into a port in England (1). The statute is to be construed in connection with the Bill of Lading Act (m), and the property in the goods must pass to the assignee in order to entitle him to bring an action by virtue of the statute (n).

The act gives a statutory right to proceed against the ship, but no lien attaches prior to the institution of the suit (0).

COURTS

The County Courts Admiralty Jurisdiction Act, 1868, con- COUNTY ferred upon county courts having admiralty jurisdiction as to ADMIRALTY any claim for damage to cargo in a cause in which the amount JURISDICTION. claimed did not exceed 3007. It was decided on this act that it did not confer a more extensive jurisdiction than that exercised by the Court of Admiralty (p).

But by the County Court Admiralty Jurisdiction Amendment Act, 1869 (9), it was enacted that any county court appointed to have admiralty jurisdiction should have jurisdiction to try and determine the following causes:

(1.) As to any claim arising out of any agreement made in

relation to the use or hire of any ship, or in relation to
the carriage of goods in any ship, and also as to any
claim in tort in respect of goods carried in any ship, pro-
vided the amount claimed does not exceed three hundred
pounds:

(2.) As to any cause in respect of any such claim or claims as

aforesaid, but in which the amount claimed is beyond
the amount limited as above mentioned, when the parties
agree, by a memorandum signed by them or by their
attorneys or agents, that any county court having admi-
ralty jurisdiction, and specified in the memorandum,
shall have jurisdiction.

In the case of The Cargo ex Argos (r), the Judicial Committee of the Privy Council decided that this latter enactment conferred upon County Courts having admiralty jurisdiction a more extended jurisdiction than that exercised by the Admiralty Court, and that a county court having admiralty jurisdiction might entertain a suit against a ship arising out of a charter

(1) The Bahia, Br. & L. 61; The Pieve Superiore, L. R., 5 P. C. 482. (m) 18 & 19 Vict. c. 111, Appendix, p. clxxvi.

(n) The Freedom, L. R., 3 P. C. 594. (o) The Pieve Superiore, supra.

M.P.

(p) 31 & 32 Vict. c. 71, s. 3, Appendix, p. ccxcviii; The Dowse, L. R., 3 A. & E. 135.

(q) 32 & 33 Vict. c. 51, s. 2, Appendix, p. cccvii.

() L. R., 5 P. C. 134.

D D

MEASURE OF
DAMAGES FOR
BREACH OF
THE CON-
TRACT OF
AFFREIGHT-

MENT.

party. This decision has lately been followed by the Court of Appeal (s).

A cause pending in a county court having admiralty jurisdiction may be transferred to the Admiralty Division, notwithstanding that the cause may relate to matters which the Admiralty Division could not have entertained in the first instance (f).

A charter-party sometimes contains some such words as the following:-" Penalty for non-performance, estimated amount of freight." Such a stipulation has ordinarily no effect. The actual damage sustained, and no other damage, can be recovered for breach of charter-party, unless (as is seldom the case) the parties distinctly agree that a named sum shall be regarded as liquidated damages in case of breach (u).

In an action against a shipowner for unreasonable delay in the carriage of goods on a voyage, the consignee of the goods is not entitled to recover damages by reason of a fall in the market value of the goods between the time when the goods ought to have been delivered and the time when they were delivered (x). Where the shipowners received at Glasgow cases of machinery, to be carried to a port abroad and there delivered to the plaintiffs, the machinery was, as the plaintiffs at the time of shipment knew, intended for the erection of a saw-mill on the arrival of the ship at her destination default was made in the delivery of one of the cases, and the plaintiffs were obliged to send to England to replace the missing

(8) Brown v. The Owners of the Alina, 5 Ex. D. 227. For long there was a conflict of authority on this point. See Simpson v. Blues, L. R., 7 C. P. 290; Gunnested v. Price, L. R., 10 Ex. 65.

(t) The County Courts Admiralty Jurisdiction Act, 1868, s. 6; The Swan, L. R., 3 A. & E. 314.

(u)"Such a clause is not the absolute limit of damages on either side: the party may, if he thinks fit, ground his action upon the other clauses or covenants, and may, in such action, recover damages beyond the amount of the penalty, if in justice they shall be found to exceed it. On the other hand, if the party sue on such a penal clause, he cannot, in effect, recover more than the damage actually sus

tained."-Abbott on Shipping, 5th ed. pt. iii. ch. i. s. 6, p. 170. See Harrison v. Wright, 13 East, 343; Sparrow v. Paris, 7 H. & N. 594; 31 L. J., Ex. 137; Winter v. Trimmer, 1 W. Bl. 395. And see Goddard v. Gray, L. R., 6 Q. B. 139, where the matter is incidentally considered.

(x) The Parana, L. R., 1 P. D. 452, 2 P. D. 118. But in an earlier case in which the shipowner neglected to have his ship ready to load a cargo of coals at the specified time, and the merchant was obliged to procure other vessels to carry the coal and to pay an additional price for the coal, it was held that the merchant was entitled to recover damages in respect of the additional price so paid. Featherston v. Wilkinson, L. R., 8 Ex. 122.

machinery; it was held that the measure of damages was the cost of replacing the lost articles at the port of discharge, with interest until judgment, by way of compensation for the delay (y).

Where the ship arrives in port and is ready to deliver, and the consignee makes default in naming a wharf, the shipowner is entitled as damages to the net amount he would have received if the cargo had been duly delivered (z), and this notwithstanding that after default the ship by reason of an arrest under admiralty process becomes unable to deliver the cargo (a). Where the master is bound by charter to sign clean bills of lading and refuses to do so, but receives and carries the goods and delivers them in good condition, nominal damages only can be recovered (b).

In a case where the plaintiff's vessel was chartered to proceed with outward cargo to Puerto Cabello, and then to proceed to Maracaibo to load a homeward cargo, it was afterwards agreed between the plaintiff and the charterer that the plaintiff should have the option of sending a portion of the outward cargo to Maracaibo, and that any expense the ship might incur in consequence of this should be borne by the charterer. The charterer shipped a full cargo, a portion for Puerto Cabello and a portion for Maracaibo, and a separate manifest was made out for each portion of the cargo. On the arrival of the ship at Puerto Cabello, the officers of the Customs prohibited the discharge of the cargo there, and alleged that it was not in accordance with the law of Venezuela to have separate manifests, and a fine of 500 dollars was imposed upon the master for such alleged breach of the law. The master was unable to pay the fine, and in consequence his ship was detained for a long time, and he incurred costs and expenses. It was held, that the costs and expenses were not such as were contemplated by the agreement, and that the plaintiff was not entitled to recover, against the charterer, anything in respect of them (c).

(y) British Columbia Company v. Nettleship, L. R., 3 C. P. 490.

(z) Smith v. McGuire, 3 H. & N. 554.

(a) Stewart v. Rogerson, L. R., 6 C. P. 424.

(b) Jones v. Hough, 5 Ex. D. 115.
(c) Sully v. Duranty, 33 L. J., Ex.

319.

DEMURRAGE DEMURRAGE, properly so called, is the sum which is fixed by the contract of carriage as a remuneration to the shipowner for the detention of the ship beyond the number of days allowed for loading or unloading (a). 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

(a) Where no time is named there is an implied contract that the ship should be discharged in a reasonable time. Fowler v. Knoop, 4 Q. B. D. 299. Whenever in the charter-party it is agreed that a specified number of days shall be allowed for loading, commonly called "lay days," and that it shall be lawful for the freighter to detain the vessel for that purpose a

further specified number of days, on payment of demurrage, commonly called demurrage days, this constitutes a stipulation on the part of the freighter that he will not detain the ship for the purpose of loading beyond the demurrage days. Ford v. Cotesworth, L. R., 4 Q. B. 127; 5 Q. B. 544; Nelson v. Dahl, per Brett, L. J., 12 Ch. D. at p. 583.

the contract (b). When the ship is detained by the freighter beyond the days of demurrage, a claim arises for unliquidated 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 (c). It sometimes occurs that no demurrage is mentioned in the charter or bill of lading, but in these cases damages for detention or for breach of some provision as to delay in loading or unloading may become payable, and these damages are not uncommonly, though inaccurately, spoken of as demurrage (d).

as to its

payment.

Although the liability to pay demurrage depends almost in General rules every case upon the terms of the particular contract, yet there are some general principles which regulate contracts of this description which require notice.

ment of obli

The right to demurrage or to damages for detention, whether Commenceat the port of loading or at the port of discharge, cannot arise gation to load until the shipowner has placed his vessel at the disposition of the or unload. charterer at the place of loading or discharge according to the terms of the contract of affreightment. The ship must be at the place named in the contract of affreightment, and must be ready, so far as she is concerned, there to load or unload as the case may be, before the obligation of the charterer to load or unload attaches; and whatever period the charterer may be entitled to occupy in loading or unloading must be reckoned from that date.

If the place named is a port and ships customarily load or unload only at some particular parts of the port, the obligation of the merchant to load or unload does not commence until the ship has arrived at some part of the port where vessels usually load or unload, because it must be taken that that is the place which by custom is intended by the words in the charterparty (e). But if the charter-party describes a more limited

(b) 1 Beawes, Lex Merc. 197; Smith, Merc. Law, 271. The delay itself is also sometimes called demurrage.

(c) Randall v. Lynch, 12 East, 179; Moorsom v. Bell, 2 Camp. 616. 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.

(d) Cauthron v. Trickett, 15 C. B., N. S. 754; 33 L. J., C. P. 182.

(e) Brereton v. Chapman, 7 Bing. 559; Kell v. Anderson, 10 M. & W. 498. In all these cases, it seems to be open to the consignee to show that by a custom of the port of discharge the lay days commence only when the ship has arrived at a particular place in the port. See Norden Steam Company v. Dempsey, 1 C. P. D. 654, where the shipowner, although he was a foreigner, was allowed to give in evidence a custom of the port of