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their authority, and adding in so many words, that it is the rule of the English law also, frittered away however in this country by refinements which they appear to think untenable. The refinements have been stated. The view of the American jurists rests on this, that the advance, after being stipulated and paid, still retains the character and incidents of freight; and if they are right in making this assumption, Lord Ellenborough justifies their inference from it, that "every penny of the advance may be recovered back."1 But the English law, contrary to this assumption on their part, is that such payment of freight in advance, whether an accomplished fact, or still no more than a claim under contract, equally loses the peculiar character and incidents of freight, without acquiring the legal properties of a mere loan.' Liverpool usage it seems that by a custom of the port of Liverpool, the
as to Discount. J
person paying freight from the ports of New Orleans, Mobile, Charleston, or Savannah, whether he be the shipper, consignee, or assignee of the bill of lading, is entitled to a deduction of three months' discount from the amount, but not to credit for that or any period; and it has been held that such custom is good, and not inconsistent with a bill of lading by which the goods are deliverable on payment of a specified amount of freight."
Dkmuksaoe. In respect of a ship let to freight for a voyage, considered as What It is. a matter of strict construction, the freighter's right to use it would begin with the moment in which the ship breaks ground, and the owner's right to repossession would accrue with her arrival at the port of final destination, if nothing more appeared or were implied in the contract of affreightment.
(Amer. cd.), 408. "Iam aware," says 3 How r. Kirchner, 11 Moore, P. C.
Story, J., after stating the foreign rule, 21; Kirchner v. Venus, coram P. C.
—" I am aware that some of the English 5 Jur. N. S. 395; Hicks v. Shield,
cases look the other way, and while they 7 E. & B. 633; De Silvale t>. Kendall,
seem to admit the doctrine, fritter it 4 M. & Sel. 37 ; Manfield v. Maitlaad,
away by very nice distinctions;" per 4 Bar. k Aid. 582; Blakey v. Dixon,
Story, J., in Pitman v. Hooper, 3 Sumn. 2 B. & P. 321 ; Andrew v. Moorhouse,
50, 66. 5 Taunt. 439.
1 Per Lord Ellenborough, C. J., in 3 Brown v. Byrne, 3 E. & B. 703;
Mashiter r. Buller, 1 Camp. 84. 23 L. J. (Q. B.) 313, S. C.
There is always iu it, therefore, a stipulation, express or implied, for a fixed or reasonable time to load and to discharge in; the detention of the ship for any time beyond this, being a delay of the shipowner's subsequent traffic, is consequently a loss for which he is entitled to compensation; and such compensation is called demurrage.1
Usually the contract of affreightment fixes the number of How It Arhss. he-days, and the number of days for the ship on demurrage. But if it omit to ascertain the former, the law implies a stipulation for reasonable time considered with reference to the trade and the port the vessel is in; * and this will include such increased delay as is consequent upon discharging a cargo into a bonded warehouse at a port like London* The law
will then imply, if need be, a contract or covenant not to By Contract, cx
_ press or implied,
detain the ship longer than such reasonable or fixed time
for loading or discharging, or longer than the time fixed for demurrage, entitling the owner to reasonable damages for such detention,4 notwithstanding it is occasioned by the crowded state of the docks,' the state of the weather,' the non-production by the defendant of landing papers,7 or the non-arrival of
1 Per curiam, Burmester v. Hodgson, 2 Camp. 488; per cur. Randall v. Lynch, 2 id. 352; Rodgers v. Forresters, 2 id. 438.
'Crow v. Falk, 8 Q. B. 467; Burmester r. Hodgson, 2 Camp. 488; Rodgers v. Forresters, 2 id. 483 ; Hill t. John, 4 Camp. 327. Seats, where the parties intended to contract in writing, but one of them invalidated the instrument by alterations without the knowledge of the other, Horn v. Bensusan, 2 M. & Rob. 326.
1 Rodgers v. Forresters, 2 Camp. 483; the words in the charter-party were, "that the freighter be allowed the usual and customary time to unload at her port of discharge." "That," said Gibbs, C. J., "is what the law would imply," Burmester v. Hodgson, 2 Camp. 488.
4 Randall v. Lynch, 12 East, 179, 182; 2 Camp. 352, S. C. not S. P.; Moorsom ». Bell, 2 Camp. 616; Temperley v.
Brown, 1 Dowl. N. S. 310; see Steven-
5 Randall v. Lynch, 2 Camp, 352;
1 Barrett v. Dutton, 4 Camp. 333.
l Hill v. John, 4 Camp. 827; the defendant in this case had not obtained the necessary order from the Treasury; but it was the same thing when the plaintiff, at the defendant's request, abstained from getting the papers at the custom-house, which it was the plaintiffs duty to obtain, Furnell *. Thomas, 5 Bing. 188.
the bill of lading;1—in fact, whenever the detention is not attributable to the shipowner or his agents. "I am of opinion," said Lord Ellenborough, "that the person who hires a vessel detains her, if at the end of the stipulated time he does not restore her to the owner.'" And if the time has been lost through ignorance of the ship's arrival, yet that is no excuse for the defendant, who is bound to watch for it, and is not entitled to notice.3
On the other hand the shipowner cannot claim demurrage for any detention which is purely attributable to himself, whether it be his neglect or inability to get clearance papers ;' or the state of the weather, or damaged condition of his vessel that prevents him sailing.*
Under the bill of lading alone, if it expressly make the goods deliverable on payment of demurrage, receipt of them by an assignee is, at common law, evidence of a promise to pay such demurrage as accrued due at the port of delivery by his fault,' and this notwithstanding any denial of his liability made at the time he accepted the goods.' But he was not, therefore, answerable for demurrage incurred at the port of lading, at all events not unless there was something very express to that effect in the bill of lading.' It is, however, good evidence of his liability for demurrage incurred through his fault, if the bill of lading make the goods deliverable on payment—of demurrage as per charter-party—or, of so much per day beyond a
1 Erichsen v. Barkworth, 3 H. & N. 894, 28 L. J. (Ex.) 95; S. C. (in error) reversing the judgment of the Court below, 3 H. & N. 601; 27 L. J. (Ex.) 472.
* Per Lord Ellenborough, C. J., in Randal v. Lynch, 2 Camp. 352. In an action for detention beyond the time stipulated, the plaintiff must declare on the charter-party itself, and not for demurrage, Cropton v. Pickernell, 16 Jt & W. 829.
3 Harman v. Clarke, 4 Camp. 159; Harman v. Mant, 4 id. 181 ; Erichsen v. Barkworth, 8 H. 4 F. 894, 28 L. J. (Ex.) 95, S. C. (in error).
4 Barrett r. Dutton, 4 Camp. 333.
See Bailey v. D'Arroyave, 7 A. & E. 919.
6 Jamieson v. Laurie, 6 Bro. P. C. 474; Pringle v. Mollett, 6 M. & "W. 80.
0 Stindt v. Roberts, 5 D. & L. 460: 17 L. J. (Q. B.), 166; Wegener *. Smith, 15 C. B. 729 ; see the declaration, 24 L. J. (C. P.) 25, S. C. See the principle on which this liability rests discussed with regard to freight, Sanders v. Vanzeller (in error), 4 Q. B. 260; Kemp v. Clark, 12 Q. B. 647.
'Wegener v. Smith, yupro.
8 Smith v. Sieveking, 24 L. J. (Q. B.) 257 ; (in error) 5 E. & B. 589.
certain time,'—or, of the agreed freight and other conditions as per charter-party;' hut not if it be "paying for the said goods as per charter-party with primage and average accustomed," for that is held to refer only to freight, the rate of which is to be ascertained from the charter-party.'
The 18 & 19 Vict. c. Ill, affirming any liability of the consignee or indorsee in consequence of his receipt of the goods, transfers the rights and liabilities of the contract contained in the bill of lading to the consignee or indorsee, and vests the same in him as if the contract had been made with himself.4
But if there is nothing whatever in the bill of lading with regard to demurrage which would amount to evidence of a contract, there is nothing for the statute to operate on, and no right of action in the master against the consignee or indorsee for demurrage in consequence of his receipt of the goods thereunder.5
In reckoning time under a stipulation for demurrage, days How Computed. and running days mean the same thing, in the absence of any peculiar custom to the contrary, i.e., without excepting holidays; * but a special jury, so instructed as to the law by Lord Eldon, found that "days" at the port of London meant working days only/
The computation of time begins, there being nothing to the Time from which, contrary in the contract, with the arrival of the ship at the at Common La*usual place of discharge in the port of destination,8 which of
1 Stindt v. Roberts, 17 L. J. <Q. B.) 166 ; Jesson r. Solly, 4 Taunt. 62.
1 Wegener v. Smith, 15 C. B. 729.
1 Smith v. Sieveking, 24 L. J. (Q.B.) 257, the only demurrage due in the case had been incurred at the port of lading; but even for demurrage at the port of delivery under such a bill of lading the Court held there was no evidence of a contract on the part of the assignee although demurrage was payable by the charter-party.
1 18 & 19 Vict. c. Ill, §§ 1 and 2. So recognised per curiam, Foster v. Colby, 28 L. J. (Ex.), 81, 88; see declaration thereon, Shand r. Sanderson, 28 L. J.
course is a question of fact' that is satisfied by her entry into the docks, although she does not then get into a discharging berth;! but it is not enough if she enter the port merely * and even unload part of her cargo to lessen the draught of water in order to reach the usual place of discharge."
Where a vessel was chartered for a voyage with a cargo of coals from Newcastle to Plymouth, and "not higher than Torpoint, or New Passage, or so near thereto as she may safely get," a keel a day to be allowed the merchant for delivery, demurrage over and above such lie-days at Si. a-day; and she arrived in the Tamar, and was ordered by the freighter's agent up to Brunswick wharf, Stonehouse, a usual place of discharge for coals, and lower down than the points named in the charterparty; but it was the time of neap-tides, and she therefore grounded on her way up, and lay on a mud-bank for several days. The master applied for lighters in the meantime, but none were supplied. In the absence of any custom authorising the demand of lighters, and considering that the delay was occasioned by the circumstance of the harbour being a tidal harbour, which both parties must have known, it was held that the computation of He-days did not begin until her arrival at Brunswick wharf, to which the freighter had an option to order her to go, and therefore no claim for demurrage had accrued.' By Contract. The parties, however, will be bound by their contract, if by
that they have fixed a different starting-point for the computation of time. Whilst Portugal was partially in the occupation of the Miguelites, a vessel was chartered with a cargo for Oporto, to be discharged there, or in case of risk from the batteries at the entrance of the river, then off the castle of Foz, or some place near it; twenty-five working days to be allowed for delivery; the lie-days to commence when the ship was off the Castle of Foz, or other point where she was to be discharged, continue whilst there, cease if blown off the coast, and recommence when again anchored at her station. The batteries at the mouth of the river being in the hands of the
1 Per Parke, B., in Kellr. Anderson, Bing. 559.
10 H. & W. 498. * Brereton v. Chapman, 7 Bing. 559.
5 Brown v. Johnson, 10 M. & W. 831. 5 Parker v. Winlo, 7 E. * B. 942;
3 Ibid.; Brereton v. Chapman, 7 27 L. J. (Q. B.) 49, S. C.