Page:Federal Reporter, 1st Series, Volume 8.djvu/461

 M'LAUGHLIN V. ALBANY & BENSELAER IBON AND STEEL CO. iil �McLaughlin V. Albany & Ebnsbblabk Ieon and Steel Co. �[District Court, S. D. Ifell Tork. July 14, 1881.) �1. BiLii op Lading Constbued — Election. �Under the following clause in a bill of lading, " in case consignees discharge cargo, OTany part thereof, they are to be charged not toeiccielEd 10 cents par ton, and to have four full working days, after notice of arriyal at dock of con- signees of said boat, in.which to discharge cargo," and proyiding for payment of demurrage, in case of longer detention, a consignee has an option to unload the cargo or not. : j ' �2. SaMB— NOTIITCATIOII'OF AN ELECTION. �TJpon arrivai of the boat, a notification that the copcignee wpuld not unload lit except in its. regular turn, and in that, case would. pay no demurrage, is a lejection of its right to unload under the bill of lading., �3.' Same— Unloading m ToEN. • . �The final unloading of the boat by the consignee in its turn cannot be' oon* ! ,.Btrued «s done under such right of election. �4. Dsj^miBAaE. �A captain is not entitled to demurrage for time lost in waiting to avail hlm- self of a consigiiee's special f acilitiea for unloading. �In Admirai ty. �J. A. Hyland, for libellant. �Wfn. G. Holbrook, for respondent. �Bbown, D. J. au the claims in this case are agreed upon, except as to claim for demurrage. This olaim arises upoh the follo'wing iciause in the bill of lading: �' "In case consignees discharge cargo, or any part thereof, they, are to. be charged not to exceed 10 cents per ton, and to have four full worting days, after notice of arrivai at dock of consignee of said boat, in which to discharge cargo; and to pay master, for any time (exclusive of Sunday) boat is detained for discharging after the expiration of the said four days, flve dollars per day, and at the same rate for portions of days." �The decision of this court in Tuttle v. Alhany d Rensselaer Iron and Steel Co., upon a bill of lading substantially identical with this, (see opinion by Choate, D, J., May 23, 1879,) is, I think, control- ling in this case. It was then held that upon such a bill of lad- ing as this the defendant had an election, upon arrivai of the boat, ■whether it would itself unload the coal or require the master to unload, as it was otherwise his duty to do. On arrivai the captain •was in this case notiued that the defendant would not unload the boat except in its regular turn, and in that case would pay no de- murrage, and a berth was ofiered the captain where he could himself unload if he did not accept that offer. The captain declined this ��� �