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enemy when she arrived there, she anchored off the Castle of Foz, and discharged seven-eighths of her cargo. Twice she was ohliged, by stress of weather, to stand out to sea in the course of the time, but on her return the second time she was allowed to go up to Oporto, and discharge the remainder of the cargo. Under these circumstances, although the defendants contended that it was a case subject to the ordinary rule of law, and that time did not count till she reached the usual place of discharge at Oporto, the Court ruled, in accordance with the express terms of the contract, that time commenced at the Castle of Foz, subject to intermissions through stress of weather.'
Where the voyage was from London to Barcelona, with convoy, forty-one days to be allowed for waiting convoy at Portsmouth, and discharging at Barcelona, beginning to count the time twenty-four hours after the ship's arrival at Portsmouth, and from the day she was ready to deliver her cargo at Barcelona; and the vessel, in order that she might proceed with convoy, was detained twelve days at Portsmouth, fifty days at Falmouth, twelve days at Gibraltar, and then was kept fortyfour days at Barcelona; it was held, however, in an action of covenant on the charter-party, that demurrage was not recoverable, except for the time spent at Portsmouth and Barcelona exceeding forty-one days.'
In a charter-party for a voyage from England to Pernambuco, and thence to several other ports, discharging and reloading at each, as there was occasion, and finally to a port in this country, it was stipulated that " seventy running days were to be allowed for loading, discharging, and reloading the ship at the several ports, the periods to or for that purpose to commence and be computed from the several periods of the vessel being clear and ready for these purposes;" and it was held that the seventy lie-days applied to places only where the vessel would in the course of the voyage load, discharge, and reload; the word reloading being a limitation upon the word discharging; and the shipowner therefore did not recover demurrage for the surplus time of detention at London, her final port of discharge.
1 Gibbons v. De Buisson, 1 Bing. * Marshall v. De La Torre, 1 Esp. K. C. 283. 367; Connor v. Smythe, 5 Taunt. 654.
If the stipulation had been loading and discliarging only, the result might have been different.1
If the parties stipulate that the time shall count from a certain day, at a certain place, and another place is afterwards substituted, the term as to time applies to the substituted place, there being nothing inconsistent or unreasonable in such a construction of the altered contract.8
It was held that the stipulation to "allow at New York, for taking on board the cargo, and at London for delivering the same, seventy running days in whole, if not sooner discharged," meant seventy days at each place.'
A charter-party, signed with knowledge that the colliery engine, by which the vessel must be supplied with her cargo, was at the time under repair, is satisfied, in the absence of stipulation as to time, if the colliery begin to work again within a reasonable time after the execution of the charterparty, and the vessel be loaded within a reasonable time after such commencement to work.' If the parties contract without notice of existing impediments, and do not stipulate against them, the freighter is liable for unreasonable delay.5
If the delay in loading or discharging is occasioned by the fault or negligence of the plaintiffs, this is a good defence to the action, if it be well pleaded." But an action for demurrage under a charter-party, when the whole voyage has been a failure, though it be in consequence of the defendant's default, is not maintainable; it is then a claim of damages for nonperformance of the contract by charter-party.7
When phrases appear in a charter-party with a peculiar sense derived from the custom of merchants, or the usage of a particular port, or the special trade, referred to in the instrument, evidence is admissible to explain them.'
Hitherto, we have proceeded on the assumption that the in the case of a
ship is filled with the goods of a single freighter. But in the case of a general ship, with the goods of several persons on board, each liable to demurrage as though he were sole freighter, each likely to stand in the other's way in respect of the delivery, there is such a conflict of these contract rights and liabilities, with the equities of the parties arising upon the actual facts, as it is difficult to terminate by any rule of law, though this be of the utmost importance to the commerce of the country.
In the earliest case upon this point the Court were governed by a strict legal interpretation of the terms of the agreement; and at the present day this is generally received as the only rule that has the sanction of legal principle.
In this case, a vessel laden with brandy belonging to different persons arrived in the London Docks to discharge, having twenty days according to the bills of lading to do so; but as all the shippers chose to discharge into a bonded warehouse, and the number of ships before her for that purpose was great, she was detained forty-six days after the stipulated twenty. With regard to most of this time, all were equally the occasion of the delay; the conflict of rights among the freighters began with the delivery of the cargo, when the undermost, who was least accommodated in point of delivery, paid most in point of demurrage. For, Mansfield, C. J., and the rest of the Court felt themselves bound by the express contract in the bill of lading to give judgment against each for il. a-day, every day beyond the twenty that his goods were on board.1 The same rule was followed by Gibbs, C. J., in a case at Nisi Prius, where the defendant's silks, being undermost, were last in the vessel, and the plaintiff recovered il. a day for the whole period that the silks were on board after the stipulated He-days expired.2
Lord Tenterden, however, being "of opinion that if a consignee cannot get his goods, because some other person's goods prevent him, he is not liable for the delay of the vessel,"3 dissented from the rule in the previous cases, and substituted
1 Leer r. Yates, 3 Taunt. 387. See 3 Per Lord Tenterden, in Dobson v. Randall v. Lynch, 2 Camp. 362. Droop, M. & M. 441, "That is all that
5 Human v. Gandolphi, Holt, 35. I determined in Rogers v. Hunter."
another, which he followed in two cases that came before him, within a short period, at Nisi Prius.
"The true principle," he said, " seems to be this;—If the goods of the particular consignee are not ready for discharge at the time of the ship's arrival, he must have a reasonable time for removing them after they are so; if in such a case, using reasonable despatch, he cannot clear them within the stipulated period, from the ship's being ready to discharge her cargo generally, he will not be liable for demurrage till the expiration of such a reasonable time; but when it is expired, he will be liable, though the stipulated period, if computed from the time when the discharge of his own goods could have commenced, is not at an end."1
The second of the two cases to which he applied this rule was that of the ship, Mantura* with a cargo of corn from Bremen, for several consignees at London, the stipulated hedays in the bill of lading sent to the defendant being fourteen, with a demurrage of il. a day afterwards. She was ready to discharge her cargo on the 6th of January; the defendant's corn was not completely out till the 2nd of February. Another of the consignees had corn in her till the 3rd of February, and had paid for demurrage 75i., being at the rate of 51. a day, according to his bill of lading. Lord Tenterden, rejecting any defence grounded on this payment by another, said, " The question for the jury is, whether, after the expiration of the he-days, the non-removal of the defendant's goods, during the whole or any part of the time after that day, was occasioned by his own default; and they will give damages for the length of the delay so occasioned."
Mansfield, C. J., was struck with the enormous gain made by the shipowner in virtue of the rule adopted by the Court, in Leer v. Yates; Lord Tenterden appears not to have noticed the dead loss that might be inflicted on the shipowner by the rule he adopted in Rogers v. Hunter, and Dobson v. Droop. Under the former, the demurrage payable by a sole charterer is multiplied by the number of shippers for the same period of
1 Per Lord Tenterden, in Bogcrs v. ■ Dobson r. Droop, M. & If. 441. Hunter, M. & M. 63.
time; but under the latter, the vessel may be detained long beyond the stipulated period, without remedy for the owner against those who have violated their express agreement. The learned lord contrived a rule for the mutual benefit of the consignees of the cargo, forgetting that they had also bound themselves, each by the strictest engagement to the master of the ship.
There are two elements which enter into this question, namely, time and amount. With regard to the former, it is submitted that the stipulated lie-days being agreed on between the parties as the period within which the ship must be discharged, the right of the several consignees is, not to a reasonable time, but to an aliquot part of the stipulated period, proportionate to the bulk carried on board for each. But beyond this arithmetical calculation, remains the question for the jury, whether any and what part of the delay was occasioned by the default of the particular defendant, so that the shipowner, by suing the offending party, secures his full remedy without wrong to the innocent.
In respect of amount, as the stipulated rate of demurrage is usually in each bill of lading a sum regarded as adequate compensation for the ship's loss in full, justice would limit the shipowner to the recovery of one such compensation in full for the entire delay, giving such defendant a right of recovery over against the other consignees for their own proper share of the amount, thus viewing the several bills of lading as though they formed one set of the same joint and several instrument. It is submitted, that the Courts, accustomed to look to the very nature of a transaction, will find in this a severalty of contract for a joint purpose, viz., to secure that the ship shall be compensated for every day's demurrage, at the one rate stipulated from each, so making each answerable for what in reality may become the joint liability of all. If the form of the contract strictly construed excludes this view of it from the consideration of a court of common law, then this is not a tribunal competent to deal with the question, since we have it on the admission of three Chief Justices, that the strict legal interpretation works the grossest injustice to the parties.