Clendaniel vs. Tuckerman, 17 Barb. 184

By the Court, Harris, J. The judge at the circuit was undoubtedly right in holding that the action was properly brought. The plaintiff, though not an owner, had such a special property in the vessel as enabled him to collect the freight. He was the contracting party.

He, and not the owners, agreed with the defendant, through his agent, for the carrying .of the coal, and it does not lie with the defendant to dispute his right to receive the freight for which he stipulated, when earned. • But I cannot agree with the learned judge in holding that the evidence failed to establish a case in which freight was recoverable. I know that it is a general rule that the contract for conveyance must be completely performed, by the delivery of the goods at the place of destination, before freight can be demanded.

It is as much the duty of the carrier to deliver as it is to transport the cargo. But there are cases where the readiness of a party to perform

an act, with notice of such readiness, is equivalent, in legal effect, to actual performance. I think this was such a case. The plaintiff upon his arrival had reported himself ready to deliver his cargo. The defendant was not ready to receive it. If his arrangements were such as to allow but one vessel to discharge at a time, then he was in fault for having freighted so many vessels, to arrive at the same period. He had not stipulated with the plaintiff for any delay.

If he could provide for several vessels, to discharge at the same time, as it seems was subsequently done, then he was in default for not having sooner made such provision. In either case, it was the neglect or default of the defendant, and not of the plaintiff, which subjected him to the delay. He was in readiness from Tuesday until Saturday morning to discharge his cargo ; and had the defendant been ready to receive it, the cargo would have been delivered before the freshet commenced. The plaintiff had no alternative but to wait the convenience or pleasure of the defendant.

To say, under these circumstances, that the responsibility of the plaintiff as a carrier still continued, would be unjust, in the extreme, I know of no rule of law that requires it. Having tendered a delivery of the coal, and being obliged, against his will and without any fault or neglect on his part, to retain the possession, his contract as a carrier was performed, and he held the coal as a mere bailee in deposit, liable only when chargeable with negligence. This view of the case is abundantly sustained by authority. In Bradstreet v. Baldwin, (11 Mass.

Rep. 229,) an action was brought to recover the freight of a vessel which had been chartered for a voyage from Boston to Tobago and back. The contract was to pay “ $2100 in full for freight' in 30 days after the return cargo should be discharged.” The ve'ssel, upon its return to Boston with the cargo, was seized for a violation of the non-interCourse law. It was held that, if thé delivery was prevented by an attachment or seizure for a default of the defendant,- the plaintiff would be as well entitled to recover as upon an actual discharge and delivery of the cargo. (See also Palmer v. Lorillard, 16 John. 356.

Morgan v. Ins. Co. of North America, 4 Dallas, 455. Powell v.

Myers, 26 Wend. 597.) “There may unquestionably be cases,” says Yerplanck, senator, in the case last cited, “ where, at some time after the arrival at the place of destination, the strict responsibility' of the carrier; as such, for goods or baggage remaining in his possession undelivered, without fault or neglect of his* own, should cease, and he would then continue to hold them, not as* a carrier, but as a mere bailee in deposit, gratuitously or otherwise, according to circumstances.” The same senator, whose opinions are the ornament of the pages' which record the decisions of his official day, adds, that the general legal rule governing such cases; .did not seem, as yet, to have been distinétly and comprehensively laid down,- although thé principle was fo be found both in decisions and text books.

Mr. Justice Platt, also, in Ostrander v. Brown, (15 John. 89,) referring to this class of cases, says,- “ If the consignee1 would not take charge of the goods, the carrier ought to have secured them on board his vessel, Or in some other place of safety, and that would have entitled him to his freight, with all extra charges.” • The cas'e of Goold V. Chapin, (10 Barb. 612,) is very much in point. Indeed/ the principle which controlled the decision of that case must, I think, be regarded as- conclusive upon the question now under consideration.- The' action was against carriers, for the loss of goods.

As in this case; the goods,- so far as the carriers were concerned, had reached their place of destination. The carriers had taken them fitom thé' bárge tí^on which they had been transported, and placed theta tipon a float lying in the Albany basin, for' the purpose of more convenient delivery. On Tuesday the consignees were notified that the goods were upon the float, and were requested to receive them. The notice atid request were repeated on Wednesday. On Thursday, the goods not yet having been removed, the float was destroyed by fire.

It was held that the liability of the carriers, as insurers of the goods, had ceased at the time of the fire,- and that they held the goods as bailees in deposit merely; aitd, it appearing that they were destroyed without any fault of the defendants, they were not liable. ^Ir. Justice Johnson, in delivering the judgment of the court, has examined, in a well considered argument, the question which Senator Verplanck, in Powell v.

Myers, regarded as yet unsettled by authority. •'•" The obligation in such a case,” he says, “ is not all on one side; it is as much a part of the contract, that the owner or consignee shall be ready at the place of destination to receive the goods when offered, or within a reasonable time thereafter,- as that the carrier shall transport and deliver them.

It cannot be considered within the contemplation of the parties to such a contract, that the consignee or owner may delay receiving the goods on their arrival, to suit his own necessities or convenience, and thus continue indefinitely this extraordinary risk of the carrier.” And again he says, “ I think it must be implied in every contract of this nature, that if the consignee is not found, of does not immediately accept the goods when offered, the carrier may, if he so elect, keep them as bailee in deposit.

His liability is not at an end entirely, but it assumes a different and less onerouS character.” This, then, is the rule of law applicable to the case in hand. The plaintiff having arrived with his cargo at the place of destination and offered to dcliVer it, the owner of consignee was bound to receive it within a reasonable time. The owner or consignee having neglected; either from necessity or convenience, thus to receive the cargo, the plaintiff would have had the right, had it been practicable; to leave the cargo in store, and thus discharge himself from all further liability.

In that case, the owner would have befen liable, not only for freight, but also for storage. But he had the right also to retain the cargo himself. In this case he had no alternative, for it appears that he could not have discharged it elsewhere than at the owner’s dock, and that was preoccupied. He thus became a mere depositary of the coal, gratuitous, I admit,' yet liable for want of ordinary care. His contract, as a carrier, had been performed. He was entitled to receive the stipulated compensation. Nor can I entirely agree with my learned brother in his views upon the other branch of the case.

It is true that demurrage, properly so called, is only payable when it is stipulated for ithe contract of affreightment. But it is also true that when a vessel has been improperly detained by the freighter or consignee of the cargo, the owner may have a special action for the damage resulting to him from the detention. (Abbott on Shipping, 304. Horn v. Bensusan, 9 Carr, & P. 709. Kell v. Anderson, 10 Mees, & W. 498.) In Evans v.

Forster, (1 Barn, & Ad. 118,) the action was brought by the master of a vessel, who alleged in his declaration that the vessel had arrived at London, the place of destination, with the goods, and that he was ready to deliver them, of which the defendant had notice, and, although a reasonable time had elapsed, the defendants had not accepted and received the goods, for which detention he claimed to recover damages. Upon the trial before Lord Tenterden the plaintiff was nonsuited, not on the ground that such an action was not maintainable, but on the ground that the master of the vessel could not maintain it.

It was held that though the master might sue for the freight upon a bill of lading, yet, when the action was for detention, it cotdd only be brought by the owner. Brouncker v. Scott, (4 Taunt. 1,) is to the same effect. In Jesson v. Jolly, (4 Taunt. 52,) the master was allowed to maintain such an action, upon the ground that it had been provided for in the bill of lading. In Robertson v. Bethune, (3 John. 342,) the action failed, upon the ground that there had been no detention of the vessel with which the defendant was chargeable.

There can be doubt, I think, that, when there has been ho express agreement for demurrage, if the vessel is detained an unreasonable time by the freighter or consignee, the owner of the V vessel may recover damages, in the nature of demurrage, for such detention. To sustain such an action, it must appear that the vessel was improperly detained. This was a question of fact to be decided upon the trial—a question, too, of no great importance in this particular base ; for though the detention may have been unreasonable, the defendant could hardly be made liable for the consequential injury to the plaintiff.

The damages should be limited, I am.inclined to think, to compensation for the time the vessel was actually detained by the defendant beyond a reasonable time for the discharge of her cargo. [Albany General Term, September 5, 1853. Watson, Wright and Harris, Justices.] I am of opinion, therefore, that there was error at the trial, both in holding that the plaintiff was not entitled to recover for the freight until the cargo was actually delivered, and also in holding that damages could not be recovered for an unreasonable detention of the vessel. A new trial should therefore be awarded. Wright, J. dissented.