Consolidation Coal Co. v. Shannon

Alvey, J., delivered the opinion of the Court. This was an action instituted by the appellee against the appellant, to recover for the detention of canal boats at Georgetown, and for freight. The declaration contains seven counts. The first is for money due on account stated; the second, for work done and materials furnished; the third, for demurrage of canal boats; and the fourth, fifth, sixth and seventh, are on the special contract between the parties.

The pleas are, first, never indebted as alleged; second, never promised as alleged; and third, as to the fourth, fifth, sixth and seventh special counts, a special plea, setting up various matters as a bar to the appellee’s right to recover on those counts. A bill of particulars was called for by the appellant, and filed by the appellee, whereby it appears that the claim of the latter consisted of two items; the first for what is called démurrage of two canal boats at Georgetown, D. C., from the 26th of August, 1865, to the 8th of September, 1865, at $15 per day; and the second, for balance of freight due, $94. The appellee joined issue on the first and second pleas of the appellant, and demurred to the third, being the special plea. And the demurrer being sustained by the Court below, the first question that arises on this appeal is as to the sufficiency of this special plea.

The contract, as we gather it from the very prolix and inartificially drawn pleadings in the cause, was, that the appellant rented or hired to the appellee two canal boats, “ E. II. Delano,” and “Creole,” to be run in the navigable season ■of the year 1865, on the Chesapeake and Ohio Canal, from Cumberland to Georgetown, in carrying coal for the appellant; the appellee to make the usual time, casualties and (unavoidable detentions excepted, and to comply with all the general regulations of the appellant, and to allow a deduction out of the freight earned on each cargo, of $60, as rental of each boat. These were the stipulations on the part of the appellee. The regulations of the appellant, which were incorporated into the contract, so far as they related to the ¹⁵¹ unloading of the boats at Georgetown, were that the appellant would, as far as possible, adjust the number of boats employed, to its capacity for loading, unloading and shipment of the coal from Georgetown; and as this capacity might vary at different times in the season, it reserved to itself the right at all times, by giving one trip’s notice, of cancelling one or more agreements for renting boats, so as to avoid unnecessary delay to the boats at either end of navigation.

And if the loading or unloading of any boat should, from any cause not within the control of the boatmen, be delayed unreasonably and injuriously, and the captain from any cause should be unable to avail himself of the privilege of loading outside, he should be at liberty to cancel the agreement, by giving notice on one loading, that after performing that voyage, he would do so, by returning the boat to the appellant at Cumberland, in the order agreed on. The usual rates of freight to be allowed, from which, after deducting therefrom the agreed price of hire or rent of boat, and for charges and repairs, were payable in Cumberland, on return of the boat, and the presentation of the completed bills of lading. The appellee alleged performance of the contract on his part, and that by reason of the neglect aud refusal of the appellant to unload and discharge his boats at Georgetown, within a reasonable time after their arrival there with their cargoes, he sustained damage, and that he was thereby prevented from returning the boats, with the completed bills of lading, on which he was entitled to receive, at Cumberland, the freight earned. We think it clear that the appellant’s third plea offered no sufficient bar to the appellee’s right to recover on the special counts of his declaration.

It sets up the contract as declared on, and seeks to avoid the effect of the appellant’s failure to unload and discharge the boats, within a reasonable time, by reason of the fact that its wharf at Georgetown, suddenly broke down, at which the boats of the appellee were required ¹⁵² to be unloaded, and because of the want of shipping capacity of the appellant for its coal at that point; and that its failure to unload was not .owing to its neglect to adjust the number of boats to its capacity to unload within a reasonable time. Rut it is clear this forms no ground of exoneration from liability to pay for the detention of the boats beyond a reasonable time. The appellant had control of the loading as well as the unloading; and having loaded the boats at Cumberland, it was bound to unload and discharge them at Georgetown, within a reasonable time after their arrival, unless, by some event or condition of things, contemplated by the contract, it was excused from so doing. The sudden breaking down of the wharf was not such an event as would excuse or exonerate the appellant, even if it had occurred without its fault, unless it were shewn to have been caused by the fault of the appellee.

That it occurred by any fault of his is not pretended. The wharf may have been overloaded, or have been insufficiently constructed, or been rotten, and if it broke from any such causes, the consequence should clearly not be allowed to fall on those who had no control over it. Nor does the plea allege the duration of the appellant’s incapacity to receive the coal at this particular wharf. It alleges that when the boats arrived the wharf was broken, but it does not aver that i-t remained so, and that the appellant was, during the whole period of the detention of the boats, without capacity to receive and tranship the coal.

The plea is therefore wanting in certainty, even if the breaking down of the wharf could excuse the delay in unloading the boats. The contract declared on, so far as the appellee, as special owner of the boats, undertook for freight to employ them exclusively in the service of the appellant, is analagous, in many respects, to that of a charter-party; and if, by charter-party, the freighter expressly stipulates for the payment of demurrage for any delay beyond a reasonable time for unloading the vessel, he is bound, even though the delay may not be caused by his fault, provided it is not caused by the ¹⁵³ fault of the owner or his agents. When the vessel is placed in the proper position to be unloaded, mere unforeseen impediments to the unloading, such as the crowded state of the docks, the want of information of the vessel’s arrival, or the non-receipt of the bill of lading, will not excuse payment for the detention. Abbot on Ship., Pt. 3, ch. 1; Barker vs. Hodgson, 3 M. & Sel., 267; Barret vs. Dutton, 4 Camp., 333; Hill vs. Idle, ib., 326.

And so, in a case where the charter-party was silent as to the time of loading, as the contract hero is as to the time of unloading, reasonable time, under ordinary circumstances, was implied, and a strike in the collieries, whence the freighter was to get his cargo, was held to be no excuse for delay. Adams vs. Royal Mail Co., 5 C. B., N. S., 49 2 28 L. J. C. P., 33. And although the claim of the appellee is not founded upon any express stipulation in the contract for demurrage as such, still it is of the nature of demurrage, to be recovered as damages for the unjustifiable detention of the boats, after they were taken to the place of discharge; for it was equally the duty of the appellant to unload and discharge the boats, within a reasonable time, under the present contract, as if there had been an express provision to that effect, and demurrage had been agreed to bo paid for detention beyond such time. Otherwise, such contracts as the present would be productive of the greatest hardship and injustice to the hirer of the boat.

He is required to keep it in repair, to man and equip it, to make the trips in the usual time, and is liable at any time, upon short notice, to be discharged from the further use of the boat, without any provision as to the disposition of the equipments. To say that the hirer of the boat is to bear all the loss and expense of undue detention of it by the shipper, although the former has performed his part of the contract of affreightment, is to say that the contract is without mutuality. But this third plea of the appellant is defective in another respect. A plea in bar must be a substantial and conclusive answer to the plaintiff’s right to recover on the particular ¹⁵⁴ counts to which it is pleaded.

Karthaus vs. Owings, 2 Gill & John., 431. This pica offers no answer whatever to the demand for freight, the non-payment of which is assigned in the special counts as a breach of the contract. The appellant, by its regulations, agreed to allow the current rate of freights, payable in Cumberland, on the return of the boats, and the presentation of the completed bills of lading. If the appellee did all that was incumbent on him to do, in order to effect a delivery of the cargo, and its actual delivery, and discharge of the boats, were prevented by the neglect or omission of the appellant, and hence the boats could not be returned, nor the completed bills of lading presented, as required by the regulations, the appellee is clearly entitled to the freight, as much so as if he had complied with the conditions prescribed.

In such case, however, (and especially where the special contract is still open and subsisting,) it must be recovered in the shape of damages, under a special count, wherein must be alleged the appellee’s performance and readiness to perform, and the appellants’ refusal or prevention. Bradstreet vs. Baldwin, 11 Mass., 229 ; 2 Saund. Plead. & Evid., 80; Notes to Cutter vs. Powell, 2 Smith’s Lead. Cases, 27, 40, 41, (4th Am. ed.;) Alexander vs. Hoffman, 5 W. & Sergt., 382; Phelps vs. Sheldon, 13 Pick, 50; Pitkin vs. Frink, 8 Met., 12 ;