warehouse owner and the shipowner concerning the priority of their charges, then these charges shall have priority according to the terms of the agreement: and the surplus, if any, must be paid to the owner of the goods. of By sect. 76 of the Merchant Shipping Act Amendment Act, 1862, whenever goods are placed in the custody of a wharf or warehouse owner under the authority of the statute, the wharf or warehouse owner is entitled to rent in respect of them; he is also entitled from time to time, at the expense the goods owner, to do all such reasonable acts as in the judgment of the wharf or warehouse owner are necessary for the proper custody and preservation of the goods, and he is entitled to a lien on the goods for the rent and expenses. By sect. 77 it is provided, that nothing in the act is to compel any wharf or warehouse owner to take charge of any goods which he would not be liable to take charge of if the statute had not passed; nor is he bound to see to the validity of any lien claimed by any shipowner under the act. And, in sect. 78 is contained a general provision, that nothing in the act contained is to take away or abridge any powers given by local acts to harbour trusts, bodies corporate and persons, by which they are enabled to expedite the discharge of ships or the landing or delivery of goods. Nor are the rights or remedies given by any local act to any shipowner or wharf or warehouse owner to be taken away or abridged. DEMURRAGE is the sum which is fixed by the contract of car- DEMURRage. riage as a remuneration to the shipowner for the detention of the ship beyond the number of days allowed for loading or unloading. The amount is usually calculated at so much per day; and the number of days during which the ship may be detained on demurrage is also generally limited by the contract (a). When the ship is detained by the freighter beyond (a) 1 Beawes Lex Merc. 197; Smith Merc. Law, 271. The delay itself is also sometimes called demurrage. M.P. Χ Construction of contract. General rules ment. the days of demurrage, a claim of the same nature arises for damages for the subsequent detention, and the rate which is agreed upon for the demurrage becomes primâ facie, but not necessarily, the measure of this compensation (b). The contract for demurrage is to be construed like any other mercantile contract, and the parties may introduce into it special stipulations. The following general rules, however, are applicable to it where they are not interfered with by its special terms. Demurrage ceases on the day of sailing from the port of as to its pay- loading; and if the ship afterwards puts back, owing to contrary winds, and is detained in port by frost or bad weather, the freighter is not liable (c). Nor is he liable if the ship, after she is loaded, is detained by frost, or by any act of the shipowner; but he is liable for any detention for the purpose of loading, although the loading may have been rendered impossible by the state of the weather (d). Where the ship is to be unloaded in the usual and customary time (and if no particular time is mentioned this is the contract which the law implies), the freighter is not liable to pay for a detention caused merely by the crowded state of the docks (e). Where, however, the freighters are bound by the charter-party to load a cargo in the customary manner, no time being mentioned, this means that they will load according to the usage of the port, and within a reasonable time, without reference to unforeseen casualties; and if the loading is delayed beyond a reasonable time, the freighters are not excused by reason of the delay having arisen from difficulties over which they have no control (f). And where the parties enter into a positive contract that the goods shall be taken out of the ship within a certain number of days from her arrival, this contract (b) Randall v. Lynch, 12 East, 179; Moorsom v. Bell, 2 Camp. 616. The declaration must be special if the claim is for damages for the subsequent detention. Horn v. Bensusan, 9 C. & P. 709. See as to demurrage when the delivery of the outward cargo is prevented, and the ship returns with it to the port of loading, Christy v. Row, 1 Taunt. 300. (c) Jamieson v. Laurie, 6 Bro. Parl. C. 474. (d) Barrett v. Dutton, 4 Camp. 333; Pringle v. Mollett, 6 M. & W. 80; Furnell v. Thomas, 5 Bing. 188; see also Kearon v. Pearson, 7 H. & N. 386; and ante, p. 244. (e) Rodgers v. Forresters, 2 Camp. 483; Burmester v. Hodgson, ib. 488. (f) Adams v. The Royal Mail Steam Pucket Company, 5 C. B., N. S. 492; and see Harris v. Dreesman, 23 L. J., Exch. 210. must be construed strictly, and demurrage becomes payable for any delay beyond the period fixed upon, which is not owing to the default of the shipowner; even although it may be caused by an accident or impediment over which the freighter has no control; as, for instance, by the necessity for the removal of Delays caused superincumbent goods (g), by the crowded state of the docks (h), bent goods, &c. by superincumor by custom house or government restraints or regulations (¿) ; and this has been held to be so even although no notice of the ship's arrival has been given to the consignees, or to the indorsees of the bill of lading (k). For, although this rule may appear to operate harshly as against the consignees, they might have protected themselves by express stipulation. Where the delay in unloading is occasioned by an improper interruption by the shipowner, the above rule does not apply, since in such a case the detention is the act of the owner and not of the freighter; but it is not every interference, for however short a time, that will put an end to the obligation of the charterer (1). It has been held, that in computing the number of lay days Mode of comSundays are to be included, unless working days are expressly puting days. mentioned, or there be any custom to the contrary (m). In one case the jury was satisfied that such a custom existed in London (n). The days of demurrage are to be reckoned, not from the arrival in port, but from the arrival at the ordinary place of discharge, according to the usage of the port (o). This does not, however, mean the actual place of unloading, for the days begin to run if the ship is in the dock where the discharge is (g) Harman v. Gandolphi, Holt, N. P. C. 35; Leer v. Yates, 3 Taunt. 387; Taylor v. Clay, 9 Q. B. 713; and see the judgment of Parke, B., in Kell v. Anderson, 10 M. & W. 502; the judgments in the Exchequer Chamber in Ericksen v. Barkworth, 3 H. & N. 894, and the same case in the Court below, ib. 601. It is apprehended that the rule laid down in the text is the true one, and that the cases cited above are correctly decided, although Lord Tenterden, in Dobson v. Droop, 4 C. & P. 112, ruled differently. It appears to be in all cases a question of construction of the contract as appearing on the charterparty and bill of lading. Possibly in the last-mentioned case (as in Rogers v. Hunter, 2 C. & P. 601), the word "detention" may have been used; from which it may have been inferred that demurrage was to be payable only so (h) Randall v. Lynch, 2 Camp. 352. (k) Harman v. Clarke, 4 Camp. 159; (1) Benson v. Blunt, 1 Q. B. 870. (n) Cochran v. Retberg, 3 Esp. 121. Parties liable to pay it. to take place, although, owing to the crowded state of the dock, she cannot reach a berth for the purpose of being discharged (p). Where a ship was to sail with convoy, and demurrage was to be paid for every day beyond a certain number of days that she should "wait for convoy," this was construed to mean that it was to be paid until the convoy was ready to sail, and not that the freighter was to be discharged on the arrival of the convoy at the port where the ship lay (q). It will be seen from these cases that the liability depends upon every occasion upon the terms of the particular contract, and that few general rules can be laid down on this subject. The contract to pay demurrage, which is contained in the charter-party, is made between the shipowners and the freighters (r). But where, as is often the case, the bill of lading mentions the demurrage, a consignee who accepts the goods under it may, and generally does, become liable for it on a new contract, to be implied from his acceptance of the goods under these circumstances (s). The implied promise to pay demurrage arising from the receipt of goods under a bill of lading making them deliverable on the payment of demurrage, may even arise although the receiver of the goods states at the time that he does not intend to pay it (t). Where a cargo was received by an indorsee of a bill of lading, which made the goods deliverable" against payment of the agreed freight and other conditions, as per charter-party," it was held that the jury might infer from these circumstances a contract to pay the demurrage stipulated for by the charter-party (u). But it will be observed that, in this case, the wording of the bill of lading was pecu (p) Brown v. Johnson, 10 M. & W. 331. The lay days do not, however, begin to run where the ship having entered a tidal harbour is prevented for some time, by the ordinary course of the tides, from getting to the place of discharge; Parker v. Winlow, 7 E. & B. 942; and Bastifell v. Lloyd, 1 H. & C. 388. (q) Launoy v. Werry, 4 Bro. Parl. C. 630. (r) Where a charterer contracted as agent, and stipulated that his liability should cease when the cargo was shipped, it was held that he was not liable for demurrage at the port of discharge; Oglesby v. Yglesias, E., B. & E. 930. (s) Harman v. Gandolphi. Holt, N. P. C. 35; Harman v. Mant, 4 Camp. 164; and see ante, p. 290. (t) Wegener v. Smith, 15 C. B. 285; Smith v. Sieveking, 4 E. & B. 945. (u) Wegener v. Smith, ubi supra. |