Davis v. Wallace et al.

directed to discharge by the consignees. By the terms of the charter-party the schooner was entitled to quick despatch at the port of discharge; and the libellant contends that the proposition of the respondent is in direct conflict with the stipulation of the charter-party. Demurrage is the sum fixed by the contract of affreightment as a remuneration to the ship-owner for the detention of the ship beyond the lay-days allowed for loading or unloading the vessel. Mau. & Pol. Sh. 176; Pars. Mar. Law, 261. Stipulations are usually inserted in charter-parties and bills of lading, to prevent disputes and define the rights of parties in case of unforeseen delays in loading or unloading, specifying that a certain number of days called running or working days are allowed for that purpose, and it is frequently stipulated that the charterer or freighter may delay the ship for a further specified time at an agreed price per day for such over-time. Sometimes the contract is, that the vessel shall be loaded and discharged in the usual time, or within a reasonable time after her arrival in port, or that the freighter shall be allowed the usual and customary time to load or unload at the port of loading or discharge. In other cases the contract of affreightment is without any such definite condition; but even in those cases the owner, if the ship is improperly detained, may frequently have a special claim to damage in the nature of demurrage. The settled rule is, where the contract of affreightment expressly stipulates that a given number of days shall be allowed for the discharge of the cargo, that such a limitation is an express stipulation that the vessel shall in no event be detained longer for that purpose, and that if so detained, it shall be considered as the delay of the freighter, even where it is not occasioned by his fault, but was inevitable. Field v. Chase, Hill & Denis, 51. Where the contract is, that the ship shall be unladen within a certain number of days, it is no defence to an action for demurrage that the overdelay was occasioned by the crowded state of the docks, or by port regulations, or government restraints. Detention of the vessel for loading or discharging longer than the time allowed by the contract entitles the owner to the stipulated demurrage, although it was impossible to complete the work within that time

Davis v. Wallace et al.

by natural causes. Randall v. Lynch, 2 Camp. 352; Barret v. Dutton, 4 Camp. 233; Hill v. Idle, 4 Camp. 327; Furnell v. Thomas, 5 Bing. 188. Much reliance is placed by the respondents upon the case of Rodgers v. Forresters, 2 Camp. 483; and also upon the case of Burmester v. Hodgson, 2 Camp. 488; but it is quite clear that they are not applicable to the present case, unless it be held that the words " quick despatch in discharging" have no meaning whatsoever. Stipulations, express or implied, that the ship shall not be detained beyond the period or periods specified in the contract of affreightment are not controlled by the usage of the port where the vessel is to load or discharge; and if the freighter detains the vessel beyond the time specified, he is liable to an action on the contract adapted to the nature of the instrument and the practice of the jurisdiction where the suit is brought. Ab. Sh. 303; Clendaniel v. Tuckerman, 17 Barb. 184. Just prior to the arrival of the plaintiff's vessel an unusual number of other vessels arrived at the defendant's wharf for the purpose of discharging their cargoes. They had been held back for a time by a storm, but being first at the wharf they were entitled to priority in turn. The consignee had but one wharf, and he offered to prove the circumstances at the trial, as an excuse for the delay, but the judge excluded the evidence, and the Court of Appeals held that it should have been admitted. Α direct admission, however, is made in the opinion that the defendant would be liable, if he was in fault, in suffering such an accumulation of craft, laden with cargo for himself, for the same wharf, at the same time. But the court also ruled that where there is an express contract, the parties are held strictly to its terms, and that no excuse, as a general rule, is available in such cases for delay; considering that the whole delay in that case did not exceed two days, it may be that the decision is correct, upon the ground that the discharge, in view of the circumstances, was within a reasonable time. Conceding the correctness of that decision, still it cannot affect the case at bar, as by the express terms of the charter-party the owners of the vessel were entitled to quick despatch in discharging, and it cannot be admitted that thirteen days' delay was not a violation of that provision. Par

Davis v. Wallace et al.

ties may contract as they please, but their contracts must be construed and executed as they are made. They may contract that the ship shall wait any number of days before commencing to load or discharge, and that the freighter shall have any number of lay-days, with or without charge, or none at all, or that the ship shall load or discharge in turn; but any such special arrangement, enlarging the time for loading or discharging, is matter of special contract. Even the covenant to load with usual despatch excludes every delay on the part of the shipper beyond "the ordinary time for bringing the cargo to the place of landing and loading." Kearon v. Pearson et al., 7 H. & N. 386. Viewed in the most favorable light for the respondents, it must be understood that the stipulation for quick despatch in discharging excludes all delay save the time employed in unloading and delivering the cargo, except what is occasioned by natural causes beyond the control of the party contracting. Such exception was denied in the case of Kearon v. Pearson et al.; and it is clear that it cannot be admitted where the covenant is only for usual despatch; it cannot be admitted in cases like the present. The power to designate the place of discharge belongs to the consignee, but he is bound to select a place where the ship will encounter no delay beyond the time necessary for the unloading of the vessel where the delivery and reception of the cargo is required by law. The Eddy, 5 Wall. 490; The Bird of Paradise, 5 Wall. 545. Delay beyond that, if occasioned by natural cause over which the defendant has no control, may, perhaps, be excused in a case where there is no express contract as to time, but that question does not arise in this case, and no decided opinion is expressed upon the subject. Enough has already been remarked to show that, in the view of the court, the second question presented by the respondents does not arise in the case, for the reason that the master appears to have acquiesced in the delay without complaint or notice to the respondents that he should hold them responsible. When told that the coal was not sold, and requested to call on the following day, if he did not intend to acquiesce in the consequent delay, he ought to have said so, or in some manner to have signified to the consignees

Mandell v. Pierce.

that he did not waive the right of the ship-owner. Nothing appears in the record to warrant the conclusion that the delay at that time was claimed by the consignees as matter of right; but in view of the circumstances it is much more reasonable to infer that it was but a request, and as such was voluntarily acceded to by the master. Regarded as a claim of right, very strong doubts are entertained whether it could be sustained in any case, and it is quite clear that such a usage, if proved, can never avail as a defence where it comes in conflict with the terms of the contract. Usage is never held to make a contract, and proof of it will never be admitted to contradict a contract expressed in clear and unambiguous terms. The libellant is entitled to recover for four days' unnecessary delay of the schooner in discharging at the port of destination.

The decree of the District Court is reversed, and let a decree be entered for the libellant.

THOMAS MANDELL, Executor, v. EBENEZER W. PIERCE.

On May 1, 1866, a tax was assessed upon the income of the plaintiff's testatrix, from the 1st of January, 1865, to July 2, 1865, the day of the testatrix's decease. The amount of the tax was paid under pro'est, by the plaintiff, as executor, to prevent the distraint of property, and brought suit to recover the amount. Held, that the tax was legally assessed against, and collectable from, the plaintiff as executor.

The liability in this case accrued in the lifetime of the recipient of the income, at whose death it passes over to the executor or administrator, as a debt against the estate.

When the recipient dies within the year, the return must be made by the executor or administrator.

The tax is imposed upon the income of the property of the decedent, and the liability is not discharged because the decease occurs before the time appointed by law for making the return upon which the tax is predicated.

ASSUMPSIT to recover the amount of an internal-revenue tax, paid under protest. Facts agreed.

Sylvia Ann Howland, of New Bedford, single woman, died July 2, 1865, and the plaintiff, also of New Bedford, was during said year duly appointed executor of her last will, and was at the time of the suit such executor. The plaintiff, as such execu

Mandell v. Pierce.

tor, was required by the assistant assessor of internal revenue for the First Collection District of Massachusetts, in which New Bedford is situate, to make return of the income received by said Sylvia Ann Howland, during that portion of the year 1865, which said Sylvia Ann was in life, and did make such return under written protest indorsed thereon, not conceding any liability to taxation thereon, and protesting against the same. On May 1, 1866, the assistant assessor assessed a tax on the income of said Sylvia Ann Howland from and including the 1st of January, 1865, up to July 2, 1865, the day of her decease, of $4,512.36, and the plaintiff appealed to the assessor, who sustained and affirmed the taxation, and the plaintiff subsequently appealed to the commissioner of internal revenue, who affirmed the taxation and dismissed the appeal. The tax was transmitted and certified to the collector of interual revenue for said district for collection, and the defendant having been appointed collector of internal revenue for said district, passed into his hands, as such collector, for collection; and the defendant, under color of his office, as such collector, through his deputy, demanded of the plaintiff, as such executor, the payment of said tax; the plaintiff declined to pay the same, whereupon the defendant, as collector as aforesaid, through his deputy, threatened to collect said tax by distraint of property, and was proceeding so to collect it by force, when the plaintiff, in order to avoid a distraint of property, on the 6th of September, 1866, paid the defendant said tax of $4,512.36, under written protest.

T. D. Elliot and T. M. Stetson, for plaintiff.

The income-tax law does not authorize the tax in this case. Sylvia Howland died in no default as to taxation, and before any return could be required of her or income tax could be assessed upon her. No debt or liability of hers passed to the plaintiff, and the estate was then in his hands subject only to the laws taxing estates. Cooke et al., Petitioners, &c., 15 Pick. 237. And there is no statute providing such tax as the defendant has collected.

The case constantly arises under the State law of Massachusetts, and it was never supposed that an income duty could be assessed unless the party was in life at the date, May 1.