anchorage outside the bar being in the open sea. The master refused to go. The court upheld him, and ruled also that evidence of a custom to anchor and discharge outside the bar was inadmissible against the express provisions of the contract.

But such an agreement means that a ship must be able to reach her loading dock without mutilation. A ship with steel masts, which cannot be temporarily lowered in order to enable her to pass under a bridge, is not required to take them down; but the cost of the lightering entailed falls on the charterer.58

CONDITIONS IMPLIED IN CHARTER PARTIES OF SEAWORTHINESS AND AGAINST

DEVIATION

85. In contracts of charter party there is an implied condition of seaworthiness and against deviation.

Although the language in the forms now in use frequently covers it, yet there are certain conditions implied in a charter party, in the absence of express provisions to the contrary. They are:

1. That the ship is seaworthy.

Charter parties usually contain a provision that the vessel is "tight, stanch, and strong, and in every way fitted for the voyage." This warranty of seaworthiness is a rigid one, and means that the vessel is actually seaworthy, not merely that her owner has done his best to make her so. It applies not only to the beginning of loading, but to the time of sailing as well, and the vessel will be liable for damages caused by unseaworthiness at starting, or by unseaworthiness developing on the voyage from prior causes not covered by exceptions, or from causes which he could repair.

53 Mencke v. Cargo of Java Sugar, 187 U. S. 248, 23 Sup. Ct. 86, 47 L. Ed. 163.

In the CALEDONIA," a vessel with a cattle cargo broke her shaft at sea, thereby greatly lengthening the voyage, and causing much loss in their quality. The court held the vessel responsible, though the breakage arose from a latent defect.

In STEEL v. STATE LINE S. S. CO.," a lower porthole was left insufficiently fastened. Sea water came through and injured the cargo. The court held that if this was the condition at sailing it was a violation of the warranty of seaworthiness. This case is specially instructive.

In Cohn v. Davidson," the vessel was seaworthy when she commenced to load, but unseaworthy when she sailed. The court held that this was a breach of the warranty.

In Worms v. Storey, 57 a vessel which was seaworthy at starting became unseaworthy during the voyage from causes excepted in the contract. But she put into port, where she could have repaired, and did not. She was held liable for a breach of the warranty.

This doctrine applies not only to structural defects, but to deficiencies of equipment, as, for instance, an insufficient supply of coal for the voyage, or insufficient ballast.58 But if the charterers examine the vessel before chartering her, and accept her, they cannot complain of such defects as they could reasonably have discovered, though they still may complain of latent defects.59

The obligation of seaworthiness and fitness for the voyage requires that the vessel is reasonably fit to carry safely

$ 85.

54 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644. 55 3 A. C. 72.

56 2 Q. B. D. 455.

57 11 Exch. 427.

58 Vortigern, [1899] P. 140; Weir v. Steamship Co., [1900] A. C. 525; McIver v. Tate Steamers, Ltd., [1903] 1 K. B. 362.

59 Waterhouse v. Rock Island Alaska Min. Co., 38 C. C. A. 281, 97 Fed. 466; Sanford & Brooks Co. v. Columbia Dredging Co., 177 Fed. 878, 101 C. C. A. 92.

and without damage the particular cargo which she undertakes to transport. 60

This applies, not only to defects which might render the voyage dangerous, but to unfitness to receive or properly care for cargo.$1

Defects in the refrigerating apparatus are a common example of this.62

2. That the vessel will commence and prosecute the voyage with reasonable diligence and without unnecessary deviation.

Charter parties cover this by a stipulation that the vessel, if not at the loading port, shall "at once sail and proceed" thereto, and shall when loaded "proceed with all practicable dispatch." If she fails to do so in the first instance, the charterer may, as decided in the cases of Lowber v. Bangs and Davison v. Von Lingen, above cited, refuse to load her, and have his action for damages. If by excepted perils she is so delayed that the commercial enterprise is frustrated, the charterer may refuse to load her, but in such case he would have no action for damages. If by deviation the charterer suffers loss, he can sue for damages.**

63

The vessel is not obligated to proceed, if, after she starts, conditions arose which would render it probable in the judgment of a prudent master or owner that she would be captured; war being imminent.65

Go Jeanie, 236 Fed. 463, 149 C. C. A. 515.

61 Church Cooperage Co. v. Pinkney, 170 Fed. 266, 95 C. C. A. 462. 62 Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65.

63 Jackson v. Insurance Co., L. R. 10 C. P. 125.

64 Scaramanga v. Stamp, 5 C. P. D. 295.

65 Kronprinzessin Cecilie, 244 U. S. 12, 37 Sup. Ct. 490, 61 L. Ed. 960.

CANCELLATION CLAUSE IN CHARTER PARTIES

86. If the vessel does not arrive by the date specified, the charterer may refuse to load, though the delay was due to excepted perils. If she does not arrive within a reasonable time, she is liable for damages, though she arrives before the canceling date.

The ship's first duty is to proceed to the loading port with reasonable diligence. To enforce this obligation, a clause called the "cancellation clause" is inserted. It provides that, if the vessel does not arrive at the loading port ready to load by a given date, all her holds being clear, the charterers may cancel. Under this the charterers may cancel, though the delay was caused by excepted perils.""

If the canceling clause is worded as above, she must not only arrive by the canceling date, but she must also be ready for cargo by that date. Her ballast and dunnage must be out, and all the spaces to which the charterer is entitled must be cleared from the effects of former cargoes and ready for use. She must be in such condition as to satisfy the underwriter's inspector and all reasonable requirements for avoiding injury to cargo."

As this clause is for the benefit of the charterer, it does not exempt the ship from her obligation to proceed to the loading port with reasonable dispatch. If she loiters by the

§ 86. 66 Smith v. Dart, 14 Q. B. D. 105.

67 Groves v. Volkart, 1 C. & E. 309; Crow v. Myers (D. C.) 41 Fed. 806; Stanton v. Richardson, 45 L. J. Ex. 78; Disney v. Furness, Withy & Co. (D. C.) 79 Fed. 810; In re 2,098 Tons of Coal, 135 Fed. 317, 67 C. C. A. 671; L. N. Dantzler Lumber Co. v. Churchill, 136 Fed. 560, 69 C. C. A. 270. But the charterer cannot claim the right to cancel on account of a failure to be ready caused by his obstructive tactics. Bonanno v. Tweedie Trading Co. (D. C.) 117 Fed. 991; Id., 130 Fed. 448, 64 C. C. A. 650.

wayside, she is responsible to the charterer in damages, though she should arrive before the canceling date."

The clause does not cancel the charter proprio vigore, but merely gives the charterer an option. He must exercise it within the time allowed, or he waives his right."

The charter party usually provides that the vessel can only be ordered to a safe port, where she can lie always afloat. This provision is common both to loading and discharging. It means safely afloat when loaded. Under it a ship is not required to lighter her cargo, or lie at a dangerous anchorage.70

LOADING UNDER CHARTER PARTIES

87. Delay beyond the time allowed entitles the ship to demurrage. Sundays and legal holidays are then

counted under the ordinary form of charter party.

The charter party provides that the charterers have a certain number of days for loading, Sundays and legal holidays excepted, and must pay demurrage at a certain rate per ton per day if vessel is longer detained. If the clause is worded in this manner, demurrage is payable for Sundays. and legal holidays.1

Sundays and holidays are excluded in counting the lay days, but included in estimating the demurrage, because in

68 March (D. C.) 25 Fed. 106: McAndrew v. Adams, 1 Bing. N. C. 29, 27 E. C. L. 297; Heller v. Pendleton (D. C.) 148 Fed. 1014. 69 W. & C. T. Jones S. S. Co. v. Barnes-Ames Co., 244 Fed. 116, 156 C. C. A. 544.

70 Gazelle, 128 U. S. 474, 9 Sup. Ct. 139, 32 L. Ed. 496; Shield v. Wilkin, 5 Exch, 304; Alhambra, 6 P. D. 68.

71 Brown v. Johnson, 10 M. & W. 331; Red "R" S. S. Co. v. North American Transport Co., 91 Fed. 168, 33 C. C. A. 432; Wallace v. Cargo of 292,000 Feet of Pine Boards (D. C.) 224 Fed. 993. But, if the excepted days are actually used, they count in the absence of a contrary agreement. Whittall v. Rathken's Shipping Co. Ltd., [1907] 1 K. B. 783; Branchelow S. S. Co. v. Lamport, [1907] 1 K. B. 787.