Morse v. Peasant Bros. 7 Bosw. 199, 20 N.Y. Super. Ct. 199

Richard Morse, et. al. Plaintiffs and Respondents, v. Peasant Brothers, Defendants and Appellants.

1. Where, by the terms of a charter party, it is provided, that the delivery of the cargo at the port of discharge, shall be “ according to custom and the bills of lading;” and that freight upon delivery, shall be paid at a specified price for each one hundred pounds net customhouse weight;” and that demurrage shall be paid at the rate of fifty dollars per day, for every day’s unauthorized delay; a consignee of the goods under bills of lading which declare that they are to be delivered to him, “ he paying freight for the said goods, as per charter party,” if he receive the goods with knowledge of the terms of the charter party and of the bills of lading, is liable to pay any sum which, by the charter party, may become payable at the port of discharge by reason of an unauthorized delay of such consignee, to accept a discharge and delivery of the goods so consigned to him, even though he be not named in said charter party, as a party thereto.

(Before Piereepont and Moncbiep, J. J.)

Heard May 11,

decided June 30, 1860.

Appeal by the defendants from a judgment against them entered on a verdict rendered on a trial had before Mr. Justice Pierrepont, and a jury, January 17, 1860.

This action is brought by R. A., J. G. and J. Parker Morse, as owners of the ship or vessel “Jane Parker,” upon a charter party, and three bills of lading, copies of which are annexed to the complaint, against Joseph A. and Manuel Peasant, defendants, composing the firm of Peasant Brothers, as consignees of part of the cargo received and carried under said charter party, to recover demurrage for the detention of said vessel at the port of discharge, (New York,) for eighteen days beyond the period allowable for discharging her, at $50 per day.

The charter party was made at Havana, where the vessel was then lying, by B.F. Bucknam, master, “ in behalf of the owners, of the first part, and Messrs. Hamel ¡k Co., merchants, of the Second part.” The vessel was to proceed to Cienfuegos, and there receive a cargo of sugar “ in hogsheads, with tierces and barrels for small stowage.” The *200provisions of the charter party as to delivery of the cargo, freight, lay days and demurrage, are as follows, viz :

“ The said vessel being so laden, Captain Bucknam shall, with all possible dispatch, make sail for the port of New York, or so near thereunto as she may safely get, and on his arrival at the port of discharge, make a true and faithful delivery of the cargo, according to custom, and the bills of lading.

“In consideration whereof, freight shall be paid on unloading and right delivery of the cargo, at the rate of fifty-seven and a-half cents per 100 lbs. net custom house weight, delivered.

“The lay days shall be as follows : Twenty-five running days allowed to load the vessel at Cienfuegos, to count from the time she is ready to receive cargo, after the expiration of which time the demurrage shall be paid at the rate of fifty dollars for each and every day, as it may become due.

“ The cargo shall be taken in and discharged according to custom of the respective ports of loading and discharging.”

The portions of the cargo mentioned in the three bills of lading, copies whereof are annexed to the complaint, by the terms of the said bill of lading, “ are to be delivered * * * at the aforesaid port of New York, * * * unto Messrs. Peasant Brothers, or their assigns, he or they paiying freight for- the said goods, as per charter party.” *

There was other cargo received under the charter party, and which by bill of lading signed by the master, was to be delivered at the port of New York, “unto H. Barnstoff, Esq., or to assigns, he or they paying freight for the said goods, forty-eight cents for every one hundred pounds net custom house weight, delivered.” * * * This part of the cargo was first laden, and was at the bottom of the vessel.

It was proved, that the charter party was made at Havana, with Hamel fy Co., but for the firm of Peasant Brothers, who had an interest in the cargo, and one of *201whom was then there. That the vessel arrived at the port of New York, May 30, 1851; that by the custom of the port of New York, a merchant has a right to detain a vessel arriving from a foreign port with a dutiable cargo, seven days, before commencing to discharge her; and that the cargo consigned to the defendants, all of which they received after being possessed with a copy of the charter party and of the three bills of lading, was not fully discharged until July 2, 1851.

The facts found by the jury, and as the court thought upon sufficient evidence, sufficiently appear in the charge to the jury, and in the opinion delivered at the general term.

The court charged the jury as follows :

“When the vessel arrived, it was the duty of the consignees to have the cargo discharged at as early a time as possible in accordance with the custom of the port, and the defendants might have placed the vessel in a condition to begin discharging after eight days from the arrival of the .vessel and entry at the custom house. If you believe that, according to the custom of this port, by ordinary due diligence of the consignees, the vessel could have begun discharging on the eighth or ninth day after arrival, you will then add what you think a reasonable time for completing the discharging; and the stevedore has said that the cargo could have been discharged in three or four days; and you will consider this in finding the reasonable time to be allowed for completing the discharging. You will consider that the vessel arrived on the thirtieth of May, and that the consignees of the vessel entered her on. the “five-day book” on the first of June, and that she could thus begin discharging on the eighth of June; and you will add to this three, five, or eight days, or whatever you may find reasonable and proper, for completing the unloading; and then deducting this time from the second July, when she was finally discharged, you will find the time she was detained by the consignees, and for this time the defendants are liable to demurrage' at fifty dollars a day. If, *202then, you find she was detained by the consignees, and also for a certain number of days, you will calculate it at the rate of fifty dollars a day, and render your verdict accordingly.”

The defendants (among other requests) prayed the court to charge :

“1st. , That by the laws of the United States, or the charter party, or the bills of lading in question, the defendants were not. bound to unlade the merchandise consigned to them within the period of seven days, after the arrival of the vessel.

“ 2d. That by the charter party, or the bill of lading in question, the defendants are not liable for any demurrage at the port of New York.

“ 3d. That the custom as proved, requiring consignees of cargo to deliver to the agents of the vessel within seven days after the arrival of the vessel, permits for the delivery of the merchandise, which is deliverable to the consignees, was complied with by the defendants, who therefore did all that said custom required.

“ 4th. That neither by the charter party nor by the bill of lading in question, was any right of the defendants, as consignees of the cargo, taken away. ******

“ 9th. That the defendants were not the charterers of the vessel, nor bound by its terms, to do more than pay freight according to the rate of freight therein specified.”

The defendants objected to the admission of the charter party and the three first named bills of lading in evidence, “ on the ground of their incompetency to prove any liability of the defendants for demurrage; subject to which objection said evidence was admitted.”

The jury rendered a verdict in favor of the plaintiffs for $900, and from the judgment entered thereon, the present appeal is taken.

J. S. McCulloh, for Appellants.

I). A. Hawkins, for Respondents.