Part IV. some of the goods which were undermost could not, though demanded, be taken out till the upper tiers were cleared. The Court of Common Pleas, notwithstanding, decided that each of these consignees was liable, on a general count for demurrage, to pay the 41. per day for the forty-six days. MANSFIELD, C. J., said, "I was struck with the argument that it was not the fault of the defendant, but the fault of the plaintiff himself that these goods could not be got out until other goods which lay above them were delivered. But it is not, in truth, the fault either of the plaintiff or the defendant that the goods could not be taken out. There can only be so many goods on the top of the vessel as the proper stowage of the goods will allow-therefore, all the others must be at the bottom; and as this is a general ship, and the goods do not all belong to the same consignee, the goods of some of the consignees must be undermost. If this argument would avail, therefore, that the captain was not entitled to demurrage for the goods which were not uppermost, it would restrain the contract for demurrage to the few persons whose goods were at the top; but that construction would be contrary to the positive contract, for it is impossible to get out of the words of this bill of lading." A general ship (a) took some silks on board to carry from Rotterdam to London on defendant's account, and upon the margin of the bill of lading, which he excepted, was written, "the consignee to clear the goods in fourteen running days after her arrival in port, or to pay 41. per diem for demurrage." The defendant applied for and was ready to receive his goods within the running days, but, being undermost in the vessel, the delivery thereof could not be made until some days afterwards. "The consignee," said GIBBS, C. J., "by taking to the goods, contracts with the owners of the vessel to perform the terms upon which they have undertaken to convey and deliver them. Those terms are expressed in the bill of lading, and the defendant, by claiming and receiving the silks under the bill of lading, has acceded to those terms. Each consignee undertakes to clear away his goods in a certain time; and, although by the default of others he is prevented from so doing, he is liable to pay demurrage by the terms of the contract, unless the delay be occasioned by the fault of the captain or his crew." ["The merchant," according to the language of Lord ELLENBOROUGH (b), "is the adventurer who chalks out the voyage, and is to furnish at all events the subject matter out of which the freight is to accrue." And upon this principle it was held, that a merchant who had covenanted to furnish a cargo at Gibraltar within a limited time, but was prevented from doing so by a prohibition of intercourse with that shore on account of an infectious disease, was answerable in damages to the owner. This subject will be more fully noticed in a following chapter (c). But, on the other hand, where, by the terms of the contract, the merchant was to be allowed the usual and customary] (a) Harman v. Gandolphi, Holt, N. P. 35. See Rogers v. Hunter, 2 C. & P. 601; Dobson v. Droop, 4 C. & P. 112. Barker v. Hodgson, 3 M. & S. 267. On the Dissolution of Contracts, post, Part IV., Chap. 12. [time to unload the vessel at her port of discharge, it was held that he Chap. 3. was not answerable for a delay of this sort, although great part of it was owing to his election to warehouse and bond the goods, that appearing to be the usual practice with regard to cargoes of the like description (d). The same law was laid down with respect to a consignee of goods sent in a general ship without any stipulation on this subject in the bill of lading (e).] In conformity with these decisions, it has been determined, that delays in loading a vessel beyond her running days, occasioned by frost (f), or by the prohibition of a foreign government to export the stipulated cargo (g), or by Custom house regulation or restraints (h), or by unlawful seizure of part of the cargo by Custom-house officers (i), or by alterations in the ship necessary to receive the cargo, the shipment of which was to be at the shipper's expense, are misfortunes and casualties which fall upon the freighter (k). He might have protected himself by express stipulation. He might have limited his engagement to pay demurrage to cases of wilful or negligent detention. For delays occasioned by the wrongful act of others, he has his remedy against them; but unless they be caused by the shipowner himself, the freighter or consignee must pay demurrage according to his contract (7). It is no answer to this claim for the consignee to allege that he did not receive notice of the arrival of the ship (m) within the time stipulated by the bill of lading for the discharge of the cargo, for it is his duty to inquire for and watch the ship's arrival; or that he did not (d) Rogers v. Forrester, 2 Campb. 483. (e) Burmester v. Hodgson, 2 Campb. 488; post, 252. (f) Barrett v. Dutton, 4 Campb. 333; otherwise if ship detained by frost after she is fully loaded. Pringle v. Mollett, 6 M. & W. 80; Kearon v. Pearson, 7 H. & N. 386; Bastifell v. Lloyd, 1 H. & C. 388; Tiis v. Byers, 45 L. J. Q. B. 511; L. R. 1 Q. B. D. 244; see Hudson v. Ede, 36 L. J. Q. B. 273; 37 L. J. Q. B. 166; L. R. 2 Q. B. 566; 3 Q. B. 412, where it was held that certain delay was within a provision in the charter-party as "to detention by ice," and that the loss must fall on the shipowner and not upon the merchant; and see Fenwick v. Schmalz, 37 L. J. C. P. 78, where it was held in an action against a charterer for not loading, that a snow storm was not "an accident" within the following_excep tion, "except in cases of riots, strikes, or any other accidents beyond his control, which may prevent or delay her loading a full and complete cargo of coals." (g) Blight v. Page, 3 B. & P. 295. (h) Hill v. Idle, 4 Campb. 137. (i) Bessey v. Evans, 4 Campb. 131. (k) Barker v. Hodgson, 3 M. & S. 270. Where a charter-party is silent as to the time within which the cargo is to be unloaded at the port of destination, the law implies that the merchant and the shipowner (1) Beech v. Balleras, 29 L. J. Q. B. (m) Harman v. Clarke, 4 Campb. 159; Harman v. Mant, 4 Campb. 234; see Stan ton v. Austin, 41 L. J. C. P. 218, where in an action for not loading pursuant to charter-party, a plea which stated in substance that the defendants were ready to load, but that by reason of want of notice of ship's arrival, and that she was ready to receive cargo, the defendants were prevented loading the vessel, was held good. Part IV. receive the bill of lading in time, and that the master insisted on its being produced, or on an indemnity, for the master had a right so to insist for his own protection (a); but if the delay was occasioned by the refusal of the owner to allow the ship to be unloaded (b), or by his neglect, or even inability, from unavoidable accident, to obtain the necessary clearances for sailing (which it his duty to obtain), then he, and not the freighter, is the cause of the delay, and must bear the loss resulting from it (c), unless indeed he omitted to apply for them at the request of the freighter or consignee (d). Clause as to cesser of liability. The owner has no claim of this sort for a delay occasioned by an hostile occupation of the destined port, although, after such delay, it may be found expedient entirely to abandon the voyage, and thereby the whole employment of the ship becomes unprofitable (e). Where by a charter-party seventy days were to be allowed a ship, which was to touch and take in goods at several ports, for loading, discharging, and reloading, it was held that the word reloading limited the discharge to a time before reloading, and that therefore the limit of days did not apply to the time taken up in unloading the cargo at the end of the voyage (ƒ). But when a charter-party for a voyage from Genoa, where the ship was, to Monte Video, and thence to Callao and the Chincha Islands, and back to a port of the U. K., after specifying certain running and lay days, contained this proviso, "should the vessel be unnecessarily detained at any other period of the voyage, such detention to be paid for by the party delinquent to the party observant at a specified rate of demurrage"-it was held that the words "other period of the voyage" did not include Genoa, and that a detention there was not within that clause (g). By charter-party it was agreed that the plaintiff's ship should go to a port, and there "load in regular turn" a cargo from the defendants. On her arrival, the defendants made default in supplying cargo, whereby she lost one turn. Wind afterwards came on to blow, and the harbour-master therefore would not allow the ship to take up her loading berth for three days more:-Held, that the default of the defendants was the proximate cause of the detention during those three days, and that the plaintiff was entitled to damages as demurrage in respect of them (h). As to a charterer not being liable for demurrage after he has loaded the cargo, where there is a clause in the charter-party for the cesser of his liability under the same as soon as the cargo is on board, see ante, p. 178. (a) Jesson v. Solly, 4 Taunt. 52; sce ante p. 181. (b) Benson v. Blunt, 1 Gale & D. 449; See Erichsen v. Barkworth, 1 H. & N. 894; 28 L. J. Ex. 95; Taylor v. Clay, 9 Q. B. 713. (c) Barrett v. Dutton, 4 Campb. 333; and see Kearon v. Pearson, 7 H. & N. 386; 31 L. J. Ex. 1, as to a stipulation for the loading of the cargo with the usual despatch. (d) Furnell v. Thomas, 5 Bing. 188. 131. (g) Valente v. Gibbs, 6 C. B. (N. s.) 270. See Crow v. Falk, 8 Q. B. 467; Bruce v. Nicolopulo, 24 L. J. Ex. 321; Barker v. Mc Andrew, 34 L. J. C. P. 191. (h) Jones v. Adamson, 45 L. J. Q. B. &c., 64; L. R. 1 Ex. D. 60. 4. How Demurrage is regulated by Usage, in the absence of For the eventual hardship or unprofitableness of the engagement into which the merchant or freighter has entered he has himself alone to blame; the law in all these cases does but enforce the performance of his own contract. He might have bound himself by terms less stringent, and capable of a more liberal interpretation in his favour; or, by avoiding all express stipulations on the subject, he might have allowed the law, in case of dispute, to determine, with reference to the course of the particular trade, or the usages of the particular port, what would, under all the circumstances of the case, be reasonable and just. Thus, where in a charter-party it was covenanted that the freighter, the defendant, should unload the ship within the usual and accustomed time, it appeared that the ship Margaret entered the London Docks with her homeward cargo on the 25th of August, and was reported the following day; on the 31st of the same month, her cargo, consisting of wines, was bonded by the defendant, and he was ready to have received it if it could have been unloaded, but on account of the crowded state of the London Docks at this time the ship could not get a berth till the 20th of October, and was not fully discharged till the 26th of that month. If the duties had been immediately paid upon the wines, they might have been landed in a much shorter time; but the superintendent of the London Docks said he had never, since the bonding system was introduced, known a cargo of wines brought by a ship so large as the Margaret landed and delivered, but that such cagoes had always been bonded. It was contended that the duties ought to have been immediately paid-that the freighter was liable for the detention of the ship beyond the time when she might have been discharged; and the case of Randall v. Lynch was cited as an authority for that position. But Lord ELLENBOROUGH said, "In that case a specific period of forty days had been fixed by the charter-party for loading and unloading the cargo. The stipulation in the present case is, that the freighter shall be allowed the usual and customary time to unload the ship in her port of discharge. The question therefore is, What is the usual and customary time for a ship to unload a cargo of wines in the port of London? The answer seems to be, when the ship gets a birth by rotation, and the wines can be discharged into the bonded warehouses. The wines might have been landed sooner by an immediate payment of the duties; but since the bonding system was introduced this has ceased to be the usual and customary mode of unloading a cargo" (i). (i) Rogers v. Forrester, 2 Campb. 483, see ante, p. 189. Chap. 3. Part IV. Thus, again, in the case of Burmester v. Hodson (a), the defendant was the consignee of a cargo of brandy from Charente to London, by the ship Athalia, of which the plaintiff was the master. The bill of lading contained no stipulation for demurrage, or for unloading the brandy in any specific time. The ship entered the London Docks on the 19th of August, 1809, but as the docks were extremely crowded, and the brandy was to be bonded, she was not able to begin to unload until the 11th of October, and did not discharge the whole of her cargo until the 19th of the same month, making a period of sixty-three days from the time she entered. Evidence was given of an invariable practice to bond cargoes, and that when the docks were not over-crowded, twenty or twenty-three days were a sufficient space of time for unloading. The plaintiff insisted that he was entitled to a compensation in the nature of demurrage, from the time the ship might have been unloaded till she was completely discharged. But MANSFIELD, C. J., said, "This case cannot be distinguished from Rogers v. Forrester. Here, the law could only raise an implied promise to do what was there stipulated for by an express covenantnamely, to discharge the ship in the usual and customary time for unloading such a cargo. That has been rightly held to be the time within which a vessel can be unloaded in her turn into the bonded warehouses. Such time has not been exceeded by the defendant. If the brandies were to be bonded, they could not be unloaded sooner; and the defendant seems to have been as anxious to receive as the plaintiff was to deliver them." 5. When Demurrage Ceases. [The payment of demurrage, stipulated to be made while a ship is waiting for convoy, ceases as soon as the convoy is ready to depart; and such payment, stipulated to be made while a ship is waiting to receive a cargo, ceases when the ship is fully laden, and the necessary clearances are obtained, although the ship may in either case happen. to be further detained by adverse winds or tempestuous weather (b); and if the ship has once set sail and departed, but is afterwards driven back into port, the claim of demurrage is not thereby revived (c). By a charter-party, the owner covenanted that the ship should take a cargo at a port, and proceed with the first convoy that should sail for England fourteen working days after she was ready to load; and the merchant covenanted to load and despatch her within fourteen days after notice that she was ready to load, with liberty, however, to detain her 15 running days after the expiration of the 14,] (a) 2 Campb. 488; Ford v. Cotesworth, ante, 249. (b) Lannoy v. Werry, 2 Bro. P. C. 60. See further as to waiting for convoys, Marshall v. De la Torre, 1 Esp. 367. (c) Jamieson v. Laurie, 6 Bro. P. C. p. 472, 2nd ed. |