Johnson v. Baugh & Sons Co. , 58 F. 424 ( 1893 )

BUTLER, District Judge.

Tbe respondent was consignee of- a cargo carried by libelant to-Philadelphia. Tbe suit is for balance of freight — $125. Tbe defense is payment. Tbe freight, as per charter, was $2,418.56, of which $2,293.56 were paid — $125 being retained on account of wharfage, and $97.80, for services furnished tbe vessel. Tbe latter sum is not in dispute. If tbe charter does not exempt libelant from charges for wharfage tbe retention on that account was proper. In my judgment it does exempt him. Its terms, in this respect, are: “Tbe cargoes to be brought to and taken from alongside, at charterer’s risk and expense, and, should there be any lighterage or wharfage this to be also for charterer’s account;” that is to say, the charterer will bring the merchandise to and take it from the vessel’s side. The argument intended to show that this language applies only to laoding is far from satisfactory. Tbe terms apply as distinctly to unloading as to loading. It is common language in charters, and must receive the usual interpretation. If a charterer wishes to avoid the consequences he must not use the language. The vessel was entitled to necessary wharfage unless the consignee chose to receive the cargo in lighters. The latter method would be more expensive, and he therefore ordered her into dock. He is under the same obligation for wharf-age as he is for freight. He stands in the charterer’s place respecting both. His bill of lading is drawn subject to the charter, and both instruments were delivered to him at the same time, before the cargo arrived. He has the same remedy against the charterer for repayment of the one as for the other.

The respondent further contends, however, that the libelant admitted responsibility for the wharfage, and paid it. If this is so the settlement should stand. The proofs do not, however, show it to be so. They show that the master wrote his name on the bill directly after unloading; but this signified no more than that the wharfage charged was correct in amount. Ee distinctly denied liability to pay it, at the time. The acknowledgment was doubtless necessary to a settlement between respondent and the charterer. He subsequently went in company with Wesenberg & Co.’s clerk to collect the freight, and when payment was declined (without the deduction claimed) he again denied liability and left. The clerk afterwards called, accepted a check for $2,203.5(5, receipted for the freight, and received a receipted bill for the wharfage, saying, in effect, at the same time, (and it is immaterial whether before or after the check was delivered,) that the master would not be satisfied, but would hold the respondent liable for the balance retained. He had no authority to do more than receive and receipt for the check — which was for an amount admitted to be due. The receipt for wharfage did not reach libelant. If the respondent had supposed the clerk’s authority extended further, and delivered the check in consequence, the fact would he unimportant. It was his plain duty to pay this sum, in any event. He admitted it to be clue, and could not properly retain it to coerce payment o,f Ms bill, nor for any other purpose. If misled he was not misled to his disadvantage, and could not complain, therefore, even if libelant was responsible* for the clerk’s conduct. Hut he was not misled. The libelant’s repealed denial of liability for wharfage before, and the clerk’s declaration at the time, that the master would hold him liable for ihe money retained, precluded misunderstanding.

The libel must be sustained, and a decree be entered accordingly.