5 hatch. The steamer had loaded her cargo long before the agreement to discharge at the rate of 1,000 tons per running day was made. The evidence does not show that any complaint was made by the company which chartered her originally; presumably, they knew, in a general way, before they chartered her how she was equipped. Steamers, of course, differ in their equipment. The respondent was able to discharge more than 1,000 tons in an ordinary working day on two separate occasions. I do not consider that the arrangement of the winches was in the nature of a trap, and I find that there was no fault on the part of the libelant with respect to these winches.
(2) It is further asserted that the steamer was at fault because unable to discharge from No. 3 hatch. No. 3 hatch, as I understand the testimony, was amidships and led into a bunker space. A small amount of the linseed was stowed in 'tween-deck space, which was reachable either through hatches Nos. 2 and 4, or through the bunker hatch No. 3. For some reason, the stevedores discharged this small quantity through hatches Nos. 2 and 4. I do not believe that any substantial time was lost thereby. When steamers load full cargoes of grain, etc., cargo is often placed in poops and other spaces which may be more difficult to get at than ordinary cargo holds. The linseed must obviously have been stowed in this space with the concurrence of the charterers. See stowage plan, attached Exhibit A.
(3) It is claimed that some time was lost rigging up slings on the Eugenia. On Monday morning, March 3, four men on one canal boat began to rig up their boat at 9 a.m., and the boat was ready at noon. Discharge commenced at 1 p.m. As already stated, the steamer had arrived at her berth late Saturday afternoon. The stevedores seem to have employed Monday morning in rigging slings; the testimony is very vague. It will be noted that steamer's lay days were to commence at quarantine, when free pratique was granted. This meant that the lay days would commence before the ship was in all respects ready to discharge; the lay days ran continuously unless fault is shown, which has not been done. The testimony, in my opinion, does not show either (1) that a canal boat was ready to receive before the stevedores were ready to discharge, or (2) that, even if this were the case, any appreciable delay resulted. It will be noted, furthermore, that under the agreement of February 22, 1930, made in London, referred to supra, the steamer was to supply only her steam and winches. The evidence shows, moreover, that there were certain delays in receiving the cargo on the canal boats which compensate for any possible delay which might be attributable to the libelant.
The only questions remaining to be dealt with are the figures.
The computation works out as follows:
Lay Time Allowed: 5779.6031 tons at 1000 tons per running day — 5 days, 18 hours, 43 minutes. Time Used: Day Hour Min. Discharge finished March 12 18 (6 P.M.) Lay time began on receiving free pratique March 1 16 (4.45 P.M.) 45 ____________________________________ Total time used 11 days 1 hr. 15 min. Deduct lay time allowed 5 18 43 ____________________________________ 5 days 6 hrs. 32 min. Demurrage Time: or 5.272 days Demurrage Rate: By Clauses 1, 13 and 25, the rate of demurrage was 3d. per ton on 3687 tons gross register per day. This is equivalent to £ 46/1/9 or £ 46.0875.Demurrage:
5.272 days at £ 46.0875 per day amounts to £ 242.9733 or £ 242/19/6. The sum of £ 242/19/6 at $4.86 amounts to $1180.85.
I therefore find in favor of the libelant against the respondent, to-wit; that the libelant is entitled to recover the following sum: $1,911.70.
Libelant is also, of course, entitled to interest from the date when these sums became due until the date of final decree. Libelant is entitled to interest on the demurrage, deductions from freight, and expenses paid by owners from March 12th, the day when the discharge was completed. Interest on the unpaid balance of freight, amounting to $195.62, should run from October 28, 1930.
The costs should, of course, be assessed against the respondent.
While I do not believe that specific findings of fact and conclusions of law are required, I will make them as follows:
1. The libelant is manager of Livanos Bros., owners of the steamship Eugenia. Respondent is a corporation doing business in Philadelphia.
2. On January 9, 1930, at London, a charter party was entered into between the libelant and Bunge y Born Ltda. S.A. Commercial Financiera E. Industrial, a copy of which is annexed to the libel, marked Exhibit A. Said charter party is made a part of this finding by reference.
3. While the steamer Eugenia was on her voyage to Philadelphia, having loaded a cargo of linseed pursuant to said charter party, an agreement was reached between the libelant and the respondent, which was the purchaser of the cargo and the assignee of the bill of lading, that the steamer should be diverted from Philadelphia to New York, in consideration of which the respondent agreed to discharge the ship at the rate of 1,000 tons per running day or pay demurrage at the charter rate. Said agreement is more fully set out in the letters contained in Libelant's Exhibit 3, which is hereby made a part hereof. The bill of lading, of which respondent was the holder, which is marked Libelant's Exhibit 2, is also made a part of this finding by reference.
4. The Eugenia was diverted to New York in accordance with said agreement, and received free pratique at 4:45 p.m. on March 1, 1930. Her discharge was completed at 6 p.m. on March 12, 1930. She had on board 5779.6031 tons of linseed, and under the supplementary agreement made in London, above referred to, the respondent was entitled to 5 days, 18 hours, and 43 minutes as lay days.
5. The libelant duly performed all conditions on his part to be performed.
6. The Eugenia was on demurrage for 5 days, 6 hours, and 32 minutes. The rate of demurrage was 3d per ton on 3,687 tons gross register of the steamer per day, in accordance with the terms of her charter party. This is at the rate of £ 46/1/9 per day, and, for the demurrage period above mentioned (at the rate of exchange of $4.86), the total amount of demurrage is $1,180.85. In paying the freight, respondent made certain erroneous deductions for which libelant is entitled to recover, totaling $192.16. These deductions are:
(a) Extra labor for cleaning, etc., bilges, ribs and side of ship, $74.43 (b) Cleaning linseed out of bridge deck, 74.40 (c) Detention of stevedores, 13.33 (d) Supplying rope for slings, 30.00
7. The libelant is also entitled to recover by virtue of the agreements between the parties $343.07, as follows:
(a) Excessive port charges at New York over Philadelphia, $ 97.20 (b) Cost of supervisor employed in lieu of tally clerks, 94.13 (c) Overtime of Customs Officers, 12.09 (d) Ship's rope 139.65
8. Libelant is also entitled to recover $195.62 representing interest because of delayed payment of freight by respondent.
Conclusion of Law.
In consideration of the steamer Eugenia being diverted to New York, respondent agreed to pay libelant demurrage at the charter party rate in the event that the Eugenia was not discharged at the rate of 1,000 tons per running day.
In view of the findings of fact heretofore made, the libelant is entitled to recover from the respondent the sum of $1,911.70, with interest on $195.62 from October 28, 1930, and with interest on the remainder from March 12, 1930.
I agree with the findings and conclusions set forth in the report of the special master. A final decree confirming the report and allowing the special master for compensation and disbursements the sums agreed upon may be submitted.