Page:Federal Reporter, 1st Series, Volume 8.djvu/462

448 FEDERAL REPORTER. �offer uniess he could have such additional facilities for unloading as defendant had at its own dock, or uniess defendant would agree to pay the increase of cost over 10 cents per ton. These things the captain had no legal right to ask for. He seems to have supposed that he had a right to be unloaded at 10 cents per ton. �The case above cited holds that it was primarily the captain's duty under this bill of lading to unload the cargo ; and in offering him a terth, though withont special facilities for speedy and economical unloading, the defendant discharged all its legal duty npon the arrivai of the boat. This offer of a berth is sworn to by the defend- ant's witnesses, and the captain of the boat distinctly admits such offer, and his refusai to unload except upon the terms stated. After this refusai the defendant was not required to make any further tender of a berth. The defendant's notice to him was a rejection of its right of election to unload under the bill of lading; and the sub- sequent delay was by the captain's own choice, and for his own con- venience and economy. Kather than incur the inoreased expense of unloading without machinery or power, the captain chose to await his turn and enjoy the advantages of defendant's special facilities for unloading. After the notice given him he had no right to wait and take advantage of defendant's improved facilities at their expense, nor avail himself of their facilities, except upon the terms expressly stated to him, viz., that no demurrage should be paid. His claim that he would charge for demurrage, whioh the defendant told him would not be paid, could not impose upon the defendant any liability whieh they were not already under. The final unloading of the boat by the defendant in its turn cannot be construed as done under the election contained in the bill of lading, but as a subsequent favor to the cap- tain independant of the bill of lading, and imposing no liability un- der it. �The libellant should have judgment for the amount tendered, and deposited in court, with costs prior to the tender to the libellant, and with costs since the tender to the respondent. ��� �