Page:Federal Reporter, 1st Series, Volume 9.djvu/225

 

31& PEDEEAL EEPORTER. �existence of such an agreement. It was also contended that the claim- ants were entitled to eight days in whioh to remove the property, by the usage of the port, but the testimony fails to prove the existence of such a usage. Eeliance was also placed upon the statutes of the United States (Eev. St. § 2880) as giving the claimants eight days within which to remove this cargo. But the statute has no relation •whatever to the duty devolving upon the buyer of this property under the circumstances stated. A!U that the testimony shows is an understanding between the claimants and the master that, so far as relates to the time of the removal of the property, the vessel should be. considered as having just arrived and entered at the cuatom-house. Upon such facts, the only obligation on the part of the buyers of the phosphates was to perform their implied promise to remove the property froni the vessel within a reasonable time, and the right of the libellant to demurrage depends upon the ques- tion whether the property in question was reinoved within a reason- able time from the thirteenth of September, that being the day on ■which the marshal delivered the property to the claimants. No detention of the vesselprior to that day can be imptited tO the claim- ants, for prior to that day they had no right to remove the property. �Upon the question of what was a reasonable time within which to remove this property, I am of the opinion that with reascnable cx- «^rtion all could have been discharged by the 16th; This ieaves four days to be paid for. Thirty dollars a day is reasonable demurrage, and the amount of the demurrage is therefore $120. �The next question is whether a maritime lien attached to this mer- chandise for the amount of the, demurrage in question. Here the peculiarity of the case is that the acts complained of which giye rise to the claim for demurrage are not the acts of a shipper or of a con- signee of the merchandise. ihe claimants ' were no parties to the contract of affreightment under which the property had been trans- ported, — if such a contract there was, — but simply purchasers of the property as it lay in the vessel. Moreover, they purchased from the marshal, and must be held to have received the merchandise from the marshal free and clear of any existing encumbrance or charge. �The question presented by this state of facts appears, therefore, at first sight, to be different from the question that arises when the aets complained of are those of a shipper of property, or a consignee of property, under the ordinary contract of affreightment. And yet, in principle, there is no difference ; for demurrage is only a reward to the vessel in compensation of the earnings she ia improperly ��� �