All the claims in this case are agreed upon, except as to claim for demurrage. This claim, arises upon the following clause in the bill of lading:
“In case consignees discharge cargo, or any part thereof, they are to be charged not to exceed 10 cents per ton, and to have four full working days, after notice of arrival at dock of consignee of said boat, in which to discharge cargo; and to pay master, for any time (exclusive of Sunday) boat is detained for discharging after the expiration of the said four days, five dollars per day, and at the same rate for portions of days.”
The decision of this court in Tuttle v. Albany & Rensselaer Iron and Steel Co., upon a bill of lading substantially identical with this, (see opinion by Choate, D. J., May 23, 1879,) is, I think, controlling in this case. It was then held that upon such a bill of lading as this the defendant had an election, upon arrival of the boat, whether it would itself unload the coal or require the master to unload, as it was otherwise his duty to do. On arrival the captain was in this case notified that the defendant would not unload the boat except in its regular turn, and in that case would pay no de-murrage, and a berth was offered the captain where he could himself unload if he did not accept that offer. The captain declined this *448offer unless be could have such additional facilities for unloading as defendant bad at its own dock, or unless defendant would agree to pay tbe increase of cost over 10 cents per ton. These things tbe captain bad no legal right to ask for. He seems to have supposed that be bad a right to be unloaded at 10 cents per ton.
Tbe case above cited bolds that it was primarily tbe captain’s duty under this bill of lading to unload tbe cargo; and in offering him a berth, though without special facilities for speedy and economical unloading, tbe defendant discharged all its legal duty upon tbe arrival of tbe boat. This offer of a berth is sworn to by tbe defendant’s witnesses, and tbe captain of the boat distinctly admits such offer, and bis refusal to unload except upon tbe terms stated. After this refusal tbe defendant was not required to make any further tender of a berth. Tbe defendant’s notice to him was a rejection of its right of election to unload under the bill of lading; and tbe subsequent delay was 'by tbe captain’s own choice, and for bis own convenience and economy. Eatber than incur tbe increased expense of unloading without machinery or power, tbe captain chose to await bis turn and enjoy tbe advantages of defendant’s special facilities for unloading. After tbe notice given him be bad no right to wait and take advantage of defendant’s improved facilities at their expense, nor avail himself of their facilities, except upon tbe terms expressly stated to him, viz., that no demurrage should be paid. His claim that be would charge for demurrage, which tbe defendant told him would not be paid, could not impose upon tbe defendant any liability which they were not already under. The final unloading of tbe boat by tbe defendant in its turn cannot be construed as done under tbe election contained in tbe bill of lading, but as a subsequent favor to the captain independent of tbe bill of lading, and imposing no liability under it.
Tbe libellant should have judgment for tbe amount tendered, and deposited in court, with costs prior to tbe tender to tbe libellant, and with costs since the tender to tbe respondent.