Page:Federal Reporter, 1st Series, Volume 2.djvu/406

 SMITH ». TELLOW PINH LDMBEB. 899 �the average time taken to discharge ail like cargoes in this port, as the claimants seem to have assumed. It means "dis- patch" in accordance with, or consistently with, aU known and well-established usages or customs of the port. Thus the customs proved as established in this port, in this particular trade, of allowing the consignee three days to procure a berth, and of allowing him to rempve the vessel to a second place of discharge, as to a part of the cargo, are, by the expression "customary dispatch," adopted and made part of the con- tract. �But the first of these customs does not excuse the con- signee from receiving the cargo immediately when a berth is procured, nor can it be said that the average period of ail dis- charges is a "customary" period. There are no elements of "custom" about such an average period of time. A "custom" is a practice which is universal, or almost universal, in the trade in question. It may limit the length of a day's work, determine what days are holidays, and similar matters, but the right of the vessel to discharge and to bave the consignee to receive the cargo continuously, subject to such customs, is a right established by the law merchant, and one not to be abridged by custom unless the custom is clearly made out ; and the average time which masters, stevedores and con- signees take to discharge vessels laden with a certain de- scription of cargo cannot be said to establish any custom as to time of discharge. So far from being the "customary" time, it may well be that no one vessel ever did discharge in that particular period of time. �The expression, "customary dispateh," as affecting the time of discharge, seems to me only to limit the master's right to discharge continuously in this, that he cannot claim the right to discharge dùring hours of a day, or during days, which by the established usage of the trade in the port are not work- ing hours or days ; nor can he claim the right to discharge so rapidly during any day that the amount to be delivered on any one day is more than the consignee can, according to the customs of the port, vi^ith the use of ordinary facilities, be required to receive and take away. No usage or custom is ����