C. G. Wyche, of Greenville, S. C. (Dean, Cothran & Wyche, of Greenville, S. C., on the brief), for plaintiffs in error.

Henry K. Osborne, Asst. U. S. Atty., of Spartanburg, S. C. (Joseph A. Tolbert, U. S. Atty., of Greenville, S. C., on the brief), for the United States.

Before WADDILL, ROSE and PARKER, Circuit Judges.

ROSE, Circuit Judge. Leslie M. Tolbert and Conrad W. Norris, the plaintiffs in error here, were defendants below, and it will make for ease of understanding so to describe them. They, together with a third person, one Wright, who was found not guilty, were tried for conspiring to demand money for not informing against named and unnamed persons for violations of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). They were convicted. Tolbert until the end of the year 1924 was a prohibition agent. Neither Norris nor Wright was in government employ, but they seem habitually or occasionally to have accompanied Tolbert upon his official investigations or raids. In the month of December of the year named, they discovered an illicit still on land belonging to one Cap tain Gibert but occupied by certain negro tenants of his. Some of these negroes were in the immediate vicinity at the time the still was found and others lived near by. None of them was actually put under arrest by Tolbert. He does not deny that early in January after he was out of government employ he received money from one James Gibert, a son of the owner of the land, and that he supposed Gibert was giving it to him to induce him not to make any charge against the negroes. He says, however, that from the first he believed that James Gibert was the real operator of the still and that the negroes were nothing more than his tools, that he did not immediately put them under arrest because he was hopeful that he could secure evidence against James Gibert, and that when some of them began, as he alleges they did, to ask him whether he would not take money to drop the case and said they could get it from Mr. Gibert, he encouraged them to believe that he would accept it in order that by so doing he might make a case of bribery or attempted bribery against Gibert. On the other hand, the government contended that Tolbert and Norris were the first to mention money and pressed the negroes to

matter to the Giberts, who after bringing federal judges, and other officials, carried it to the attention of accessible state and through the negotiations with the defendants until the money was actually paid to Tolbert in the presence of witnesses whom he did not know were about.

It is admitted that he was then immediately put under arrest.

[1] The only two assignments of error now relied upon relate first to the admission of certain testimony over the objection of the defendants and to a passage in the charge of the court. From what has already been said, the only important question of fact in controversy was as to whether the negroes and the Giberts were trying to bribe Tolbert not to do his duty, or whether he and Norris were seeking to extort money from them. Under these circumstances, we think it was quite within the discretion of the trial judge to permit the witnesses on each side so to tell their story, as to make clear the sequence of events as they knew of them. The negroes or all of them who were accessible testified as to the demands for money made upon them by the defendants. We do not see that any harm was or could have been done by allowing Albert Gibert, when on the stand, to testify that three days after the defendants found the still the negroes came to him and asked him to lend them $200 upon mortgage of some of their stock so that they could make up $300 which the defendants had demanded to drop the case. All this was followed up with testimony showing precisely what the Giberts did in consequence of this communication, all of which as has been already stated culminated in the arrest of the defendants.

[2] The only other assignment of error relied upon was to a portion of the charge of the learned judge below in which he told the jury: "The defendants have testified in this case, but it is the duty of the court to tell the jury to scrutinize their testimony with care, remembering that they are interested in the case. It is your duty when you make up your verdict to take into consideration their manner of testifying, the reasonableness or unreasonableness of their story, remembering they are vitally interested. After you have done that, you can do what you want, you may believe all of it, part of it or none of it. The question of their veracity is entirely for you but under the instructions you remember that they are the defendants in this case."

In the light of authorities too numerous and too well known for citation, no single

statement made by the learned judge, standing by itself, is open to challenge. A defendant is an interested witness and it is always the right, and, as the Supreme Court has said, it is sometimes the duty, of the judge to call the attention of the jury to that fact. The only possible criticism which can be made of what was said is that by the thrice giving of the caution, it was over emphasized. It was, however, a part of a long carefully balanced and otherwise admittedly fair charge, and if there had been any danger that the jury might have doubted their right to give to defendants' testimony whatever weight they felt it should have, it was, we think, clearly removed when as a result of discussion with counsel the judge at the very moment the jury were about to retire and as the last word he said to them told them: "It is the general law that it is the duty of the court to call attention to the fact that the defendants are interested in the result of your verdict and that you should scrutinize their testimony, but that you can believe it all, or none of it, or part of it." Affirmed.

BERWIND-WHITE COAL MINING CO. v. SOLLEVELD, VAN DER MEER & T. H. VAN HATTUM'S STOOMVAART MAATSCHAPPIJ.

(Circuit Court of Appeals, Fourth Circuit. January 18, 1926.)

No. 2412.

1. Shipping 171.

Demurrage, having commenced to run, is not suspended by occurrence of event within exceptions of loading clause.

2. Shipping 179-Demurrage, which commenced to run before fuel administrator's order of October 31, 1919, held not suspended pending obtention of permit to load.

Demurrage on vessel, which had commenced

to run before fuel administrator's order of October 31, 1919, became effective, held not suspended pending obtention of permit to load.

3. Shipping 179-Restraint in loading coal, arising from fuel administrator's order, held not to relieve charterer from liability for demurrage.

Governmental restraint, in form of order of fuel administrator, of loading of coal vessel held not to relieve charterer from liability for demurrage, where, before order became effective, charterer had ample coal available to load, and failed to do so.

Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge.

Libel in personam by Solleveld, Van Der Meer & T. H. Van Hattum's Stoomvaart Maatschappij against the Berwind-White Coal Mining Company. Decree for libelant, and libelee appeals. Affirmed.

Harrington Putnam, of New York City (Hughes, Little & Seawell, of Norfolk, Va., and Leo J. Curren, of New York City, on the brief), for appellant.

Charles R. Hickox, of New York City (Edward R. Baird, Jr., of Norfolk, Va., and Earl Appleman, of New York City, on the brief), for appellee.

Before ROSE and PARKER, Circuit Judges, and WATKINS, District Judge.

PARKER, Circuit Judge. This is an appeal from a final decree in admiralty in personam in favor of the owner of the steamship Oostdijk against the Berwind-White Coal Mining Company, the charterer of said vessel, for demurrage amounting to $109,100.70, with interest and costs. The charter party was executed October 2, 1919. By its terms the vessel was chartered to carry a bulk cargo of coal of about 3,500 tons from Norfolk or Newport News to Buenos Aires or Montevideo, one port only, merchants option for a freight of $15 per ton. The vessel arrived at Newport News on October 27, 1919, and on October 28th, at 7 a. m., custom house formalities had been fulfilled; she was in all respects ready to load cargo; and notice of readiness was served on the coal company's agent. The vessel was not loaded, and the lay days provided in the charter expired at 4:36 p. m. October 30th. The coal company admits that the vessel went on demurrage on October 30th, but claims that demurrage was suspended at midnight on October 31st because of an order of the United States Fuel Administration, which, it contends, made illegal the export of coal contemplated by the charter until a permit was secured on January 10, 1920. The vessel completed loading, and sailed from Newport News January 13th. The coal company admits its liability for demurrage amounting to $7,492.11, being for the admitted detention before October 31st at Newport News, the time in January after receiving the license to load, and for a half day's delay at Buenos Aires; and the only question in the case is whether demurrage was suspended as a result of the order of the Fuel Administration. If it was not

saved at loading port shall be added to the time allowed for discharging or vice versa."

The facts with regard to the order of the Fuel Administration and the failure of the respondent to furnish the vessel with cargo of coal were as follows: On October 31, 1919, the Fuel Administrator of the United States government issued an order, effective at midnight October 31st, by which the Director General of Railroads was instructed to make diversion of coal in the possession of the railroads, and to provide for its distribution among the various consumers of coal according to a certain preference list. This order did not prohibit the export of coal, but made it necessary to obtain the con

"3,001 tons and upward cargo capacity to be loaded at the rate of not less than 1,500 tons per running day for entire cargo.

"Sundays and legal holidays to be excepted; it being understood that the vessel be loaded within specified lay days or charterers to pay for any time lost. If Sundays and legal holidays used same to count as half lay days unless steamer be on demurrage, in which case to count as full days.

"Any detention in loading port after loading is completed, unless caused by default of ship, shall also count the same as time occupied in loading; owners to have a lien on cargo for all demurrage and expenses of loading and of discharging and charterers to pay the same.

"Any extra expense incurred by reason of working steamer on Sundays or holidays at loading port shall be for the account of the charterers and any extra expense incurred by reason of working the steamer on Sundays or holidays at port of discharge shall be for the account of the cargo. However, should steamer be on demurrage when such extra expense is incurred, whether at loading or discharging port, such extra expense to be borne by cargo.

"5. Also, that for each and every day on demurrage the party of the second part, or agents, shall pay to the party of the first part at the rate of forty-eight (48c) cents United States gold per gross registered ton per day, and for each lay day or part of lay day saved despatch money at the rate of sixteen (16c) cents United States gold, per gross registered ton per day, shall be allowed the party of the second part, or agent. For the purpose of calculating despatch or demurrage any lay days or part of lay days 11 F. (2d)-6

could be moved over the railroads from the mines to the seaboard for export. It did not interfere in any way with coal not in the possession of the railroad companies. On December 27th an order was issued by the Fuel Administration establishing the embargo and permit system for handling coal at Norfolk and Newport News for export, and thereafter permits were required before coal could be loaded for export. At no time during this period was the shipping of coal from Newport News entirely prohibited. On the contrary, between October 31st and January 13th, vessels received at that port 198,515 tons, of which 131,888 tons were for foreign shipment, and almost one-fourth of which was loaded by respondent. During the same period 411,903 tons were loaded at Norfolk; 283,595 tons being for export and 18,181 tons being loaded by respondent.

At the time the Oostdijk reported for cargo on October 28th respondent had available for loading vessels at Newport News 10,725 tons of coal; on October 29th 4,675 tons; on October 30th 1,760 tons; and on October 31st 4,895 tons. If respondent had ordered a cargo of this coal loaded on the Oostdijk, it would have been loaded at any time before midnight of October 31st. But it appears that, instead of loading the Oostdijk, respondent loaded the coal into other vessels. On October 28th respondent had at Norfolk 10,990 tons of coal; October 29th 7,986 tons;

2,684 tons. On November 1st it had at NorOctober 30th 4,236 tons; and October 31st folk 7,088 tons, whereas the tonnage of the waiting vessels there was only 4,900 tons. There were 15 vessels loaded by respondent at Newport News between October 28th and January 13th. Of these, 3 arrived ahead of the Oostdijk; one on the same day and 11 after the Oostdijk. At Norfolk during the same period 11 vessels were loaded, one of

On November 1st respondent's agent at Newport News wrote a letter to the master of the Oostdijk, advising him that the government had issued orders that no cargo vessels be loaded, and that respondent would not be responsible for any delay, detention, or demurrage on the vessel caused by the government order. On November 4th, however, respondent's attorneys wrote the Director General of Railroads, requesting that 6 vessels named, including the Oostdijk, be allowed to load and sail, stating that the Oostdijk and another were "already under demurrage," and concluding: "We feel that consideration should be given to the great hardship which the charterers of these vessels will experience and which has already begun by reason of demurrage." In a letter to the Director General under date of November 13th respondent's attorneys again referred to the Oostdijk as "under demurrage."

It is not necessary that we enter into a discussion of the questions raised with respect to the interpretation of the loading clause of the charter party or that we decide whether the exceptions specified in the vis major clause constitute exceptions to the obligations of the loading clause. The position of respondent that the running of demurrage was suspended by the alleged governmental restraint cannot be sustained, even if respondent's interpretation be accepted, for two reasons: First, because the vessel was admittedly on demurrage at the time the alleged restraint became operative, and the running of demurrage would not be suspended by the occurrence of events which would suspend the obligation to load, and, second, because the alleged restraint was not the proximate cause of the delay in loading. [1,2] As to the first proposition, the rule is that, after demurrage has commenced to run, it will not be suspended by the occurrence of an event within the exceptions of the loading clause. Washington Marine Co. v. Rainier Mill & Lumber Co. (D. C.) 198 F. 142; The Oluf (C. C.) 19 F. 459; Lindsay v. Cusimano (C. C.) 12 F. 504; James v. Brophy, 71 F. 310, 18 C. C. A. 49; Baldwin v. Sullivan, 36 N. E. 1060, 142 N. Y. 279; Ulster Brick Co. v. Murtha, 154 N. Y. S. 834, 169 App. Div. 151; Scrutton on Charter Parties and Bills of Lading (11th Ed.) 342; Poor on Charter Parties 349; Carver, Carriage by Sea (5th Ed.) 258c. In MacLachlan's Law of Merchant Shipping (5th Ed.) p. 589, it is said: "Unless the contrary be clearly stipulated, time runs continuously for the payment of

Carver on Carriage by Sea, supra, states the rule as follows: "When a ship is on demurrage, the time for which demurrage has to be paid generally runs on continuously; the exceptions to the charterer's obligation usually cease to apply."

The author last cited states that whether demurrage runs on continuously may depend on the terms of the demurrage clause, and the case of Lilly v. Stevenson, 22 Sess. Ca. (4th) 278, is cited where the demurrage clause excepted detention arising from lockouts, strikes, etc. In this case, however, there is no exception to the obligation to pay demurrage. On the contrary, it is expressly provided that the lay days shall commence when the vessel is ready to load and custom house formalities have been complied with, whether cargo is available or not available; that the charterer shall pay for all time lost; and that detention in loading port after loading is completed shall count the same as time occupied in loading, "unless caused by default of ship." We think that the attorneys for respondent correctly interpreted the situation when they wrote to the Director General of Railroads on November 4th, and again on November 13th, that the Oostdijk was "under demurrage."

[3] The other insuperable objection to the suspension of the demurrage is that the proximate cause of the delay in loading the ship was not governmental restraint, but the acts of respondent itself. When the ship gave notice of her readiness to take on cargo, there was no governmental restraint, and charterer had the coal with which to have loaded her either at Newport News or at Norfolk. This condition continued throughout the lay days and for more than a day after demurrage had commenced to run. Not until midnight of October 31st did the governmental order become effective diverting coal in possession of the railroad companies; and, even after that, and prior to the loading of the Oostdijk, respondent continued to export large quantities of coal. This coal was loaded on other vessels; 15 being loaded at Newport News and 11 at Norfolk. Twenty-one of these ships arrived in port after the Oostdijk. Some of them were loaded in preference to the Oostdijk because of the policy of the Fuel Administration in granting permits for the export of coal to Cuba and certain other countries. Why others were given preference over the Oostdijk does not appear, but certain it is that respondent will not be heard to say that the