THE ASSYRIA. DERNIER v. H. BAARS CO., 98 F. 316

PARDEE, Circuit Judge, after stating tbe case as above, delivered the opinion of the court. By a provision" in the charter party, the custom of the port is to be observed in all cases when not otherwise specifically expressed in the charter party. The charterers contracted to furnish the vessel in the port of Pensacola a full and complete cargo of resawn pitch-pine lumber. By the well-proved custom in the port of Pensacola, resawn pitch-pine lumber included all kinds of sawn pine lumber and square pine timber.

It was therefore clear that the charterers had a right to deliver, as they did, pine square timber as a part of the cargo of the vessel, and all contentions of the claimant based upon the alleged wrongful substitution of square timber for boards and planks must fall.

It seems equally clear, considering the proved custom in the port of Pensacola and all the provisions of the charter party, that the clear day which was to follow notice, and to precede the commencement of the lay days, as provided in the charter party, meant more than a calendar day, and, while not necessarily a working day, yet a day which could be lawfully utilized by the charterers to prepare cargo; and as Sunday, the 28th day of June, was not such a day, the lay days should be held to have commenced to run on Tuesday, June 30th.

The charter party expressly provides that the lay days which were to be allowed for loading and unloading cargo were not to include Sundays. The object of giving one clear day after the vessel was ready to receive cargo was unquestionably for the purpose of allowing the charterers time to prepare cargo for delivery. Hunday was not a day during which this work could be done. See The Unionist (I). C.) 48 Fed. 315, where the subject is further discussed.

The number of lay days for loading cargo was, by the terms of the charter party, made to depend upon the amount of cargo furnished the vessel, one day being allowed for every 50,000 superficial feet. The contention on the part of the libelant is that the lay days were to be determined by the amount of proposed cargo delivered to the vessel, though not actually stowed aboard, while, on the other hand, it is claimed that the lay days depend upon the cargo actually stowed. The language of the charter party is, “the cargo to be furnished at the port of loading, at the average rate,” etc.

It otherwise provides that all the labor and expense of loading were to be furnished by the charterers, who were to appoint and pay the steve dore to load the cargo; and that with the loading the master and crew of the vessel had no concern, except to pay the stipulated price at the rate of §2 per load of 50 cubic feet of cargo laden.

From this it seems clear that the intention of the contract was that the cargo should be loaded at the rate of 50,000 superficial feet per running day, and that the number of lay days was to depend upon the cargo loaded, rather than upon the proposed cargo delivered by the charterers practically to themselves, for the purpose of eventually loading the same. The vessel could have no interest in lumber that the charterers might prepare and get ready, but not eventually load.

As, by the terms of the charter, the whole business of loading was in the control of the charterers, who could delay or dispatch as they willed, we hold that the term “cargo to be furnished” means, in this charter party, cargo to be loaded, and the lay days must be determined by the quantity of cargo loaded. In Guerard v. The Lovspring (D. C.) 42 Fed. 856, and in Baldwin v. Timber Co., 142 N. Y. 279, 36 N.

E. 1060, charters similar to the one under consideration, and containing a provision for the charterers to do the stowing, were construed to the effect that cargo was not furnished to the vessel until the same was actually slowed on board by the charterer. By the proof as well as the stipulation in the record, 817,222 feet were actually stowed aboard the vessel, and that quantity, at 50,000 feet per running day, gave 17 days for the number of lay days to be allowed the charterers for loading. The lay days commenced on Tuesday, June 30th, and, excluding Sundays, six had passed when the storm occurred, July 7th.

After the storm, the lay days again commenced to run on August 4th, and the 17 lay days expired Saturday, the 17th day of August. The cargo was finally delivered, and the bill of lading presented to the master of the vessel for signature, on August 20th. The libelant admits that 20 days, excluding Sundays, were taken in loading the vessel, and we therefore find that at the time of clearance the vessel was entitled to 3 days’ demurrage. After the bill of lading was presented to the master for signature, he delayed several days before signing the same, and for this delay the vessel also claims demurrage.

The reason given for the delay by the master was that therein the cargo was not correctly described, nor was there any protest for demurrage. As ¿he master, after a week’s delay, corrected the bill of lading in these respects, and 'then signed and delivered the same, we are unable to see any reason why he did not do so without delay; and, certainly, there is no good reason to charge the charterers with the delay the master took to deliberate. There is evidence in the record tending to show that the master was waiting to consult owners and obtain money to pay the vessel’s expenses, but it is not very material.

The claimant in the court below, in Ms cross libel, claimed that in the account rendered by the H. Baars Company for loading the vessel, and which account was paid by the claimant, there were overcharges for manifest, harbor master’s fees, chains lost, dogs lost and broken, and expenses for stamps and rafts, in all amounting to $33.20. These expenses were not properly chargeable to the vessel, because, under the terms of the charter party, the charterers were to load the vessel, and pay wharfage, tonnage, custom-house, quarantine, and harbor master’s fees, etc.

The account was settled by .the master; apparently without objection, and in a subsequent account for readjustment of charges, wMch was settled by the libelant, no mention is made of these charges; but as these matters were clearly overcharges, and as in this case the accounts between the parties are generally adjusted, the claim for $33.20 should be allowed. Following the views herein expressed, the account between the parties is as follows: The vessel owes the libelant $98.80, extra expenses of the vessel on her second trip to quarantine; $551.04, amount of demurrage paid in Buenos Ayres.

The libelant owes the vessel $275.52, three days’ demurrage, at $91.84 per day; and the further sum of $33.20, overcharges for dogs, chains, etc. The balance due libelant is $341.12, for which amount, with interest at 5 per cent, per annum from August 2*9, 1896, the libelant should have a decree.

The decree appealed from is reversed, and the cause is remanded, with instructions to enter a decree for the libelant for the sum of $841.12, with interest at 5 per cent, per annum from August 29, 1896; the costs of this court to be paid by the appellee and cross libelant, and the costs of the district court to be paid one-half by each party.