A prior agreement between the shipper and vessel owner as to the rate of demurrage will not be changed by the delivery of a form of bill of lading stipulating for a different rate, such form having been used by mistake and without intention to change the original agreement.45 And if a stipulated sum is agreed on as demurrage for each day's delay in delivering cargo to a vessel, but the charter party is silent as to delay in loading, the rate of demurrage stipulated for in the case of delivery will furnish prima facie evidence of the loss occasioned by an unexcused delay of the charterer in loading.46 Sec. 833. Same subject-Effect of charterer's stipulation to load or unload within a fixed time. It is universally held that a stipulation in a contract prescribing a time within which an act or thing is to be done or performed by one of the parties thereto, made in unqualified terms (time being of its essence) is absolute in its obligation and cannot be excused or avoided by the party bound by reason of any obstacle or impediment to its performance, no matter how far beyond the control of such party the existence of such obstacle or impediment may be. If a charterer binds himself absolutely to load or unload within a certain time, he takes the risk of all unforeseen circumstances. He bears the risk of delay arising from the crowded state of the place at which the ship is to load or discharge, or bad weather preventing access to the vessel. And it is immaterial that the ship-owner, also, is prevented from doing his part of the work within the agreed time, unless he is in fault.47 45. Burns v. Burns, 125 Fed. 432; affirmed, 131 Fed. 238, 65 C. C. A. 224. 46. Baldwin v. Timber Co., 65 Hun, 625, 20 N. Y. Supp. 496. 47. Hagar v. Elmslie, 107 Fed. 511, 46 C. C. A. 446, affirming Elmslie v. Hagar, 101 Fed. 840; Empire Transp. Co. v. Coal & Iron Co., 77 Fed. 919, 40 U. S. App. 157, 23 C. C. A. 564, 35 L. R. A. 623, affirming 70 Fed. 268; Gabler v. McChesney, 70 N. Y. Supp. 195, Where there is an absolute contract of the charterer to pay de But if, by the terms of the charter party, it is only for “detention by default of" the charterers or their agent that they agree to pay the amount of demurrage specified in the charter, a detention which is caused, not by any act of the ship-owners or of the charterers, but wholly by the actual firing of guns from an enemy's ship of war upon the forts in the harbor, directly affecting the vessel and making the discharge dangerous and impossible, cannot be considered as caused by "default" of the charterers. 48 Clauses in a bill of lading providing for special demurrage in exceptional cases should be strictly construed, and being in the nature of a penalty ought not to be imposed unless the case comes clearly within the purpose which those clauses were intended to accomplish.49 murrage for delay and detention the control of the consignees" within the meaning of the clause v. Ed. 106, reversing Burrill Crossman, 91 Fed. 543, 33 C. C. A. 663 and 65 Fed. 104; Burrill v. Crossman, 130 Fed. 763, 65 C. C. A. 189, reversing 124 Fed. 838 and 111 Fed. 192. A stipulation for definite lay S. 100, 21 Sup. Ct. R. 38, 45 L. days makes the charterer responsible for delay caused by a fire at the dock which destroys the machinery depended on for loading. Huron Barge Co. v. Turney, 71 Fed. 972; s. c. 79 Fed. 109. A delay caused by the vessel waiting her turn to be berthed is not "a cause or accident beyond 49. Continental Coal Co. ย. Bowne, 115 Fed. 945, 53 C. C. A. 427. Sec. 834. Same subject-When delay is caused by default of the ship-owner.-Even though the time for the work is definitely fixed, a charterer or consignee is not liable for delay caused by the default of the ship-owner. Thus where a delay is caused through no failure of the consignee to provide sufficient carts, but by the cargo being delivered from one only of the two hatches of a ship, and not from both hatches, the ship is not entitled to demurrage.50 So if the ship-owner refuses or neglects to hire a sufficient number of men to do that part of the work, devolving upon him, within the stipulated time, the ship cannot claim demurrage for consequent delay beyond the stipulated time.51 And where the stevedoring in discharging a vessel is done by an employe of the ship's agent, the charterer is not responsible for his delays.52 Sec. 835. Same subject-When delay is caused by observance of stipulation inserted for ship-owner's benefit. If delay is caused through the strict observance of a stipulation inserted in the charter party or bill of lading entirely for the ship-owner's benefit, the ship cannot claim demurrage. Thus when a ship-owner stipulates that his vessel shall be loaded only when she can be kept afloat, and from the nature of the harbor this can be done only when certain high tides occur, time lost, after the arrival of the ship, in waiting for the necessary tides and depth of water must be lost to the shipowner.53 Sec. 836. Same subject-Delays due to customs officers.In general, it is the duty of the consignee to procure a permit for the discharge of the cargo from customs officers, and it does not follow that he is excused in all cases because one customs officer omits to deliver the permit to another. But where a delay is caused by the carelessness of a customs officer in mislaying the permit, and the permit is secured by the char 50. Ewan v. Tredegar Co., 88 Michigan, 68 C. C. A. 372, 135 Fed. 703. Fed. 734. 51. Hansen v. Donaldson, 1 Sess. Cas. (4th) 1066. 53. Carlton Steamship Co. ย. Castle Mail Packets Co., Limited, 52. 2,000 Tons of Coal ex The L. R. (1898) App. Cas. 486, 67 L. terer very soon after the discharge has been stopped for want of it, the charterer is not liable for such delay.5+ Sec. 837. Same subject-What are counted as lay days— "Days"-"Working Days"-"Weather Working Days."—If the word "days" alone is used with reference to lay days or days for loading a ship, all the running or successive days are counted, including Sundays and holidays.55 When Sundays only are excepted from running days, the charterers are not exempt from demurrage for holidays and days on which laborers will not work.5 56 The term "working days" means, in maritime affairs, running or calendar days on which the law permits work to be done. It excludes Sundays and legal holidays, but not stormy days. It does not include time taken off by the baymen in attending the funeral of one of their number, or the cessation of work on Good Friday.57 If the parties wish further to except days when the weather permits work, they use the expression "weather working days," or "with customary dispatch" or some other expression J. Q. B. 795, affirming (1897) 2 Q. where there is no evidence that B. 485, 66 L. J. Q. B. 819. 54. 2,000 Tons of Coal ex The Michigan, 68 C. C. A. 372, 135 Fed. 734. 55. Hughes v. Hoskins Lumber Co., 136 Fed. 435; Baldwin บ. Sullivan Timber Co., 65 Hun, 625, 20 N. Y. Supp. 496. Days on which those loading the vessel refused to work owing to storms, and days when the labor organizations withdrew their members to attend a funeral and for the celebration of Labor Day, should not be excepted from the days allowed for loading. Hager man v. Norton, 105 Fed. 996, 46 C. C. A. 1. Half holidays not made obligatcry by statute are not to be excluded in computing demurrage the stevedores refused to work because of the state law on that subject and a custom of the port to that effect is not proved by the proper quantity and quality of evidence. Steamshipping Co. v. Hagar, 124 Fed. 460; Uren v. Hagar, 95 Fed. 493. 56. James v. Brophy, 71 Fed. 310, 18 C. C. A. 49, 33 U. S. App. 330. 57. Hughes v. Hoskins Lumber Co., 136 Fed. 435; Sorensen v. Keyser, 52 Fed. 163, 2 C. C. A. 650, 2 U. S. App. 297, reversing 48 Fed. 117; s. c. 51 Fed. 30, 2 C. C. A. 92; Wood v. Keyser, 84 Fed. 688; affirmed in 87 Fed. 1007, 59 U. S. App. 202, 31 C. C. A. 358. which clearly indicates their intention to recognize that days. of inclemency from winds and storms are also excepted.58 Sec. 838. Same subject-Parts of days.-If a vessel commences to load or discharge in the middle of the day, a day's time is generally computed at the end of that day and not at the expiration of twenty-four hours from the time of commencement.59 But if from all the terms of the charter party or bill of lading the true construction seems to be that fractions of a day are to be taken into account, that construction will be enforced and demurrage will begin to run on the expiration of the fraction of a day.60 When the agreement is for "weather working days," and a part only of a weather-working day is in fact used by the charterers on account of the weather, the question often arises whether that part is to be counted against them as a whole day or as part of a day, or whether it is to be excluded from the calculation altogether. "The most equitable view is to charge half a day against the charterers where substantial work is done, though not amounting to half a day, and to charge a full day where substantially a full day's work, though not amounting to twelve hours, is done; no smaller fraction than half a day should, however, be taken into consideration, and if the time worked is quite insignificant, it should not be charged at all.''61 Sec. 839. Same subject-Agreements for "quick dispatch,' "customary quick dispatch" and "customary dispatch."-An agreement for "quick dispatch" is, in effect, an agreement for a fixed time in loading or discharging and over-rides any customary mode of doing the work.62 Under such an agree 58. The India, 49 Fed. 76, 1 C. C. A. 174, 2 U. S. App. 83; Hughes t. Hoskins Lumber Co., 136 Fed. 435. 59. The Katy, (1895) P. 56. 60. Yeoman v. The King, (1904) 2 K. B. 429, 73 L. J. K. B. 904. 61. Branckelow Steamship Co. v. Lamport & Holt, (1897) 1 Q. B. 570, 66 L. J. Q. B. 382. In Weir v. Northwestern Commercial Co., 134 Fed. 991, the court held that under the circumstances of that case, 24 hours constituted a "weather working" day at Nome, Alaska. 62. Mott v. Frost, 47 Fed. 82. |