Elder Dempster S. S. Co. v. Earn Line S. S. Co. , 168 F. 50 ( 1909 )

PER CURIAM.

The charter party contains the following clauses:

“Consignees to receive cargo at port of discharge at the rate of not less than 400 tons of coal per running- day, Sundays and legal holidays excepted. Lay days at port of discharge to commence 24 hours after steamer’s entry at custom house, and steamer to work at night, if required.”

“Steamer to pay charterers or their agents dispatch at the rate of * * * for each lay day not used at discharging port.”

The steamship arrived at Havana on December 27th at 8:30 a. m., was entered at the custom house at 10 a. m. of the same day, and discharge commenced at once. The only question in the case is whether the lay days began when the charterers commenced to discharge, December 27th, or on December 28th at 10 a. m., 24 hours after entry at the custom house.

The parties to the contract have explicitly, and without any reservation or proviso, provided that they shall begin-24 hours after entry. We find no force in the suggestion that the words “if required” refer to any other clause than that providing that the vessel shall work at night. It would seem that the express written agreement of the patties should control. The District Judge did not discuss the point, merely stating that:

“The libelant’s view seems to be correct and sustained by the authorities. The Cyprus (C. C.) 20 Fed. 144; The Katy, L. R. Prob. Div. 1895, 56; and Leary v. Talbot, 160 Fed. 914, 88 C. C. A. 96.”

In none of these cases was there an express stipulation of the character we have here. In Deary v. Talbot, which was an opinion of this court, there was a provision for “customary dispatch at port of discharge” which made applicable a rule of the Maritime Exchange. This rule was quoted in part and briefly discussed; but there was no controversy as to the beginning of the lay days, and no consideration of the effect of an express stipulation specifically providing for their beginning irrespective of any custom of the port.

In the case at bar we think the written agreement controls, and that the calculation should have been made in conformity with that provision of the contract.

The decree is reversed, with costs, and instructions to decree in conformity with this opinion.