Fisher v. Abeel

By the Court, Mullin, P. J.

J.—This action was brought in a justice’s court by the plaintiffs to recover of the defendant damages for the detention of their canal boat, at Rondout, waiting for a load of coal to be carried for defendant to Syracuse. The defense was a general denial The *439defendant was a dealer in coal in Syracuse and bought coal of the Delaware & Hudson Canal Company whose coal yard was at Rondout.

George W. Stillwell, Jr., who had an office 119 Broad street, Hew York city, was the agent of the defendant for the sole purpose of procuring boats to carry coal from Rondout to defendant at Syracuse.

The course of business was for captains, or owners of boats, desiring to carry a load of coal for defendant to Syracuse, to call on Stillwell, and he would give an order on the canal company to deliver to the bearer of the order a certain number of tons of coal, specifying therein the freight to be paid, with directions to advance on the freight and for tolls, a specified sum of money. The bearer of the order would carry it to the agent of the coal company, and the coal would be delivered upon it in its order.

One of the plaintiffs testified that he called on Stillwell on the 8th of October, and asked for a load of coal, Stillwell gave him an order: it was enclosed in an envelope: he never read it, and did not know its contents.

The witness was asked if he had a conversation with Stillwell, and he said he had; and when asked to state it, defendant’s counsel objected to parol evidence of the bargain; as it appeared it was in writing, and the defendant’s counsel offered to produce the order, and also the bill of lading, in order to exclude parol evidence of the contract. The objection and offer were overruled, and the witness said that he asked for a load of coal. He said he had some to go to Syracuse. He (witness) told him he wanted some for Syracuse, he (S.) said he would give him $1 40 per ton and load right away as soon as he, witness, could get to Rondout. He wanted to load right away, so as to make another trip. He asked S. if he would have to lay at Rondoui, he said the boat could be loaded as soon as it got there: he said he: would give an order for three kinds of coal, so he, witness,, could be sure to load right off.

*440At a subsequent step of the case the order and bill of lading were put in evidence, and defendant’s counsel-moved to strike out the parol evidence of the contract.

It was impossible for the court to say upon the evidence of the plaintiff Fisher, before the written order was put in evidence, that it contained the contract between the parties.

The paper delivered by Stillwell was called an order. That term did not necessarily imply that it contained the con tract. It was the act of one of the parties only, the contract was the act of both.

The court was right in receiving the parol evidence of the conversation between Fisher and Stillwell, and in refusing to allow the defendant to put in the written evidence, while the plaint'ff was giving evidence.

I am of opinion the court properly refused to strike out the parol evidence as to the time within which the boat was to be loaded.

The order was not intended to embrace the whole contract : it was given in pursuance of part of it, and contained no more of it than was necessary to enable the coal company to know how much coal to deliver and for whom and the amount which it should advance.

The boat was detained at Rondout eight days before it got a cargo. Less than a day was required to load it when its turn came. It was proved that other boats arriving after the plaintiff’s, were loaded before it. The detention was some days and the damages shown to be worth from $12, to $25 per day.

Demurrage, properly so called, is the compensation provided for in the contract of affreightment, for the detention of the vessel beyond the time agreed on for loading or unloading ; (See Abbott on Shipping, 304; Parsons’ Mercantile Law, 362; Clendaniel agt. Tuckerman, 17 Barb., 184; Cross agt. Broad, 26 N. Y. 85; Moss agt. Pesant, 2 Keyes, 16.) The agreement for it must be expressed—it is not implied.

*441If an agreement for demurrage, it was by Stillwell as agent for defendant and it was by parol.

To enable S. to bind the defendant by such an agreement, he must have had authority from the- principal to make it. Not only is no such authority «proved, but it is expressly disproved.

If the agent could make a contract for the payment of demurrage, it must result from his authority to employ vessels for the defendant.

I am not aware of any authority that recognizes any such power in such an agent. He is of course authorized to make any such contract as agents employed in the same business are authorized to make. Whether such agents are accustomed to contract for the payment of demurrage, we do not know, as no proof was given on the subject.

It would seem to be reasonable that such agents might agree upon the length of time the "vessel should wait for a cargo, or for unloading, at the port of delivery.

It is important to the owner of the vessel, as well as the owner of the cargo, to know how long the vessel may be detained, as it may materially affect the price to be charged and paid for the freight.

But when, as in this case, vessels are compelled to wait their turn in being loaded, causing in one case a delay perhaps of one day, in another of ten days without fault on the part of the owner of the cargo, it might prove disastrous to him to permit his agent to bind him to load the vessel within any specified number of days.

It would seem that the plaintiff and other boat owners were under no obligation to delay until the vessel can be loaded, so' that, after waiting a reasonable time, they may /depart without the coal. When no time is fixed for loading or unloading it is to be done in reasonable time; and what constitutes reasonable time, is for the jury: and in determining what constitutes a reasonable time, the custom in force at the place of receiving the cargo, is to be taken into *442the account, so that, if vessels are required to wait their turn, the freighter is not liable for the detention of the vessel while it is waiting its turn (Cross agt. Broad, 26 N. Y., 85).

It would seem therefore that in the absence of proof of a custom for agents to agree with the owner of the vessel upon the lay days to be allowed the freighters, such authority cannot, in a case like this, be presumed, but it must be expressly proved. Ho such authority being proved, defendant is not liable on the express contract.

Although there is no express agreement for demurrage, damages in the nature of demurrage may be recovered against the owner of the cargo, when he improperly detains the vessel beyond a reasonable time for loading, or unloading (See cases cited supra).

Detention of a vessel while waiting her turn to load or unload, is not such a detention for which the owner of the cargo is liable (Cross agt. Broad, supra).

So that the defendant is not liable for damages in the nature of demurrage, unless he is responsible because the vessel is not loaded in her turn by the coal company.

It is said that vessels arriving after plaintiff’s, were loaded before her, and she did not get her turn.

For that wrong, the defendant is not liable; but the coal company, or its agents, may be.

The detention for which defendant is responsible, is caused by his own act, and not by the act of others over whom he has no control.

When there is an express agreement by the freighter that the vessel shall be loaded, or unloaded, in a specified number of days, he is responsible for any detention beyond that, although produced by causes over which he had no manner of control (See cases cited supra).

This doctrine has no application to the case before us.

The judgment is erroneous and should be reversed and a new trial ordered. Costs to abide the event.