charterer of the ship, actual damages in excess of the amount of demurrage at the tariff rate. Libelant contends that it should be permitted to recover its full actual damage. This will be denied. Demurrage is the detention damage fixed by the tariff, and common carriers by water are forbidden to receive a greater compensation than the rates specified in the tariff, 46 U.S.C.A. § 844.
There is a further dispute between the parties with respect to 6,199 pounds of "sweepings': sugar which becomes contaminated by being spilled on the ship and the dock out of damaged bags. It is swept up, along with the dirt it may fall in, and put into other bags, distinctively marked. It has value to sugar refiners. Libelant seeks to recover the freight on the 6,199 pounds of sweepings, and respondent claims a deduction for that amount of sugar 'short-landed', i.e., loaded on libelant's ship in Puerto Rico but not delivered to respondent in Philadelphia.
The sweepings figure was based on a schedule created under some agreement between buyers and sellers of sugar.
While an agreement on sweepings may exist between buyers and sellers of sugar, the evidence in this record fails to establish that it does. Further, there is no evidence whatever in the record that the agreement, if it does exist, is in any way binding on libelant, a carrier. The question of the validity of an agreement affecting the amount of freight payable, in the light of 46 U.S.C.A. § 844, need not be considered.
Libelant is entitled, therefore, to the freight for the 6,199 pounds of sweepings, and respondent is not entitled to any deduction for shortage in respect of these sweepings. The stevedoring allowance due respondent is to be determined without any deduction based on an allowance for sweepings.
Respondent claims wharfage
at the rate of $ 91.38 per day for the 54 days the ship lay at the pier. Libelant contends that it is liable for wharfage only during the period of actual unloading, but is relieved from payment of wharfage for the balance of the period (in substance, the period of the strike). The tariff provides:
'The Owner shall pay wharfage (dockage) on the Vessel at a rate not exceeding the established rate. The Vessel shall leave discharging berth as soon as possible, after completing discharge of cargo, weather and tide permitting.'
The tariff contains no provision relieving the owner from payment of wharfage in the event of a strike, or, in fact, in the event of delay resulting from whatever cause. As we have seen, the tariff provides explicitly for the effect of a strike on demurrage. The omission to make similar provision as to wharfage appears thus to have been intentional. For this reason respondent is entitled to wharfage for the actual time the Arizpa lay at its pier.
Respondent consignee makes the further contention that there was a duty on libelant, who knew of the likelihood of a strike and that the ship might be detained in consequence, to have diverted the ship, before it docked, 'to some other discharging point.' The tariff provides that:
'The Consignee shall designate, and the Vessel shall discharge at discharging berth * * *'
Respondent, having insisted that the Arizpa proceed to respondent's Philadelphia pier despite libelant's request on March 19, 1955, that the ship proceed to some other port, is not entitled to be relieved of liability for libelant's failure to divert.
Libelant is directed to submit an order for judgment in conformity with this opinion and the findings of fact and conclusions of law which are filed herewith.