Page:Federal Reporter, 1st Series, Volume 2.djvu/404

SMITH V. YELLOW FINE LUMBEB. 397 �a berth at the bulk-head on the north side of that pier, and there diseharged the remainder of her cargo, through her bow ports, on to the bulk-head. This bulk-head was in the exclusive oceupancy of the charterers. �The pier at which the first discharge of cargo was made ■was a public wharf, which the charterers obtained permission to use for this purpose, their own bulk-head being then bo obstructed that it was not available for the purpose of dis- charging the vessel. The discharge was completed on Wednes- day, the seventeenth of July, at about 2 o'clock in the after- noon. The entire cargo was 210,000 feet of resawed lumber. �The libellant claims that the discharge was delayed, by the f ault of the charterers, seven days ; that she would have dis- eharged her cargo by the tenth of July, if not prevented by the charterers. �It appeared by the evidence that the custom of the port is to allow the charterer in this trade three days to find a berth for the vessel. The claimants insist that a special agree- ment was made between them and the master in this case, whereby it was agreed that the vessel should go to the pier, to which she went before there was any berth ready for her to discharge àt, the purpose being to accommodate the mas- ter and allow him to discharge his crew, which he could not do if she lay in the stream, waiting there three days before getting her berth. Such an arrangement is testified to by one of the claimants. It is denied by the master. Upon the whole testimony I am not satisfied that any such special agree- ment was made. The claimant who testifies to it is evi- dently on many points greatly at fault in his recollection, and I think he is mistaken on this point, and that the master did not, by any special agreement, waive his right to commence the diseharge and deliver the cargo immediately on coming to the pier. �A great deal of testimony bas been taken upon the ques- tion, what is the amount of lumber of the description of that of which this cargo consisted, ordinarily diseharged per day from vessels like the Florence & Lilien. The evidence is very conflicting as to the average amount thus diseharged per ����