196 U. S.

Argument for the United States.

was to be delivered on the wharf at Honolulu. The agent of the United States had no knowledge of the customs of San Francisco. If any customs controlled they would be those of Honolulu and not of San Francisco. Carver on Carriage by Sea, 461. The liability of the United States was only that of consignee. 9 Am. & Eng. Ency. of Law, 2d ed., 229, 257.

Where the vessel arriving is obliged either by custom of the port or bill of lading to await its turn in discharging the consignee is not liable for demurrage caused by the harbor being overcrowded. Owen v. 49,774 Bushels of Rye, 54 Fed. Rep. 185; Riley v. Cargo of Iron Pipes, 40 Fed. Rep. 605; Cross v. Beard, 26 N. Y. 85; Wordin v. Bemis, 32 Connecticut, 268; The Glover, 1 Brown, Adml. 166; Clendaniel v. Tuckerman, 17 Barb. 184; Towle v. Kettell, 5 Cush. 18; Weaver v. Walton, 5 Chi. Leg. N. 125; Abbs. Ship. 311; Fulton v. Blake, 5 Biss. 371; Rodgers v. Forresters, 2 Camp. 483; Burmaster v. Hodgson, 2 Camp. 488; The M. S. Bacon, 3 Fed. Rep. 344; Coombs v. Nolan, 7 Ben. 301; Velatty v. Curtis, 41 Fed. Rep. 479; The Elida, 31 Fed. Rep. 420; The Mary Riley v. 3,000 Railroad Ties, 38 Fed. Rep. 254; Empire Transp. Co. v. P. & R. C. & I. Co., 77 Fed. Rep. 919; Smith v. Granite Paving Co., 56 Fed. Rep. 525.

Where the consignee is not bound by the contract to furnish a berth (and the consignee in this case certainly was not), and where the vessel is required to take its turn in unloading (the vessels in this case certainly were), he is not liable for delay caused by an extraordinary accumulation of vessels to be unloaded. Such is the principle to be gleaned from the authorities heretofore cited. Reasonableness is all that is required of the consignee with reference to the receipt and disposal of a cargo in all shipping contracts, and as we have before stated, where the charter party or the bill of lading is silent as to the matters in dispute here, reasonable conduct only is required. Whiteside v. Halstead, 90 Illinois, 95; Etten v. Newton, 134 N. Y. 143; Dayton v. Park, 142 N. Y. 391; 9 Am. & Eng. Ency. of VOL. CXCVI-11

Law, 2d ed., 255; Carver's Carriage by Sea, §736; 7 Comp. Dec. 573; 2 Parsons, 423.

No particular wharf was designated, but it was specifically and definitely stated in the contract that the coal should be delivered at a wharf in the port of Honolulu and the facts found show that only one of three places at said port would conform to this requirement. To one of these places the ships in question must come before "lay days" would commence to run, and the United States as consignee was not liable for delays to the ships in coming to such place or places caused by their occupation by other ships.

So it seems clear that the "lay days" provided for said vessels should not be held to begin to run against the United States until after the arrival of the vessels in question at the wharf. Bereton v. Chapman, 5 Moo. P. 526; Bremner v. Bunell, 4 Sess. Cass. 934.

As to definition of "about," see Benj. on Sales, § 691; 96 U. S. 168, 171, 172; 115 U. S. 189, 204; 57 N. Y. Super. Ct. 57; 54 Maryland, 187; 7 Ind. App. 462, 467; 5 Gray (Mass.), 589; 6 El. & Bl. 675, 678; 2 Camp. 56; L. R. 5; P. C. 203, 217; 1 P. C. Div. 155, 158.

It is only a question of whether or not, under the circumstances surrounding this particular case, the delivery of 4,634 tons of coal was the delivery of "about 5,000 tons" of coal. It seems clear that it was.

MR. JUSTICE MCKENNA delivered the opinion of the court.

The appellant is a general commission merchant and shipper at San Francisco. He filed his petition in the Court of Claims, consisting of two paragraphs, in the first of which he claimed reimbursement from the United States of the sum of $1,053.36, demurrage paid by him for the detention over lay days of two ships chartered by him to transport coals to Honolulu and there to be delivered to the United States. By the second paragraph he prayed the recovery of the sum of $1,120.87, the

difference between the contract price of 366 tons of coal, which the United States refused to receive, and the price obtained for the same upon the sale in open market.

The causes of action rested on two contracts entered into by appellant with the United States through the proper officer of the Quartermaster's Department, United States Army, by which appellant agreed to furnish and deliver to that Department, Honolulu, Hawaiian Islands, "at the wharf," about 3,900 tons of the best merchantable "Wallsend" Australian steam coal, at the rate of not less than 100 tons a day, at 2,240 pounds to the ton, dangers of the sea and any causes beyond appellant's control excepted, the deliveries to commence on the arrival of the Hawaiian ship Euterpe at Honolulu, on or about July 23, 1898, for and in consideration of which appellant was to be paid at the office of the Quartermaster, United States Army, at San Francisco, California, at the rate of $9 per ton, in gold coin of the United States.

And by the second contract appellant was to deliver "on wharf, as customary," about 5,000 tons of the best merchantable Australian, Seaham, Wallsend or Pacific Coöperative steam coal, deliveries to commence at Honolulu on or about October 1, 1898. The other facts were found by the Court of Claims, as follows:

"III. That at the respective times these contracts were made it was the custom at San Francisco, between shippers and shipowners to insert in their charter parties a stipulation to the effect that cargoes were to be discharged as customary, in such customary berth or place as consignee shall direct, ship being always afloat, and at an average specified number of tons per weather working days (Sundays and holidays excepted), to commence when ship is ready to discharge, and notice thereof has been given by the captain in writing, and if detained over and above the said laying days, demurrage to be at 4d. register ton per day, which stipulation was duly inserted in the contract of the claimant with the ships employed by him to transport the coal mentioned in the contracts. It does not appear

that the officers and agents of the defendant, who were authorized to make, and did make, the contracts for the defendant, had knowledge or notice of such custom, nor that the contracts or either of them were made in view of such custom.

"IV. The claimant [appellant] discharged his said contracts as follows: The first contract: By the arrival at Honolulu of the ship Euterpe with 1,543 tons of coal, July 31, 1898, which was placed in berth at the wharf by the harbormaster of said port August 8, 1898, at 2.15 P. M., and commenced discharging coal at 3 P. M. same day, and finished August 29, 1898, consuming eighteen working days. If she had been discharged at not less than 100 tons per day, the time consumed would have been sixteen days. It does not appear that the defendant was at fault either in the loss of time in arriving at the wharf, nor in the discharge of the cargo afterwards. The court finds the defendant was able, ready and willing to receive the cargo as rapidly as discharged at the wharf. The claimant paid to the shipowner $1,053.36 demurrage for these delays.

"The second contract: 1. By the arrival of the bark Harvester, with 2,179 tons of coal, August 28, 1898, at Honolulu, which was placed at a berth at the wharf by the harbormaster September 16, 1898, and began discharging coal on that date, and completed same October 7, 1898, a period of eighteen working days. It does not appear that the defendant was at fault in the loss of time of said last-mentioned ship in arriving at the wharf. 2. By the arrival of the ship General Gordon at Honolulu, August 27, 1898, with 2,455 tons of coal. While at anchor, September 9, 10 and 11, 330 tons were discharged into steamship Arizona, a transport of defendant, for its own use, after which the Gordon was placed at a berth at the wharf by the harbormaster, September 14, at 1 P. M., and then commenced the further discharge of the cargo, completing the same October 4, no delays having occurred at the wharf. It does not appear the defendant was at fault in the ship's delay in reaching the wharf. In the case of each ship the defendants had notice in writing of their respective arriv

als within twenty-four hours thereafter. The wharves at Honolulu are under the control of a harbormaster. The practice of such harbormaster was to assign ships to berths at the wharves in the order of their respective arrivals, and this practice was followed by him in respect to the ships mentioned. Claimant paid said shipowners for delays $1,433.12 to the Harvester and $744.48 to the General Gordon. All coal delivered was paid for by defendant.

"V. The coal actually delivered under the second contract was 4,634 tons, completed October 7, 1898. About a month subsequent to this claimant purchased 366 tons of coal of the barkentine Omega, then in the Honolulu harbor, and tendered the same to the defendant upon its contract of June 23, 1898, but the defendant refused to receive it, whereupon claimant sold the same in market, for the best price he could obtain, at $3.06 per ton less than $9, the contract price with the defendant, equivalent to $1,120.87 in all, and to his loss in that amount.

"VI. At the time of the delivery of the coal mentioned in the foregoing findings the Honolulu harbor had eleven docks or wharves, three of which only were used for the discharge of coal. The docks were crowded, and several vessels were moored at the reef. By local regulations of the Government, a harbormaster had general supervision of all vessels in the harbor, and all vessels were anchored and assigned to berths, in the order of their arrival, by the harbormaster. There were no lighters for public use, and defendant had none at the port, and it was usual or customary to discharge freight upon the wharves. The defendant had no authority over the wharves, and was subject to local regulations, and the order of the harbormaster, the same as individuals."

As a conclusion of law the court decided that appellant was not entitled to recover. 38 C. Cl. 590.

The question in the case is whether the delay at Honolulu in the delivery of the coal was caused by the United States or by appellant; or, in other words, whether it was the duty of