212. bridge then being under construction by the consignee. The libellant arrived at St. Augustine on June 21, and on June 22, 1923, procured a receipt for the four lighters of lumber from the consignee. The lighters were said to contain 250,000 feet of creosoted lumber. No bill of lading was issued. A letter of instruction was given to the libellant, said letter being as follows: In accordance with agreement dated May 15th, you will please take in tow four lighters of creosoted lumber now tied up at our dock and proceed to St. Augustine, Fla., and deliver same to W. G. Hoggson Corporation at the Bridge Site which is now being erected for the Fountain of Youth Hotel Company. When you reach Fernandina, Florida, will thank you to fill in the dates on the two enclosed telegrams, sending one to the Georgia-Florida Pine Co., Jacksonville, Fla., and one to ourselves. You will please collect balance of towing, $950.00 from the Georgia-Florida Pine Co., and mail us your bill direct for lighter hire, which will be taken care of from this office. When you have delivered all lighters to the Hoggson Corporation, please notify us in writing, giving us the date that each lighter was delivered.” "Yours very truly, T.J.T./B. THE SAVANNAH CREOSOTING CO., INC., Libellant claims demurrage on the four lighters at the rate of $5.00 per day each, from June 25, 1923, (the date to which the shippers had paid lighter hire) to April 15, 1924; $300.00 for towing said lighters loaded with lumber from St. Augustine to Jacksonville, Florida; watchman's fees; repairs to one lighter sunk, and salvage of a portion of the lumber upon the sunken lighter. The answer of claimant, the Hoggson Corporation, admits the arrival of the tug boat and four lighters loaded with lumber, on June 21, 1923, and the reported arrival to claimant, but denies that libellant was ready or willing to deliver the lumber to consignee; denies that any notice was given claimant that demurrage would be claimed for delay after June 25 in unloading the lighters; alleges its willingness to receive said lumber and unload same, but that libellant refused to allow said unloading to be done; alleges that subsequently request 1925 A. M. C. was made to libellant to permit the unloading and checking of said lumber, but libellant refused to allow same until certain charges were paid and has since continued such refusal. The answer then proceeds to set out the circumstances under which it required the lighters to be removed from the bridge site; that the same was done by some person unknown to it. An amendment was made to the answer putting in issue the jurisdiction to proceed in rem. Testimony was taken on the issues and the same submitted for a final decree. The testimony is quite voluminous. The following facts appear to be proven. The claimant placed its order for the lumber with the Georgia-Florida Pine Company, for the lumber to be delivered F. O. B. lighters at St. Augustine; that the Georgia-Florida Pine Company in fulfilling the order procured the Savannah Creosoting Company to manufacture and send the lumber to the Hoggson Corporation. The Savannah Company paid the lighter hire up to June 25, and the towage service and demurrage on the tow boat was paid by the Georgia-Florida Pine Company, about July 5, 1923, and the tow boat returned to Jacksonville leaving the lighters loaded with lumber tied up alongside the bridge. Soon after the arrival of the lighters at St. Augustine, a representative of the Georgia-Florida Pine Company appeared and demanded the invoice price of the lumber and insisted the lumber should not be unloaded off the lighters until the amount was paid. This representative and the libellant thereupon put a watchman on the lighters, the evident purpose of whose presence was to prevent the unloading of the lumber, until the invoice was paid. The libellant's communications and demands for demurrage, and transactions subsequent to procuring a receipt for the four lighters, were with the Creosote Company and the Georgia-Florida Pine Company. Upon the approach of the hurricane season the claimant communicated to the Georgia-Florida Pine Company a desire that the lighters should be moved from the bridge structure to avoid injury to the structure, and thereupon in October the Pine Company had the libellant tow the four lighters to Chaseville, a few miles down the St. Johns River from Jacksonville; while tied there one of the lighters sunk and at the request of the representative of the Pine Company and an insurance agent, (the insurance on the cargo having been taken out in the name of the Pine Company) the libellant performed the service of saving some of the lumber 212. which had gone adrift from the sunken lighter, and loading it and the cargo that remained on the sunken lighter on another lighter. The sunken lighter was then taken to a ship yard and repaired. During the time the four lighters were tied up to the bridge structure the claimant proposed to the Pine Company to unload the lighters upon the bridge structure, the Pine Company attaching a lien for the invoice price, but nothing came of this. The only reason assigned by the Pine Company for its refusal to allow the claimant to unload the lighters was that reports had been heard reflecting upon the financial standing of the claimant. At the first interview of the representative of the Pine Company, about June 22, the claimant's representative promised not to disturb the cargo of the lighters until the invoice price for same was paid. As I view this case the first question for me to decide is,-Is a case for demurrage made out by the testimony? Demurrage is essentially a claim for damage for failure of the consignee to accept delivery of the goods. The Kittegaun, Banque Russo-Asiatique London vs. U. S. S. B., E. F. Corp., 281 Fed. 886. aff'd. 1923 A. M. C. 387, 286 Fed. 918. In the instant case, from the testimony, it appears that the claimant was at all times, from the arrival of the cargo, ready, willing and able to unload the lumber from the lighters, and was prevented from so doing by the joint act of the libellant and the Pine Company. As I read the authorities, demurrage is allowed against a consignee. of a cargo where he by his acts in refusing delivery caused the delay. In this case the delay was not caused by the refusal of the consignee to accept the cargo. It was apparently willing to receive this lumber and this willingness was indicated by the receipt given the libellant before the arrival on the scene of the representative of the Pine Company, at which time no delay had occured. Had the libellant not joined the representative of the Georgia-Florida Pine Company in his purpose of not having the lumber unloaded until the invoice was paid, his position would have been improved, but joining in this purpose, which seems to me unreasonable, and assisting and abetting the Pine Company as he did, he thereby deprives himself of the right now to claim demurrage for the delay in receipt by the consignee of the cargo. There would have been no danger of the Pine Company losing the amount due for the lumber, had it been unloaded and checked to ascertain the quantity, because the Statutes of the State 1925 A. M. C. of Florida give a lien upon the goods for the purchase money due. Again, it does not seem reasonable to demand the purchase money before there was afforded the consignee an opportunity to check the lumber and thus ascertain the quantity, for it must be borne in mind that there was no bill of lading issued. Again, in The Lake Fairlee, U. S. vs. Sugarland Industries, 1924 A. M. C. 504, 296 Fed. 913, (cert. den. 265 U. S. 587), the Circuit Court of Appeals for this (5th) Circuit, speaking through Judge Walker, has this to say: "The appellant was under a duty to minimize the damage resulting from the appellee's failure to provide for receiving the cargo at the rate it could and would have been discharged from the ship, but for the failure or default of the appellees. The appellant is not entitled to the amount of the demurrage claimed, if it was entirely practicable for it to obviate any delay beyond the lay days, by incurring and charging against the appellee an expense substantially less than the amount of demurrage claimed for the avoidable delay." In that case it was the ship's duty to discharge the cargo, and in this case it was the consignee's, but that can make no difference in the application of the principle. In that case it was the default of the consignee which caused the delay, and in this case, as above pointed out, it was the default of the Pine Company, acquiesced in and abetted by the libellant, and they caused the delay from June 22, 1923, up to and including April 15, 1924. I am of opinion therefore that libellant has not proven himself entitled to demurrage. The other claims propounded in the libel are in no better case. The towing of the lighters from St. Augustine to Chaseville was made necessary by the delay caused through no fault of claimant. The same may be said about the sinking of the lighter at Chaseville; the repairs made necessary by the action of the toredo worm while tied up to the bridge structure; the saving of the lumber from the sunken lighter; and the services of the watchman placed by the joint act of libellant and the representative of the Pine Company. There are other questions raised in the pleadings and briefs of Proctors, but having reached the conclusion I have, from the study of the testimony, I make no decision upon them. A decree will be entered dismissing the libel at the cost of the libellant. SALLAH ET AL., Plaintiffs-Appellants, v8. NIPPON YUSEN KAISHA AND GREAT NORTHERN New York Supreme Court, Appellate Term, First Dept., December, 1924. Under B/L from Japan to New York overland from Seattle "by express train, if possible," plaintiffs were in any view entitled to express service if it were possible that such be furnished, and defendants must at least show impossibility. It was therefore error to dismiss at the conclusion of plaintiff's case which proved that goods were forwarded by freight. 1924 A. M. C. 534. Reversed. SIEGEL & CORN (FREDERICK VAGNINI, of Counsel), for Appellants. Burlingham, VEEDER, MASTEN & FEAREY (WILLIAM J. DEAN, of Counsel), for Respondent Nippon Yusen Kaisha. WHITE & CASE (WALTER A. MULVIHILL, of Counsel), for Respondent Great Northern Railway Company. Appeal by plaintiff from a judgment dismissing the complaint at the close of the plaintiff's case, after trial before the Court without a jury. Reversed. PER CURIAM: We are of opinion that the plaintiffs' recovery, if any, must be based upon common law principles, the interstate shipment in question having been shipped from a non-adjacent foreign country. We are further of the opinion that the plaintiffs' proof established prima facie evidence of unreasonable delay on the part of the defendants in making delivery, and that they were called upon to offer evidence tending to excuse such delay. In any view of the contract of shipment the plaintiffs were entitled to express service if it were possible that such be furnished, and it was incumbent upon the defendants at least to show that compliance with this provision was not possible. The question of whether the defendant shipping company may be held upon the theory that it failed in its duty by selecting a connecting carrier that was unable to furnish express service as well as the question of the negligence of the defendant railroad company, and the |