The Pennsylvania Railroad Company v. Moore-Mccormack Lines, Inc.

I dissent.

The carrier is not entitled to recover demurrage because it was unable to perform its duty of unloading. Debate as to which was prior in default, the carrier or the consignee, is largely a futile exercise in logic. But if priority must be determined then surely the goods had to be unloaded by the carrier before they could be received by the consignee. Where neither party can perform then neither party can recover. (See Williston on Contracts, 3d Ed. § 875 (1962).)

I have found no other cases which involved the same situation as that presented by the case at bar. The cases cited by…