Page:Federal Reporter, 1st Series, Volume 10.djvu/315

 LINDSAY V. CDSEVUNO. 3.03 �be disposed of. This occasioneddelay. Is stich delay included in the terms "customary dispatch?" �The obligations of the owners and charterers, when the charter- party is silent as to time to be occupied indischarging, are reciprocal; each shalluse "reasonable" dispatch. This obligation is here quali- fied by changing "reasonable" into "customary" dispatoh. This enlarges the source of delay, and makes it include all those usages at the port of delivery which the charterers cannot control, such as the working hours, the order in which vessels must come up to the wharf, the observance of holidays, the allowance of three days to obtain a berth, provided one cannot be sooner obtained; but here their force stops, They cannot be held to include any delay which is pnrely volnntary on the part of the charterers, although such delay is cus- tomary in the fruit trade. The phrase must be confined inits mean- ing to excuse the parties for want of opportunity by reason of the customs prevailing at the port. This is ihe substance of the distinc- tion in Kearon v. Pearson, Hurlstone & Norman, 386. There the question was as to the meaning of the words "usual dispatch," as applied to loading. Martin, B., before whom the case was tried, (whose ruling was af&rmed by all the judges,) says, page 387, they. meant "that the vessel should be loaded with the usual dispatch of persons who have a cargo ready at Liverpool for loading." Here, these words, "customary dispatoh," meant the usual dispatch of per- sons who are ready to receive a cargo, and exclude all customs in accordance with which these charterers might claim the right to de- cline to receive, simply because it was more advantageous to post- pone. If this distinction is observed, all the cases cited are reconcil- able. See Smith v. Yellow Fine Lumber, 2 Fed. Eep. 396 ; Nichais v. Tremlett, 1 Spr. 361; ma SUeper v.Puig, 17 Blatchf. 36. �During the rain, and for a reasonable time after it ceased, the time should net be counted. According to the construction of the charter- party, which must control, the customs of the port could not qualify the obligation of the charterers and consignees to obtain a berth where the vessel could have customary dispatch. Smith v. Yellow Fine Lumber, 2Fed. Eep. 400. That is, the custom of discharging cargoes of fruit at or near a particular wharf was not a custom which in the nature of things could exempt them from obtaining a berth when one could be had, where the stipulations of the charter-party could be carried out and the delivery take place with dispatch, limited or qual- ified by the customs prevailing at the port of delivery which created barriers not under the control of the party who here urges them. ��� �