Opinion
Argued March 4, 1886
Decided March 23, 1886
J.A. Hyland for appellant. Wm. C. Holbrook for respondent.
It seems to be the prevailing doctrine that a consignee, who at the same time is the owner of the cargo, is liable to the owner or master of the vessel for damages in the nature of demurrage, for an unreasonable delay in discharging the vessel after arrival, although the bill of lading contains no stipulation as to demurrage, and prescribes no time within which the cargo shall be discharged. ( Henley v. Brooklyn Ice Co., 14 Blatchf. 522; Cross v. Beard, 26 N.Y. 85; Fulton v. Blake, 5 Biss. 371.) The coal which formed the cargo of the "Scholl" had been purchased by the defendant of the shipper, and was shipped by the vendor to the defendant at Hudson. Upon the facts proved, the defendant as between it and the carrier was both owner and consignee of the cargo. The General Term reversed the judgment of the trial court on the ground that the plaintiff, the master of the "Scholl," in view of the fact that by the bill of lading he was not only to carry the coal but also to discharge it at the port of destination, was bound, in order to put the defendant in default, to call upon the defendant on arrival to designate a place where it could be unloaded. We are of opinion that when the plaintiff on arrival reported to the defendant and requested to be discharged, and offered to do the shoveling of the coal if the defendant would provide for taking it away, which it declined to do, but insisted upon his taking his turn in unloading at the wharf, he did what was equivalent to an offer to perform the contract on his part. It then became a question of fact to be determined upon all the circumstances, whether there was unreasonable delay on the part of the defendant in discharging the vessel. We do not perceive that the case of Cross v. Beard ( supra) has any material application. In that case the court reversed the judgment of the trial court in favor of the plaintiff, for the exclusion of evidence offered by the defendant, tending to show that the delay in unloading at the defendant's wharf was owing to a vis major, and was not the fault of the defendant. The fact that the defendant had declined upon the request of the plaintiff to allow him to unload at some other wharf, did not render the error harmless. The court held that it was for the jury to determine upon all the facts, whether the defendant had unreasonably delayed the discharge of the vessel. We think there was no error of law committed by the trial court, and we cannot, upon this appeal, review the findings of fact.
The judgment of the General Term should, therefore, be reversed, and the judgment of the trial court affirmed.
All concur.
Judgment accordingly.