the ship, by reason of her draught of water, is unable to enter the port of loading or to leave it fully laden.

Where a ship was to proceed to a bar-harbour, or as near thereto as she could safely get (g), and the merchant was to load a full cargo, and at the time of the making of the charterparty, both parties knew that if a full cargo were loaded within the bar, the vessel would not be able to recross it and get out to sea, it was held that the shipowners had complied with their undertaking by taking the ship within the bar and receiving there as much of the cargo as she could carry over the bar, and by waiting outside the bar for the remainder (). In a later case a charter provided that the ship should proceed to a particular port or so near thereunto as she could safely get and should be ready to load by a given day, taking from the factors of the merchant such produce as he might find it convenient to ship, not exceeding what the ship could reasonably stow and carry. The ship so loaded was to proceed to London and deliver the cargo on being paid a lump sum for freight, and the cargo was to be taken to and from alongside at the merchant's risk. The ship proceeded to and entered the port named, which was a bar-harbour, which could not be entered or left at certain tides by vessels of a certain draught. A cargo was then placed on board by the agent of the merchant, for which the master signed bills of lading. When the vessel was thus laden she drew so much water that she grounded upon the bar, and it became necessary, therefore, to take out nearly all the goods. The master then offered to take on board so much of the cargo as would not prevent his passing the bar in safety, and then to remain outside the harbour, and, if possible, to take in there, at the merchant's risk, the remainder of the cargo. The agent of the merchant refused to assent to this, and the ship sailed with only a small quantity of goods on board. Under these circumstances, it was held the shipowners were not entitled either to the stipulated freight or to damages for the refusal to ship the cargo, for that the master, although not bound to go within the bar at all, having done so and having signed bills of lading, was bound to find his way to his destination (i).

see

(g) As to the effect of custom respecting the meaning of the words "as near thereto as she may safely get,' supra, p. 296, and see post, p. 320, n. (ƒ). (h) Shield v. Wilkins, 5 Ex. 304.

(i) The General Steam Navigation Company v. Slipper, 11 C. B., N. S. 493. See also Strugnell v. Friedrichson, 12 C. B., N. S. 452.

In another case it was held that a shipowner was not discharged from his liability to complete the voyage, and to take his ship to a port up the Danube at which it was by the charterparty agreed that a cargo should be laden, by reason of a want of water at the mouth of the river which lasted two months, even although the charter provided that the ship should proceed to the port of loading, "or as near thereunto as she might safely get," and contained the ordinary exception as to perils of the seas; and although it also appeared that it would not have been safe for the ship to lie during the latter of the two months off the mouth of the Danube (j).

The principle to be derived from the cases seems to be that where by the charter-party it is stipulated that a ship is to proceed to a named place either for the purpose of loading or unloading, "or so near thereto as she may safely get," and the shipowner has brought his ship near to the named place, and is prevented from getting nearer by some obstruction or disability of such a character that it cannot be overcome by the shipowner by any reasonable means, without incurring such delay as would, having regard to the object of the adventure of both the shipowner and the charterer, be, as a matter of business, wholly unreasonable; the voyage must be regarded as having come to an end, and the charterer is bound to perform his share of the contract to load or to receive the cargo at the place where the ship lies (k).

with de

Where the charterers contracted to load a cargo of coals on Express proboard "with usual despatch," it was held that they were bound vision to load to load the vessel with the usual despatch of persons who have a spatch. cargo ready for loading at the port, and that they were liable for a delay caused by a severe frost which rendered unnavigable the canal along which coals were to be brought (7).

Where the charter-party is

(j) Schilizzi v. Derry, 4 E. & B. 873. See also Kearon v. Pearson, 7 H. & N. 386; Parker v. Winlow, 7 E. & B. 942; and Bastifell v. Lloyd, 1 H. & C. 388.

(4) See the judgment of Brett, L. J., in Nelson v. Dahl, 12 Ch. D., at p. 593. In the case the charter-party provided that the ship should proceed "to London Surrey Commercial Docks, or so near thereto as she may safely get." The ship arrived in London, and the owners of the dock were applied to for a berth, but they refused to assign one in consequence of the crowded state of

silent as to time the law will

the docks, and the shipowner's appli-
cation for admission to the docks was
refused. There was no prospect of the
ship being able to gain admission to
the dock for six weeks at least. In
these circumstances the ship was moored
at the nearest safe place. It was held,
under the circumstances, that the ob-
ligation of the charterer to take deli-
very commenced as soon as the ship
was moored as near as she could safely
get to the docks.

(1) Kearon v. Pearson, 7 H. & N. 386.

Implied pro

vision to load

in reasonable

time.

STOWAGE OF
CARGO.

Stevedore.

imply a contract on the part of the merchant to do acts such as the providing of cargo, the performance of which depends entirely upon himself within a reasonable time. So where the act contracted to be done is one in which both parties must concur, as, for instance, the loading or the discharge of the cargo, the contract to be implied by law in the absence of any express stipulation as to time is that each party shall use reasonable diligence in performing his part (n). But where there is an implied obligation that each party shall use reasonable diligence in performing his part of the contract, if owing to some unexpected event beyond the control of either party, the performance of the acts to be done by each are delayed for an unreasonable time, neither can maintain an action against the other (o).

In the absence of custom or agreement to the contrary, it is the duty of the master, on the part of the owner, to receive and properly stow on board the goods to be carried (p), which ordinarily are to be delivered to him alongside (q). This is a duty arising upon the mere receipt of the goods for the purpose of carriage (r).

It frequently happens, however, that the charter-party provides that a stevedore shall be appointed by the charterer, and in such cases the master is not liable to the charterer for the negligence of the stevedore employed by the charterer (s). Where, however, a ship is put up as a general ship by the charterers, and goods are delivered to the master by a shipper who has no notice of the charter-party, the master or owners of the ship cannot rely upon the provisions of the charter-party respecting the employment of a stevedore to protect themselves against a claim by the shipper for negligent stowage (†).

Where a charter-party provided that "the charterers' stevedore was to be employed by the ship," it was held that these words merely gave to the charterer an option to employ a stevedore, and if he chose not to do so, that the master was

(n) Ford v. Cotesworth, L. R., 5 Q. B. 544; Fowler v. Knoop, 4 Q. B. D. 299.

(0) Ford v. Cotesworth, L. R., 5 Q. B. 544. See further as to delay, ante, p. 94, n. (p).

(p) See Blackie v. Stembridge, 6 C. B., N. S. 894; Swainston v. Garrick, 2 L. J., Ex. 225.

(9) See British Columbia Saw Mill

Company v. Nettleship, L. R., 3 C. P., at p. 502.

() Hayn v. Culleford, 3 C. P. D. 416; 4 C. P. D. 182.

(s) As to the effect of clauses in charter-parties or bills of lading exempting the shipowner from negligent stowage, see post, pp. 357, 358. (t) Sandeman v. Scurr, L. R., 2 Q. B.

86.

not relieved from his ordinary duty to load the ship (u). And where a charter-party contained a provision that the charterers should be at liberty to employ stevedores and labourers to assist in loading cargo, but that such stevedores and labourers, being under the control and direction of the master, the charterers were not to be responsible to the owners for damage or improper stowage, it was held that there was nothing in the charter-party to exonerate the shipowners from responsibility for negligent and improper stowage by the stevedores employed by the charterer (x).

party as to

The general obligation of the master with reference to signing Stipulations bills of lading for goods laden on board is considered else- in charterwhere (y); but it is necessary to note here that the master must bills of lading. act in accordance with the provisions of the charter-party. Thus, he has no authority to sign bills of lading at a freight less than the chartered freight in the absence of express provisions in the charter-party (≈). But it not unfrequently happens that the charter-party provides that bills of lading shall be signed by the master as presented to him, at any rate of freight, without prejudice to the charter-party (a). In such cases the master is, of course, bound by the terms of the charter-party, and if he refuses to sign bills of lading as presented, he renders the owners liable for breach of contract (b). There is no duty on the charterers, in the absence of custom or express contract, to hand over to the shipowners copies of the bills of lading of the goods put on board (c).

It seems that a person who has shipped goods may re-demand Right of shipthe goods a reasonable time before the ship sails, on payment of per to re-demand goods. the freight which would become due, and indemnifying the master against the consequences of any bills of lading signed for the goods (d).

The charter-party often contains stipulations that the cargo shall be delivered at one of several ports as ordered, or at a safe port within specified limits, and that the ship shall call at a port

(u) The Anglo-African Company v. Lamzed, L. R., 1 C. P. 226.

(x) Sack v. Ford, 13 C. B., N. S. 90. See also Roberts v. Shaw, 32 L. J., Q. B. 308.

(y) See supra, p. 136, post, p. 343. (z) Hyde v. Willis, 3 Camp. 202. (a) Pearson v. Goschen, 33 L. J., C. P. 265. As to the meaning of the words "without prejudice to the charter

party," see Shand v. Sanderson, 4 H. &
N., at p. 389; Santos v. Brice, 6 H. & N.
290; and see supra, p. 272.

(b) Jones v. Hough, 5 Ex. D. 115.
But in ordinary cases the damages
recoverable will be nominal only.

(c) Dutton v. Powles, 2 B. & S. 174; S. C., in error, ib. 191.

(d) Tindall v. Taylor, 4 E. & B. 219.

FOR ORDERS.

PORT OF CALL of call for orders. It is sometimes provided that the orders shall be given within a specified time after the arrival of the ship at the port of call; but, in the absence of any such stipulation, the ship is bound to wait for orders a reasonable time only, and if no orders are given, it seems that the master may sail to any one of the ports within the provisions of the charter-party. There is no obligation, in the absence of an express provision to the effect in the charter-party, for the master to give notice of the arrival of the ship at the port of call, for it is the duty of the charterer to be on the outlook for the ship (d).

Safe port.

The charterer, in giving orders, is bound to name a port (e) to which the ship may go with safety (ƒ). Where a ship is, by a charter-party, to proceed to "a safe port" to be named by the charterers, they are not entitled to name a port, by nature

(d) Sieveking v. Maas, 6 E. & Bl. 670; Nicholson v. Renwick, Weekly Notes, 26th June, 1880, p. 119. There is sometimes inserted in the charter-party an express provision that the orders shall be given within twenty-four hours after notice of arrival at the port of call shall have have been given to the charterer's agent, and that the demurrage days shall run if the ship is detained after that time.

(e) As to the meaning of "port," see Brown v. Tayleur, 4 A. & E. 241.

(f) It seems that a port into which a ship cannot enter when fully laden is not a safe port. See The General Steam Navigation Company v. Slipper, 11 C. B., N. S. 493. But where the charterparty contains the words "as near thereto as she may safely get," it seems to be open to question whether the ship may not be ordered to a port over the bar of which she cannot enter without discharging a portion of her cargo, provided there are means of safely discharging such portion outside the bar. See The Alhambra, Admiralty Division, 27th July, 1880. As to the meaning of the words "safe port,' see the judgment of Wightman, J., in Ogden v. Graham, 1 B. & S. 773; 31 L. J., Q. B. 26. And see supra, pp. 316, 317. For the meaning of the words" as near as she can safely get,' see supra, pp. 296, 317, and the judgment of Lord Campbell in Schilizzi v. Derry, 4 E. & Bl. 873; Shield v. Wilkins, 5 Ex. 304; Capper v. Wallace, 5 Q. B. D. 163; Hayton v. Irwin, 5 C. P. D. 130; Nelson v. Dahl, 12 Chan. D. 568; Metcalfe v. The Britannia Ironworks Company, 2 Q. B. D. 423.

In Capper v. Wallace, 5 Q. B. D.

163, where, in accordance with orders given in pursuance of a charter-party, the ship was to proceed to a port in Holland some distance up a canal, or so near thereto as she could safely get, and, in order to enable the ship to get up the canal, it was necessary that at least one-third of the cargo should be discharged, and the charterers, who were bound by the terms of the charter-party to take cargo from alongside, refused to make any arrangement for taking delivery of any portion of the cargo at the mouth of the canal, it was held that the master was justified in considering the voyage at an end, and in treating the mouth of the canal as the place of discharge. But in this case the Court intimated an opinion that it could not be laid down as an inflexible rule that when a ship has got as near to the port as she can get, and the only impediment to proceeding further is overdraught, that the master is under all circumstances entitled to consider the voyage as at an end. "The overdraught may be such, "and the cargo so easily dealt with,

as that the surplus may be removed "and the ship sufficiently lightened "without exposing her to extra risk, or "the owner to any prejudice, and with"out substantially breaking the continuity of the voyage, and in such case if the consignee is at hand to "receive the surplus cargo and so re"lieve the overdraught, we are of "opinion that it would be the duty of "the master to lighten the ship and "proceed to the port." See also Hillstrom v. Gibson, Sess. Ca., 3rd series, 463.