Western Transportation Co. v. Hawley

By the Court.

Daly, F. J.

The averment in the complaint was that the plaintiffs were ready and offered to deliver the property at the usual and ordinary place of delivery, hut that the defendants requested them to deliver it at a different place, agreeing to pay them for delivering it at that place a reasonable compensation, together with tlie costs and charges incurred by so doing.

They proved that their usual place of delivery was Pier Yo. 7, East River; that immediately upon the arrival of the • boat, they gave notice of their readiness to deliver at- that place, advising the defendants that the property would he at the risk of the owner or consignee, when landed on the wharf, and that it would he subject to lighterage, in addition to freight and charges, if taken out elsewhere than in the slip. After the delivery of this notice to the defendants, the plaintiffs received a written request to send the boat to Pier No. 3, East River, to deliver the cargo, Pier No. 3 being at the foot of Broad street, and the defendants’ place of business being at No. 102 Bi-oad street. To this written request the name of the defendants’ firm was signed as follows: Hawley & Howe, per F. S. Hall; F. S. Hall, according to the hill of lading, having, as -agent, shipped the cargo from Tonawanda by the plaintiffs’ boat to the defendants’ address. The plaintiffs accordingly sent their boat to pier Yo. 3, where the cargo was delivered to the defendants.

The plaintiffs are a corporation engaged in the transportation of merchandise between the cities of Buffalo and Yew York, by the way of the Erie Canal and the Hudson River. They proved that their usual place for the delivery of cargoes by canal boats was pier Yo." 7 East River, and the fact that the defendants’ address, 102 Broad street, was stated in the bill of lading, did not oblige the plaintiffs to depart from their usual place of delivery, and deliver this particular cargo at a pier more contiguous to the defendants’place of business. Having notified the defendants of the arrival of the boat, and of their readiness to deliver at Pier Yo. 7, they did all, in my judgment, that they were required to do under the contract. (Rowland v. Miln, 2 Hilt. 150; Ostrander v. Brown, 15 Johns. 39; Gibson v. Culver, 17 Wend. 305.

The facts that the defendants were notified that if the property were taken out elsewhere than at Pier No. 7, lighterage would he charged, and that afterwards a written request to send the boat to Pier No. 3 came in their name, signed by the person who acted as agent in shipping the property to them at Tonawartda, who had been seen in and about their office, and who assumed in thfit letter to act as their agent, and that the property was delivered to them at Pier No. 3, were sufficient, in my judgment, to warrant a finding on the part of the Jury that it was by the defendants’ request that the boat was sent to * Pier No. 3. Very slight evidence under such circumstances should suffice ; the defendants, now that parties may be witnesses in their own case, having it in their power to show .at once if the fact were otherwise, that the order sent in their name was without their knowledge or authority. And the sending of such a request after they had been notified that a charge in such a case would he made for lighterage would he sufficient to support an implied assumpsit that they would pay what was customary, if any custom existed, or if not, a reasonable compensation.

I do not think that the evidence showed that the tariff of charges for lighterage agreed upon by the transportation com panies had been so generally acquiesced in as to become estab lishcd as a custom, or that any custom existed as to the right to demand lighterage in such cases. Indeed, I do not understand how the term can be considered applicable to such a case, the ordinary signification of lighterage being the price paid for unloading ships by lighters or boats. Here there was nothing of the kind, but simply the unloading of a canal boat at one wharf or pier instead of .another. The term as used in the plain tiffs’ printed notice undoubtedly meant additional compensation beyond the freight and ordinary charges, and this the defendants, in my opinion, were obliged to pay, not in consequence of an established custom, hut from an implied understanding that they would pay what was fair and reasonable, and what would he a reasonable compensation could be determined by the jury upon the evidence.

No right to exact demurrage was shown. Demurrage is recoverable only where it has been expressly stipulated for,though, where there has been an unreasonable or improper detention of the vessel by the act of the freighter or consignee, damages may be recovered by the owner. (Evans v. Foster, 1 Barn, and Ad. 118; Robertson v. Bethune, 3 Johns. 342; Clendaniel v. Tuckerman, 17 Barb. 191.) There was no proof here as to the time when the boat was sent to Pier Eo. 3. It appeared simply that she arrived on the 19th of April; that the request to deliver at Pier No. 3 was sent upon that day, and that the cargo was not discharged until the 29th of April. Ten days elapsed from the day of her arrival until the day of her final discharge. But whether the delay was caused by the defendants or not, assuming it to have been an unreasonable length of time, does not appear. The only evidence was the service upon the defendants of a notice that they would be charged $5 a day demurrage after the 21st of April (the day of the notice,) until the discharge.

It was shown that the actual expense for towing the boat from Pier Eo. 7 to Eo. 3 would be $3 ; but the plaintiffs’ claim upon the implied agreement for extra compensation would not be limited to the amount actually paid out by them for towing the vessel from one pier to another. It was in evidence that it was necessary in the transportation business for the various companies generally to have some place for receiving property brought by them to the city by canal. It was shown that the plaintiffs had a pier for that purpose, and it is inferable from that fact that it was more convenient for them and facilitated their business to deliver their cargoes there rather than elsewhere. The transportation companies had agreed among themselves as to a tariff of prices which had no reference whatever to the distance to which the vessel might be moved about the city, but was demanded if the property was taken out elsewhere than in the slip where cargoes were ordinarily delivered. This was the express stipulation in the printed notice served by the plaintiffs before they received the order to send the boat to pier Eo. 3, and under this agreement, they were entitled, “in addition to freight and charges,” to an extra compensation, the amount of which, under the circumstances, could be fixed only by the jury.

A new trial, therefore, should be granted.

Brady, J.—I concur.