§ 857. DELAY IN UNLADING A VESSEL. 633 special show, and the plaintiff was allowed to recover the loss suffered by missing the show. Damages were allowed for loss of profits and of time.(^) The carrier had notice that a reciprocity treaty was about to expire, and if transportation into the United States was delayed, a heavy duty must be paid. Upon delay it was held that the owner might recover the amount of the duty, though the price at the point of destination had risen more than that amount during the period of delay.() § 857. Delay in unlading a vessel.-Demurrage, in the strict sense of the term, means a sum of money due by express contract for the detention of a vessel in loading one or more days beyond the time allowed for that purpose in the charter-party. It seems that the consignee cannot be made liable for demurrage where there is in the charter-party, or bill of lading, no express agreement or stipulation in respect to detention in loading or unloading; but the freighter is liable for unnecessary detention, although no express contract is made on the subject; and compensation for such detention may be recovered under the name of demurrage.(*) It was said, however, in a case in the New York Supreme Court, that although there has been no special agreement between a shipper of goods and the master of a vessel for demurrage, yet if the vessel is improperly detained an unreasonable length of time by the freighter or consignee, the owner of the vessel may recover damages, in the nature of demurrage, for such detention. That was, however, an action against the freighter. The damages in these cases should be limited to compensation for the time the vessel was actually detained by the consignee beyond a reasonable (*) Simpson v. London & N. W. Ry. Co., 1 Q. B. D. 274. () Sprague v. West, 1 Abb. Adm. 548. time for the discharge of her cargo.(*) Damages are measured by the value of the use of the vessel.() In an action for delay in discharging the plaintiff's ship, by which the plaintiff lost profits which he would have derived from the passage money of emigrants, it was held that the defendant could not reduce the damages by showing that the plaintiff derived a benefit from this failure, from the fact that the emigrants embarked on other ships in which he was part owner. (©) §858. Agreement to furnish freight.-* An interesting question is sometimes presented where the carrier brings suit on the violation of an agreement to furnish him a stipulated quantity of freight. And here the principle applies which we have already had occasion to notice, that the party plaintiff is bound to take reasonable measures to reduce the amount of injury consequent on the defendant's default; and it is held, that the carrier must stand ready to receive any other freight that is offered, and thus, as far as is reasonably practicable, avoid throwing an unnecessary loss on the party in default. (4) Thus in New York, it has been decided, where a party contracts to load a ship with a given number of tons at a stipulated price, and fails to deliver the whole quantity, that if goods are offered by a third person to be shipped, to an amount sufficient to make up the deficiency, though at a reduced rate of compensation, but still at current prices, the owner or master is bound to receive such goods, and place to the credit of the original charterer the net earnings of the substituted cargo, after (*) Clendaniel v. Tuckerman, 17 Barb. 184; acc. Wordin v. Bemis, 32 Conn. 268; Morse v. Pesant, 2 Keyes 16. () In re Trent & Humber Co., L. R. 4 Ch. 112; The Pietro G., 39 Fed. Rep. 366. (c) Jebson v. East & W. I. D. Co., L. R. 10 C. P. 300. (d) Murrell v. Whiting, 32 Ala. 54; Utter v. Chapman, 38 Cal. 659. $858. AGREEMENT TO FURNISH FREIGHT. 635 making all reasonable deductions resulting from the circumstances of the case; and such is the English rule.' In a case that came up in the Supreme Court of the United States, from the Pennsylvania Circuit, the plaintiff's intestate agreed to deliver for the defendant at St. Louis, by a certain time, a quantity of army stores supposed to amount to 3,700 barrels, which the defendant on his part agreed to furnish on the Ohio river: the defendant to pay a certain sum per barrel, one-half to be paid at St. Louis and the other half at Cincinnati, with a memorandum "that the payment to be made at Cincinnati was to be made in the paper of the Miami Exporting Company or its equivalent." The defendant did not furnish the whole 3,700 barrels: and the plaintiff brought suit as well for the freight of the portion furnished, as damages for the non-delivery of the remainder. The notes of the Miami Company were not worth more than 66 per cent. The judge who tried the cause held— "That the plaintiff could not recover damages according to the number of tons the boat was capable of containing. The rule of law in cases where there has been a failure to furnish the stipulated freight, and there exists no charter-party, is for the jury to take all the circumstances into consideration, and to make an allowance for any freight which the master had it in his power to transport in addition to that which was furnished. If the lading should not be complete, without the default of the master, the rule is to estimate the freight by means of an average, so as to take neither the greatest possible freight nor the least; and such average is the proper measure of damages." And that as to the paper of the Miami Exporting 1 Heckscher v. McCrea, 24 Wend. 304; Shannon v. Comstock, 21 Wend. 457; Puller v. Staniforth, 11 East 232. See these cases cited and confirmed in Costigan v. Mohawk & Hudson R R. Co., 2 Denio 609. See also, the reasoning of these cases adopted in Arkansas, in an able opinion of Scott, J., as to a contract for personal services. Walworth v. Pool, 9 Ark. 394; Abbott on Shipping, part iv, ch. 1, of the carriage of goods in merchant ships, and cases there cited. ? Robinson v. Noble, 8 Peters 181, 184. Company, the defendant having failed to tender to the plaintiff's intestate that paper or its equivalent, the plaintiff was entitled to recover the amount in specie with interest. The Supreme Court reversed this judgment on the grounds that the defendant had not stipulated to furnish any precise amount of freight, and that the specie value of the notes at the time they should have been paid was the rule by which the damages should have been estimated.' (*)** The measure of damages against a charterer who refuses to furnish a cargo according to his contract is the amount the vessel would have earned at the rates specified, deducting her net earnings during the time she would have been occupied in the charter, including the lay days, or if she remained idle the amount she should have earned. (b) But where, by the terms of the charter, different articles of freight are to be paid for at different rates by weight, and the freighter is at liberty to supply them in such proportions as he may choose, the proper measure of damages in an action for not supplying cargo is the average value of freight for the voyage, calculated on the various rates of freight in the proportion of the different articles usually carried on similar voyages. (©) But where some 1 This case, though it raises some important questions, properly decides nothing as to the amount of damages; but it may be noticed, as to the latter point, that it is adverse to the decisions of the courts of New York in regard to notes payable in a specific article, it being there held, that if the specific article is not tendered the party loses his privilege, and must pay in money. (") But the general rule is in accordance with the above case. See §§ 280, 281. () Hunter v. Fry, 2 B. & Ald. 421; Smith v. McGuire, 3 H. & N. 554 ; Greenwell v. Ross, 34 Fed. Rep. 656; Utter v. Chapman, 38 Cal. 659; Bangor Furnace Co. v. Magill, 108 Ill. 656; Husten v. Richards, 44 Me. 182; Barker v. Borzone, 48 Md. 474; Dean v. Ritter, 18 Mo. 182; Heckscher v. McCrea, 24 Wend. 304; Ashburner v. Balchen, 7 N. Y. 262; Stone v. Woodruff, 28 Hun 534: Mitchell v. Cornell, 44 N. Y. Super. Ct. 401; Heilbroner v. Hancock, 33 Tex. 714. (c) Thomas v. Clarke, 2 Starkie 450. § 859. FORM OF ACTION. 637 of the enumerated articles are limited as to the amount which may be carried, and that limit has been reached, the freight of substituted articles can be calculated only on an average of the remaining goods.(*) Where goods are wrongfully taken from a vessel by the shipper before the commencement of the voyage, the ship-owner is not entitled to the stipulated freight as such, but only to an indemnity for the breach of contract. All the attendant circumstances should be laid before the jury, to enable them to determine what will be an indemnity. If the carrier has received other goods in place of those withdrawn, or if by diligence he might have done so, or if he could have abandoned the contemplated voyage, and have found other employment for his vessel, these facts may be ground for a deduction from the entire sum stipulated to be paid as freight. (") On a contract to furnish freight at a distant port to load a vessel which goes to the port, but finds none, and is compelled to return empty, the measure of damages is the contract price.(©) CARRIERS OF PASSENGERS. $859. Form of action.-The liability of a carrier of passengers is a subject which has become of great practical importance since the introduction of railroads, and the subject of the measure of damages for breach of contract of carriage of a passenger has been much discussed. The relation between carrier and passenger is more than a mere contract relation; indeed, it may exist in the absence of contract. It is clear that any person rightfully on the cars of a railway company is entitled to pro (") Cockburn v. Alexander, 6 C. B. 791. () Bailey v. Damon, 3 Gray 92. (c) Bradley v. Denton, 3 Wis. 557. |