It has been held, that in computing the number of lay days Mode of computing days.. Sundays are to be included, unless working days are expressly mentioned, or are implied by the context (a), or there be any custom to the contrary (b). In one case the jury were satisfied that such a custom existed in London (c). Where no division of a day is stipulated for, a fraction counts as a whole day (d). The contract to pay demurrage, which is contained in the Parties liable charter-party, is made between the shipowners and the freighters. to pay demurrage. 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; his acceptance of the goods under these circumstances being evidence to establish an agreement on his part to pay the demurrage (e). 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 (ƒ). These decisions are now of little importance, since by the Bills. of Lading Act, 1855 (g), s. 1, every consignee of goods named in a bill of lading, and every indorsee to whom the property (a) Commercial Steamship Company v. Boulton, L. R., 10 Q. B. 346. (b) Brown v. Johnson, 10 M. & W. 331; and Nieman v. Moss, 29 L. J., Q. B. 206. (c) Cochran v. Retberg, 3 Esp. 121. (d) Commercial Steamship Company v. Boulton, ubi sup.; Hough v. Athya, 6 Sess. Cases, 4th series, p. 961. (e) Harman v. Gandolphi, Holt, N. P. C. 35; Harman v. Mant, 4 Camp. 164; and see ante, p. 382. A jury may find that such an agreement exists, notwithstanding that the receiver of the goods at the time he received them alleged that he was not liable to pay demurrage. Wegener v. Smith, 15 C. B. 285. (f) Wegener v. Smith, ubi sup.; Porteus v. Watney, 3 Q. B. D. 534. The wording of the bill of lading in these cases were peculiar. It also appeared in the former case that the demurrage had accrued by reason of the delay of the indorsee at the port of discharge. In Smith v. Sieveking, 4 E. & B. 945, where the words of the bill of lading, under which the goods were received, were "paying for the said goods as per charter-party," the Exchequer (g) 18 & 19 Vict. c. 111, Appendix, p. clxxvi. Cesser clause. passes upon or by reason of the consignment or indorsement, is subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself. It is usual when the charterer contracts as agent, and even when he is a principal it is not unfrequent, to insert a clause in the charter-party providing that his liability shall cease when the cargo is shipped. In such a case the charterer is not liable for demurrage at the port of discharge (). Whether he is exempt from demurrage at the port of loading will depend upon the language of the particular clause adopted. Where the words were, "the charter being concluded by the charterer on behalf of another party resident abroad, all liability of the charterer shall cease as soon as he has shipped the cargo," and no lien was given for demurrage at the port of discharge, it was held that this did not relieve him from liability for delay in loading (i). If, however, the words are, "the liability as to all matters and things as well before as after the shipping of the cargo shall cease as soon as they have shipped the cargo," the exemption applies to demurrage accruing both at the port of loading and of discharge (). So where the words are, "charterer's liability to cease when the ship is loaded," the captain having a lien upon the cargo for freight and demurrage (1). In the above cases great stress was laid upon the provision whereby a lien is given to the shipowner, and there has been a strong tendency to treat the cesser of the liability and the operation of the lien as correlative, so that the liability of the charterer is to cease only so far as the shipowner has a lien for demurrage, unless the words used clearly express a contrary intention (m). Where a charter was silent as to lay or demurrage (h) Oglesby v. Yglesias, E. B. & E. 930. (i) Christopherson v. Hanson, L. R., (k) Milvain v. Perez, 3 E. & E. 495. 101; Kisch v. Cory, L. R., 10 Q. B. 553. The principle acted upon in these cases has been held to apply although the consignee is the agent of the charterers and consignees who are exporting for their own use. Sanguinetti v. Pacific Steam Navigation Company, 2 Q. B. D. 238. See also French v. Gerber, 2 C. P. D. 247, where the exoneration clause was held to apply to omissions by the charterers to give orders as to the port of discharge, and to giving orders to discharge at an unsafe port, whereby the shipowner was delayed. (m) Where the language of the days, but contained a clause that the charterer's liability should cease upon shipping the cargo, provided the same should be worth the freight on arrival, the captain having an absolute lien on it for demurrage, and a delay occurred in loading, it was held that, as the lien for demurrage could there apply only to detention, as distinguished from demurrage properly so called, the charterers were exempt from liability (n). In a more recent case where the charter contained no clause for demurrage at the port of lading, merely providing that the cargo should be loaded in the "customary manner," but as to the port of discharge provided for working days and demurrage, and that the ship should have an absolute lien on cargo for freight and demurrage, "the charterer's liability to any clauses in this charter ceasing when he has delivered the cargo alongside ship:" it was held that the exemption of the charterer and the lien clause applied only to demurrage at the port of discharge, and not to damage for delay at the port of loading (0). The master cannot sue for demurrage in his own name unless When master it is mentioned in the bill of lading (p), or unless the bill of may sue for demurrage. lading contains an express stipulation on the breach of which the payment of demurrage is implied, as where it provides that the vessel shall take her regular turn in unloading (1). A claim for demurrage seems to be within the jurisdiction County Court of a County Court having admiralty jurisdiction (~). admiralty jurisdiction. TRANSITU. Stoppage in transitu is a subject which belongs properly to STOPPAGE IN the general mercantile law; but as questions arising out of this right often render it difficult for shipowners and masters to ascertain to whom goods are to be delivered, it is necessary to notice shortly the principles by which this right is regulated. charter is such that the charterer is clearly exempted from both antecedent and future liabilities, the question of lien is immaterial, but if the words admit of either construction the Court will lean to the more equitable view, and hold that liability as to antecedent breaches is to cease, only so far as an equivalent lien is given. French v. Gerber, 1 C. P. D. 737. (n) Bannister v. Breslauer, L. R., 2 C. P. 497. See the observations on this case in Gray v. Carr, and in Lockart v. Falk, post. (0) Lockart v. Falk, L. R., 10 Ex. 132. See also Gray v. Carr, L. R., 6 Q. B. 522. (p) Brouncker v. Scott, 4 Taunt. 1; Evans v. Forster, 1 B. & Ad. 118; Jesson v. Solly, 4 Taunt. 52; ante, p. 112, and the cases cited above. (9) Cawthron v. Trickett, 15 C. B., N. S. 754. (r) Brown v. Owners of the Alina, 5 Ex. D. 227; The Cargo ex Argos, L. R., 5 P. C. 134. See ante, p. 401. Wherein right consists. How long transit continues. The right of stoppage in transitu is a right conferred on the unpaid vendor of goods to stop them, on the bankruptcy or insolvency of the vendee, before they have reached his actual or constructive possession; and to resume possession of them, so as to put himself in the same position as if he had not parted with them. The origin of the right is doubtful (g); and the effect of its exercise on the contract of sale is not clearly settled (); but it rests obviously on a broad principle of justice. It was formerly enforced both at common law and in equity (i), and it has been recognized in many of the foreign systems of law (k). The very definition of this right implies that there must be some intermediate agency between the vendor and the vendee; there must be a transit,—a passage of the goods from the one to the other, and this conveyance is generally effected by the agency of a carrier. The general rule is, that the transitus continues, and that consequently the right of stoppage exists until the goods arrive at the actual or constructive possession of the vendee or consignee, as owner (7). In the earlier cases it was considered that nothing but an actual delivery to the consignee would defeat the exercise of the right; but this doctrine has been long abandoned (m); and now the question always is, have the goods (g) See the judgment of Lord Abinger, C. B., in Gibson v. Carruthers, 8 M. & W. 321. The first case in which the principle appears to have been acted upon in our Courts is Wiseman v. Vandeput, 2 Vern. 203. (h) See Bloxam v. Sanders, 4 B. & C. 941; Clay v. Harrison, 10 B. & C. 99; and the judgment of Parke, B., in Wentworth v. Outhwaite, 10 M. & W. 436. The better opinion is, that it does not rescind the contract. Ib., and see the notes to Lickbarrow v. Mason, 1 Smith's L. C. (8th edit.) 810; Schotsman v. The Lancashire and Yorkshire Rail. Company, L. R., 2 Ch. 332; Benjamin on the Contract of Sale, 723-725 (edit. 1873). This right arises properly only in cases in which the consignee has become bankrupt or insolvent; but a right of a similar nature may exist in other cases by contract. See Wilmhurst v. Bowker, 2 M. & Gr. 792; S. C., 7 M. & Gr. 882; and the judgment in The Constantia, 6 Rob. 321. The question is discussed in Smith's Merc. Law (6th ed.) 554, note (b); and the learned author thinks that a general inability to pay, evidenced by stoppage of payment, is sufficient to satisfy the rule, although there has been no actual insolvency. See further as to this right, Paley's P. & A. c. 4, s. 5. (i) Schotsman v. The Lancashire and Yorkshire Railway Company, L. R., 2 Ch. 332. The vendor can only claim his goods back again; he cannot recover the insurance upon them should they have been damaged in the transit. Berndtson v. Strang, L. R., 3 Ch. 588. (k) See the judgment in Gibson v. Carruthers, 8 M. & W. 321. (1) See the judgment of Tindal, C.J., in Juckson v. Nichol, 5 N. C. 516; Heinekey v. Earle, 8 E. & B. 410; and the cases there cited. (m) Hunter v. Beale, cited 3 T. R. 466, where Lord Mansfield used the expression "the goods must have come to the corporal touch of the vendees." But see Ellis v. Hunt, 3 T. R. 464; Dixon v. Baldwen, 5 East, 175; Litt v. Cowley, 7 Taunt. 169. arrived at the actual destination originally contemplated by the vendee, or have they, in the meantime, come to his actual or constructive possession? Where the destination of the goods is left in doubt under a charter-party, but a port of call is named therein where the vessel must touch, for orders where to proceed to, the arrival of the vessel there does not end the transitus, and a stoppage of the goods thereat would under ordinary circumstances be valid (n). The carrier being usually a mere agent for the passage of the General effect goods, his possession is not in general the constructive posses- a carrier. of delivery to sion of the vendee; at least, so far as to interfere with the right of stoppage; even although the vendee may have specially appointed him (0). And in ordinary cases the transit continues as long as the goods are in the carrier's possession, not only in the actual course of the journey or voyage, but even while they are in a place of deposit connected with their transmission, such as a warehouse (p). If, however, the vendee take them out of the possession of the carrier before their arrival, whether with or without his consent, there seems to be no doubt that the transit is at an end; although the carrier, in the absence of his consent, might have a right of action against the vendee for so doing. So, there may be a constructive possession by the vendee although the goods are still in the carrier's hands, as where the latter enters expressly, or by implication, into a new agreement, distinct from the original contract for carriage, to hold the goods for the consignee as his agent, not for the purpose of expediting them to the place of original destination (n) Fraser v. Witt, L. R., 7 Eq. 64. (o) Berndston v. Strang, L. R., 4 Eq. 481; Ib., 3 Ch. 588, 590; Ex parte Watson, In re Love, 5 Ch. D. 35; Ex parte Cooper, In re MacLaren, 11 Ch. D. 68; Ex parte Rosevear China Clay Company, In re Cock, 4 ib. 560, where James, L. J., said, "The authorities show that the vendor has a right to stop in transitu until the goods have actually got home into the hands of the purchaser, or of some one who receives them in the character of his servant or agent. That is the cardinal principle. In order that the vendor should have lost that right the goods must be in the hands of the purchaser, or of some one who can be treated as his servant or agent, and not in the (p) Mills v. Ball, 2 B. & P. 457; |