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an entry of the time thereon, gave the captain no directions, and that his destination was apparently understood between him and Waterbury. The assignment must have been made by Waterbury on the 31st, who merely does not remember it. It is reasonable that the conversation which Manson and Hills narrate also took place at the same time.

The Wm. O. Snow came out and the Crescent went to the Shop dock on February 1st. On the same day, about 12 o'clock noon, the Sutton was towed to the entrance of the Shop dock channel. The tides were good, and she could have gone up to the Shop dock basin. On January 31st the ice was about an inch thick in the channel. On February 1st it was broken by rains. On February 2d, and thereafter it increased in thickness, and so continued until after February 15th, and a vessel could not get to the Shop dock unless a tug-boat should make a special trip and break the ice in advance. During the first week of February, Manson attempted to contract with the manager of one of the two principal tug-boat companies to tow him to the Shop dock, but was refused, because the manager did not think it safe either for the tug or tow to make the attempt. The Crescent tried to make a contract on February 6th with a tug-boat captain, to tow her out, but was unsuccessful. She remained at the wharf, frozen in, until March 6th. From January 31st to February 15th the Sutton could easily have gone to Belle dock as the main channel was kept open by the daily line of passenger steam-boats. The owners of tugboats refused to take her to Belle dock, because Mr. Waterbury had requested them not to do so. Capt. Manson offered to go there and tender the cargo. Mr. Waterbury forbade his coming.

The Crescent was discharged at 2: 20 A. M. on Thursday, February 5th. On February 4th Waterbury notified Manson that the Crescent would be discharged on the 5th, and that he should want the Sutton on that day. On February 5th Manson saw Waterbury and told him if the Crescent got out he would go in. Waterbury replied that when the Sutton got in he would have the Crescent out. The captain declined to go in until a passage was clear, and Waterbury declined to break the ice.

I make no finding in regard to a conversation which Mr. Waterbury and others say occurred on February 2d, which was to the effect that Manson asked for a berth at the Shop dock and Waterbury told him to go up the channel, and Manson declined to go till the Crescent was out of the way, because, in view of the conversation of January 31st forbidding Manson to go up the channel, and of the fact that on February 2d Waterbury knew that the ice prohibited the vessel from going up until it was broken, and of the further fact that the condition of the ice was about the same on February 2d as on February 5th, when the Sutton could not get to the wharf by the use of reasonable means, the conversation was not, in my opinion, of im portance.

The Sutton lay at the mouth of the Shop dock channel until February 15th. Then an arrangement was made between the captain and consignee by which the cargo was delivered at Belle dock to Williams, Wells & Co., who paid. the freight, and sold the coal; the captain retaining all his rights to claim demurrage, and no claim of either party being waived, relinquished, or admitted.

The vessel commenced discharging on February 16th, at 1 o'clock P. M., and was discharged on February 23d, about 9:15 A. M. If demurrage is to be allowed, it commenced on February 13th at 9:12 A. M., and is due for a period of 10 days, and amounts to $784. Under the terms of the bill of lading the Sutton was obliged to discharge at that one of the docks of the consignee which the latter might designate, provided the designated dock was accessible by the use of reasonable means by the ship-owner and within a reasonable time. Nelson v. Dahl, 12 Ch. Div. 568. The selection of the place. of discharge was with the consignee, and the ship-owner was obliged to use reasonable means to reach it, one of such means being the employment of a tug; but if, from physical or other causes, the place was inaccessible, unless by the use of unreasonable means or by waiting an unreasonable time, the consignee should have designated one of his wharves which was accessible and convenient for the discharge of the cargo. While this is true, it is also true that, under a bill of lading which requires delivery to be made at a named dock, arrival of the vessel at the dock is ordinarily a prerequisite to demurrage, and delays of the vessel within the port, for a considerable time, from accidents of navigation, without the fault of the consignee, do not require him to receive the freight at another place than that named in the bill of lading. Aylward v. Smith, 2 Low. 192; Parker v. Winlow, 7 El. & Bl. 942; Bastifell v. Lloyd, 1 Hurl. & C. 388; Hodgdon v. Railroad Co., 46 Conn. 277.

At the time of the arrival of the Sutton, the Shop dock was designated, and was accessible by the aid of a tug, and could have been reached without difficulty. But the consignee requested that the vessel should not proceed to the dock, but should wait at the mouth of the channel, three-fourths of a mile distant. If she had voluntarily waited at this point, and had been frozen in, the case would present different features, but having waited there at the request of the consignee, and being unable, on the 5th, when she was notified that she would be wanted, to obtain a tug to break the ice, and being prevented by the express direction and authority of the consignee from unloading at its accessible dock, the liability of the consignee for demurrage seems to me to be complete. The accident of navigation which prevented the Sutton from reaching the Shop dock was encountered by the direction of the consignee. If that dock had been accessible by the use of reasonable means when the Crescent had unloaded, the case would have been different, but it was then inaccessible, unless by the use of unreasonable means, for an unreasonable time. The

Belle dock was accessible, but the consignee prevented the vessel from unloading there.

The facts in Choate v. Meredith, 1 Holmes, 500, bear an analogy to the facts here. In that case the consignee's wharf was inaccessible for an unduly long time by reason of ice and lack of sufficient water, whereupon the libelant took the vessel to the only accessible wharf in the port, notified the consignee, and offered to deliver the cargo, which offer was not accepted. The demurrage claimed was the same as in the bill of lading in this case. It was held that the libelant was entitled to demurrage.

There should be a decree in favor of the libelants for $784, and interest from February 23, 1885, and costs.

THE WIVANHOE.

UNION COTTON COMPRESS Co. OF GALVESTON V. THE WIVANHOE.

v.

(District Court, E. D. Virginia. March 30, 1886.) ADMIRALTY-JURISDICTION-CONTRACT TO COMPRESS CARGO AND PUT ON BOARD

SHIP.

Where a compress company contracted with the master of a ship for compressing her cargo of cotton, and putting it on board, held, that this was a maritime contract within the admiralty jurisdiction, on which a libel in rem against the ship, wherever found, would lie.

In Admiralty. On a libel for compressing and delivering on board a cargo of cotton.

The cotton was compressed in Galveston, Texas, and put on board the steam-ship. The ship, bound to Liverpool, put into Norfolk to complete a supply of coal for the voyage. She was here libeled for the compress charges by instructions from the libelants, in Galveston. The libel set out, among other things, the following facts:

"On the fourteenth day of November, 1885, the said steam-ship, then lying at the port of Galveston, and requiring cargo of compressed cotton, at the special instance and request of her said master, R. D. Clark, employed and contracted with the libelants to compress her said cargo of cotton, to the amount and at the prices set forth in the schedule hereto annexed, which contains a just, true, and correct account of the work done and charges made for the same. And thereupon the libelants commenced, on the fourteenth day of November, 1885, and continued the work of compressing cotton for the said steam-ship Wivanhoe until the twenty-fourth day of December, 1885, when they completed the said work; and on the day last aforesaid had pressed and delivered to the said steam-ship 2,023 bales of cotton, and the same were received on board, and are now in said steam-ship as cargo.”

The allegations of the libel were not denied, and the case was heard on the motion of the respondent to dismiss the proceeding on the ground that the contract of a compress company for compressing cotton is not within the admiralty jurisdiction, does not constitute a lien upon the vessel on which the cotton compressed is found as cargo, and cannot be made the subject of a libel in rem against the vessel.

White & Garnett, for libelant.
Ellis & Kerr, for respondent.

HUGHES, J. The question here is analogous to the much debated one, whether the contract of a stevedore is maritime, and will sustain a libel in rem against a ship. For some time it was held that a stevedore's contract for loading a vessel was not within the admiralty jurisdiction, though his contract for unloading it was. Opinion has undergone a change in this respect, and the tendency now is to hold a stevedore's contract to be within the admiralty and maritime jurisdiction. The question was discussed very fully by Judge LOWELL, who affirmed the jurisdiction, in the case of The Geo. T. Kemp, 2 Low. 482-485. It has more recently been considered by Judge DEADY in the case of The Canada, 7 Fed. Rep. 119, and the affirmative held, upon a strong array of reason and authority. See, also, The Windermere, 2 Fed. Rep. 722; The Hattie M. Bain, 20 Fed. Rep. 389; The Velox, 21 Fed. Rep. 479; The Circassian, 1 Ben. 209; The Kate Tremaine, 5 Ben. 60; The Senator, 21 Fed. Rep. 191; The Emily Souder, 17 Wall. 669. Per contra, see The Bark Ilex, 2 Woods, 229, and the cases there cited, viz.: Cox v. Murray, 1 Abb. Adm. 342; McDermott v. The Owens, 1 Wall. Jr. 371. See, also, The E. A. Barnard, 2 Fed. Rep. 712.

I see no reason why a stevedore's contract for loading, if made with the master of the vessel, is not to be deemed maritime. On the other hand, I can well perceive that if a stevedore makes a contract with one who wishes to ship merchandise on a vessel, to put the merchandise on board, both being landsmen, and neither having any other mercantile relation to the vessel, I say I see no reason why such a contract should be held binding on the ship. But where the master himself employs the stevedore to put and stow his cargo on board, the contract seems to me to be as distinctly maritime as any other contract which the master may make with a landsman touching the vessel herself or her cargo.

The analogy of a contract for compressing the cotton constituting the cargo of a ship with the contract of a stevedore seems to be complete. In the case at bar, I infer from the language of the libel, which is given above, that the ship had engaged to carry certain 2,023 bales of cotton to Liverpool; that in the original form of the bales it was impracticable to stow such a number of them on board; that to meet this difficulty the ship herself employed the compress company to reduce the bales to convenient size for shipping, and to put them on board; and that the libelant faithfully executed this contract. In its mere statement, the case seems to me to be clearly within the admiralty jurisdiction, irrespectively of the circumstance whether the vessel was domestic, which she was not; or foreign, which she was. I will decree for the libelant.

END OF VOLUME 26.

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