payment of demurrage, the consignee, by simply accepting the goods, will not thereby become liable for the payment thereof.55 At the same time, while not liable strictly for demurrage, yet a consignee of the cargo, who is also the owner thereof, may be liable for damages in the nature of demurrage when the vessel is detained through the fault of the consignee an unreasonable length of time at the port of discharge. In such case, not only must the detention be proved, but the damages and their nature must also be the subject of proof. There is no express contract to refer to for the purpose of computing the amount to be paid on demurrage, and hence, in an action 55. Dayton v. Parke, 142 N. Y. 391, 37 N. E. Rep. 642, reversing 67 Hun, 137, 22 N. Y. Supp. 613; Van Etten v. Newton, 134 N. Y. 143, 31 N. E. Rep. 334, 30 Am. St. Rep. 630, affirming 8 N. Y. Supp. 478; Graham v. Planters' Compress Co., 129 Fed. 253; Merritt & Chapman, etc. Co. v. Vogeman, 127 Fed. 770, s. c. 143 Fed. 142; Steamship Co. v. Sharpe & Co., 59 L. J. Q. B. 22, (1890) Vol. 24 Q. B. D. 158. It is well settled that bills of lading which do not mention demurrage, or refer to any provisions of the charter other than those containing freight and average, do not subject indorsees thereof, who receive the goods under them, to any of the other provisions of the charter. They do not give them notice, or render them liable to, the specific provisions of a charter which require a discharge of a certain quantity of cargo per day, or in default thereof, the payment of a specific sum for a longer detention of the vessel; but they are entitled to take the goods within a reason able time after arrival, and are liable to pay damages for undue delay in taking them, according to the ordinary rules of law which govern in the absence of specific agreement. Crossman v. Burrill, 179 U. S. 100, 21 Sup. Ct. R. 38, 45 L. Ed. 106, reversing on other points, Burrill v. Crossman, 91 Fed. 543, 33 C. C. A. 663, and 65 Fed. 104. Where a consignee fails to take the cargo within a reasonable time after arrival, he remains liable for the damages arising from undue delay, according to the ordinary rules of law which govern in the absence of a specific agreement. Graham v. Planters' Compress Co., 129 Fed. 253. When the master of a canal boat presents bills of lading to the consignee which not only recite the terms of affreightment, but also contain a stipulation for demurrage after the expiration of three days allowed for unloading, by accepting the cargo, with knowledge of the contents of these instruments, the consignee recognizes them as binding contracts which define the rights and liabilities of the several parties thereto, to recover damages of that nature, proof must be given of their existence and amount.56 Sec. 854. Effect of "cesser" clause.-Charter parties usually contain what is commonly known as the cesser clause, such as, "Charterers' responsibility to cease when vessel is loaded, and bills of lading signed," and the question arises how far the claim of the shipowners against the charterers for demurrage is affected by that clause when followed by a lien clause in favor of the shipowners. The rule seems to be that the cesser clause and lien clause are to be read as co-extensive, and in a charter party which contains a clause for cesser of the liability of the charterers, coupled with a clause creating a lien and he cannot be heard to say Gabler v. McChesney, If the consignee is the owner of the goods and enters into a contract with the carrier for their transportation, that contract will govern even though the shipper of the goods stipulates in the bill of lading for a different rate of demurrage than that in the consignee's prior contract. Burns v. Burns, 131 Fed. 238, 65 C. C. A. 224, affirming 125 Fed. 432. 56. Dayton v. Parke, 142 N. Y. 391, 37 N. E. Rep. 642, reversing 67 Hun, 137, 22 N. Y. Supp. 613; Van Etten v. Newton, 134 N. Y. 143, 31 N. E. Rep. 334, 30 Am. St. Rep. 630, affirming 8 N. Y. Supp. 478; Conkling v. Brooklyn Lumber Co., 41 N. Y. Supp. 801, 10 App. Div. 404. number of lay days shall commence on the arrival of the ship in port, there results an implied contract that the consignees shall be responsible for the delays occasioned by failure to promptly secure a wharf for loading or discharging. But where wharves in the port are public, and cannot be controlled by the consignees, and the vessels are compelled by the proper public officials to await their turn, the obligations of the consignees are discharged if, when the vessels obtain a wharf and are ready to discharge, the consignees discharge and receive the goods as rapidly as their contract calls for. Flood v. Crowell, 92 Fed. 402, 34 C. C. A. 415. Where the words "or assigns" are found in the bill of lading, the master understands that the wharf of discharge may not yet have been selected, and there seems no Where there is no express con reason why his rights at the wharf tract on the part of the con- of the assignee, to which he is signees to furnish a wharf, yet, bound to proceed, should differ where the consignees have con- from his rights at the wharf of tracted for dispatch in discharge, the consignee. The Viola, 90 Fea. or for quick dispatch, or that the 750. in favor of the shipowner, the cesser clause is to be construed, if possible, as inapplicable to a liability with which the lien is not commensurate.1 Sec. 855. Demurrage not allowable where delay is due to shipowner's or master's fault.-A shipowner is not entitled to demurrage where the delay is due to his own default or that of the master of the vessel. This would be true where the master wrongfully refuses to receive more cargo before all of the shipment contracted for has been loaded, and delay is occasioned in settling the matter,2 or where a delay occurs. through the mistaken claim of the master that the bills of lading are incorrect.3 The consignor who hires a vessel is liable for demurrage, it is true, on account of delay in discharging caused by the refusal of the consignee to receive the cargo for reasons not connected with some default of the carrier, or for delay arising from the refusal of the consignee to receive the cargo because damaged in transit by an excepted peril, during which delay the consignee was negotiating with the owner to purchase the cargo at a reduced price. But the consignor is not liable for demurrage where the refusal of the consignee to receive the goods, and the consequent negotiations with the consignor, necessitating a delay, are due to a default of the carrier, not within the excepted perils of the bill of lading, as where there was a shortage of coal through the carrier's negligence and a consequent delay in arriving at a new agreement with the consignee for the acceptance of the short cargo at its actual weight. 1. Crossman v. Burrill, 179 U. S. 100, 21 Sup. Ct. R. 38, 45 L. Ed. 106, reversing on other points but affirming on this, Burrill v. Crossman, 91 Fed. 543, 33 C. C. A. 663 and 65 Fed. 104; Schmidt v. Keyser, 88 Fed. 799, 32 C. C. A. 121; Clink v. Radford, (1891) 1 Q. B. 625; Hansen v. Harrold (1894) 1 Q. B. 612. 2. Sewall v. Wood, 135 Fed. 12, 67 C. C. A. 580; Gould v. Grafflin, 62 Fed. 605. 3. The Assyria, 98 Fed. 316, 39 C. C. A. 97; Wood v. Sewall's Admr., 128 Fed. 141. 4. Sheridan v. Penn. Collieries Co., 128 Fed. 204. 5. Pioneer Fuel Co. v. McBrier, 84 Fed. 495, 28 C. C. A. 466, 55 U. S. App. 181. 6. Doherty v. Peal, Peacock & For any delay caused by the master's absence from the vessel, the charterer is not responsible in demurrage. And if the master refuses to deliver the goods until an admittedly extortionate charge for demurrage is paid, the consignee may abandon the goods to the vessel and recover from the vessel the value of the goods, less the lawful charges.s If the master intends to discontinue discharging his vessel until security is given for demurrage, he should give such timely notice of his intention to the charterers as will enable them to furnish the required security without delaying the progress of the work, or he should adopt a means by which prompt discharge may be made and the lien of the vessel retained. No demurrage will be allowed for delay caused by an arbitrary stoppage by the master without such notice. Under the ordinary rules of law, the owner of a vessel cannot detain the cargo aboard the vessel for non-payment of freight, and by parity of reasoning for non-payment of general average, and thereupon charge demurrage for such detention. It is true that, under some 'peculiar circumstances, it would be absurd to hold that the master was bound to discharge instanter, and, therefore, quasi demurrage for a reasonable time might be allowable under such circumstances. Such allowances, however, would not be strictly in consequence of the detention of the cargo aboard the vessel in order to secure a lien, but would arise, according to the flexible methods of the maritime law, out of the special and peculiar circumstances.10 Sec. 856. Shipowner's lien for demurrage.-There is no lien at common law for demurrage, and that right must arise, if at all, by contract.11 It is otherwise, however, by the maritime law which allows a shipowner a lien without an express contract Kerr, 54 N. Y. Supp. 1054, 25 Misc. 487. 7. Whitman v. Vanderbilt, 75 Fed. 422, 21 C. C. A. 422, 38 U. S. App. 693. 9. In re 10,082 Oak Ties, 87 Fed. 935. 10. Wellman v. Morse, 76 Fed. 573, 22 C. C. A. 318. 11. Phillips v. Rodie, 15 East, 8. The Reuben Dowd, 46 Fed. 547; Burley v. Gladstone, 3 M. & 800. S. 205; Gladstone v. Burley, 2 either for demurrage proper or for damages in the nature of demurrage.12 But whether a lien arises by express contract. or by operation of law, it may be waived by the shipowner. What constitutes such a waiver on the part of the shipowner is a question of fact. Sec. 857. Waivers of claim for demurrage.-The delivery of the cargo and collection of freight money is not a waiver of the claim for demurrage. "A contractor, by taking what he can get under his contract when he can get it, no more necessarily and as matter of law waives a claim for damages for failure to perform on time than he necessarily waives a defect of quality by accepting goods." Other circumstances, such as where other security is taken, must be present in order to show an abandonment of the claim.13 The presentation of a bill for a smaller amount,14 or the acceptance by the master of a smaller amount under protest,15 does not necessarily bar the shipowner from afterwards urging a larger claim for demurrage. Each case must be considered on its own facts. The common stipulation in a bill of lading that, if the goods are not applied for within twenty-four hours of the ship's arrival, the master or agent is to be at liberty to land the same at the risk and expense of the owner of the goods, and retain a lien for his charges on that account, gives the shipowner an alternative remedy. It does not supersede his right to have the cargo unloaded by the consignee and to hold him liable for delay; nor does it apply to the case where the goods are Meriv. 401; Gray v. Carr, L. R. 6 12. The Hyperion's Cargo, 2 Low. 93; Donaldson v. McDowell, 1 Holmes, 290; 275 Tons of Mineral Phosphates, 9 Fed. 209; Hawgood v. 1310 Tons of Coal, 21 Fed. CS1. 13. Iroquois Furnace Co. v. Elphicke, 200 Ill. 411, 65 N. E. Rep. 784, affirming 102 Ill. App. 138; Garfield & Proctor Coal Co. v. Railroad Co., 166 Mass. 119, 44 N. E. Rep. 119; Durchmann v. Dunn, 106 Fed. 950, 46 C. C. A. 62; Pioneer Fuel Co. v. McBrier, 84 Fed. 495, 28 C. C. A. 466, 55 U. S. App. 181. But see 216 Loads and 678 Barrels of Fertilizer, 88 Fed. 984. 14. Eikrem v. Coal Co., 125 Fed. 987. 15. Steamshipping Co. v. Hagar, 124 Fed. 460. |