The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 1,002
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250 FEDERAL REPORTER
the settlement came to be made, there was charged against the ship,
in addition to other items not in dispute, an item of $50 for the retainer
or attendance fee above mentioned. No objection was made to this.
There was also included the sum of $126.04, being the charge made
by'the respondents for the collection of the sum of $5,041.75 demur-
rage. The charge is based upon a percentage of 21/2 per cent., and is
identified on the settlement sheet by the words, "Commission on col-
lecting demurrage, $126.04." This item is in dispute, and, having been
retained by the respondents, this proceeding has been instituted to test,
in order to have determined their right to make the charge. The perti-
nent clause -in the charter party is as follows:
"A commission of 21 per cent. on freight, dead freight, and demurrage is
due on shipment of cargo to charterer, or his agents, vessel lost or not lost,
whose agents at port of loading are to attend to ship's business on customary
As before stated, the master directed the respondents to collect this
demurrage, and no question was raised as to the amount. The sole
question is their right to anything. The broad question referred to as
the only one involved is respondents' right to this sum of money under
a proper construction of the charter party.
We construe the clause above set forth to mean that the respondents
were engaged to look after the ship's business, and that they had the
right to receive compensation therefor, to be measured by what is cus-
tomary, and, as there is no dispute over the amount of the charge, we
hold that they were entitled to receive, and of course to retain out of
the moneys in their hands, this $126.04, for precisely the same reasons
which have induced the libelants to admit that the respondents were en-
titled to the $50 retainer or attendance fee.
[2, 3] The subsiduary questions referred to are: (1) Whether the
collection of demurrage was any part of the ship's business; and (2)
whether the master had authority to commit to the respondents the col-
lection of this demurrage. It seems to us so clear that the right answer
to these questions is an affirmative one that we do not feel justified in
lengthening this opinion by setting forth the reasons for so holding.
To meet the question before us in the form in which it is presented,
we express the opinion and view that the answer made to the libel,
if true in fact, is a good answer in law, and, as it is admitted to be true
in fact, the defense to the libel is complete.
We formally dispose of the exceptions to the answer by dismissing
The parties having stipulated that this cause be heard as on trial
upon libel, answer, and proofs, with the answer to be further admitted
as evidence of the facts therein stated, the facts are so found, and it
is ordered that the libel be dismissed, with costs to the respondent.
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/1017/: accessed November 20, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.