and without damage the particular cargo which she undertakes to transport.""

This applies, not only to defects which might render the voyage dangerous, but to unfitness to receive or properly care for cargo."

61

Defects in the refrigerating apparatus are a common example of this.62

2. That the vessel will commence and prosecute the voyage with reasonable diligence and without unnecessary deviation.

Charter parties cover this by a stipulation that the vessel, if not at the loading port, shall "at once sail and proceed" thereto, and shall when loaded "proceed with all practicable dispatch." If she fails to do so in the first instance, the charterer may, as decided in the cases of Lowber v. Bangs and Davison v. Von Lingen, above cited, refuse to load her, and have his action for damages. If by excepted perils she is so delayed that the commercial enterprise is frustrated, the charterer may refuse to load her, but in such case he would have no action for damages. If by deviation the charterer suffers loss, he can sue for damages.

64

The vessel is not obligated to proceed, if, after she starts, conditions arose which would render it probable in the judgment of a prudent master or owner that she would be captured; war being imminent."5

60 Jeanie, 236 Fed. 463, 149 C. C. A. 515.

61 Church Cooperage Co. v. Pinkney, 170 Fed. 260, 95 C. C. A. 462. 62 Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65.

63 Jackson v. Insurance Co., L. R. 10 C. P. 125.

44 Scaramanga v. Stamp, 5 C. P. D. 295.

65 Kronprinzessin Cecilie, 244 U. S. 12, 37 Sup. Ct. 490, 61 L. Ed. 960.

CANCELLATION CLAUSE IN CHARTER PARTIES

86. If the vessel does not arrive by the date specified, the charterer may refuse to load, though the delay was due to excepted perils. If she does not arrive within a reasonable time, she is liable for damages, though she arrives before the canceling date.

The ship's first duty is to proceed to the loading port with reasonable diligence. To enforce this obligation, a clause called the "cancellation clause" is inserted. It provides that, if the vessel does not arrive at the loading port ready to load by a given date, all her holds being clear, the charterers may cancel. Under this the charterers may cancel, though the delay was caused by excepted perils.**

If the canceling clause is worded as above, she must not only arrive by the canceling date, but she must also be ready for cargo by that date. Her ballast and dunnage must be out, and all the spaces to which the charterer is entitled must be cleared from the effects of former cargoes and ready for use. She must be in such condition as to satisfy the underwriter's inspector and all reasonable requirements for avoiding injury to cargo.""

As this clause is for the benefit of the charterer, it does not exempt the ship from her obligation to proceed to the loading port with reasonable dispatch. If she loiters by the

§ 86. 66 Smith v. Dart, 14 Q. B. D. 105.

67 Groves v. Volkart, 1 C. & E. 309; Crow v. Myers (D. C.) 41 Fed. 806; Stanton v. Richardson, 45 L. J. Ex. 78; Disney v. Furness, Withy & Co. (D. C.) 79 Fed. 810; In re 2,098 Tons of Coal, 135 Fed. 317, 67 C. C. A. 671; L. N. Dantzler Lumber Co. v. Churchill, 136 Fed. 560, 69 C. C. A. 270. But the charterer cannot claim the right to cancel on account of a failure to be ready caused by his obstructive tactics. Bonanno v. Tweedie Trading Co. (D. C.) 117 Fed. 991; Id., 130 Fed. 448, 64 C. C. A. 650.

wayside, she is responsible to the charterer in damages, though she should arrive before the canceling date."

The clause does not cancel the charter proprio vigore, but merely gives the charterer an option. He must exercise it within the time allowed, or he waives his right."

The charter party usually provides that the vessel can only be ordered to a safe port, where she can lie always afloat. This provision is common both to loading and discharging. It means safely afloat when loaded. Under it a ship is not required to lighter her cargo, or lie at a dangerous anchorage.To

LOADING UNDER CHARTER PARTIES

87. Delay beyond the time allowed entitles the ship to demurrage. Sundays and legal holidays are then counted under the ordinary form of charter party.

The charter party provides that the charterers have a certain number of days for loading, Sundays and legal holidays excepted, and must pay demurrage at a certain rate per ton per day if vessel is longer detained. If the clause is worded in this manner, demurrage is payable for Sundays and legal holidays."1

Sundays and holidays are excluded in counting the lay days, but included in estimating the demurrage, because in

68 March (D. C.) 25 Fed. 106: McAndrew v. Adams, 1 Bing. N. C. 29, 27 E. C. L. 297; Heller v. Pendleton (D. C.) 148 Fed. 1014. 69 W. & C. T. Jones S. S. Co. v. Barnes-Ames Co., 244 Fed. 116, 156 C. C. A. 544.

70 Gazelle, 128 U. S. 474, 9 Sup. Ct. 139, 32 L. Ed. 496; Shield v. Wilkin, 5 Exch. 304; Alhambra, 6 P. D. 68.

71 Brown v. Johnson, 10 M. & W. 331; Red "R" S. S. Co. v. North American Transport Co., 91 Fed. 168, 33 C. C. A. 432; Wallace v. Cargo of 292,000 Feet of Pine Boards (D. C.) 224 Fed. 993. But, if the excepted days are actually used, they count in the absence of a contrary agreement. Whittall v. Rathken's Shipping Co. Ltd., [1907] 1 K. B. 783; Branchelow S. S. Co. v. Lamport, [1907] 1 K. B. 787.

such port work they cannot be used. But demurrage is an allowance for the time during which the ship would otherwise be on a voyage, and, as she does not stop her voyage for Sundays, every day should count. The same reasoning applies to dispatch money, which is an allowance made the charterer for loading in less time than that permitted by the charter.72

The term "working days" means a calendar day on which the law permits work to be done. It excludes Sundays and legal holidays, but does not credit the charterer with days when the weather is too bad to work."8

In these latter days, a stipulation against strikes has been found quite convenient."

Under lump-sum charters, a fruitful source of controversy is as to the spaces on the ship which the charterer may fill. He is entitled to all spaces where cargo can be put, except the spaces necessary for the crew, coal, tackle, apparel, provisions, and furniture. The variety in the build of vessels renders it impossible to lay down any general rule. A good example of such controversies is Crow v. Myers.75

The loading is largely governed by the custom of the port, except where inconsistent with the written contract.70

72 Muirfield (D. C.) 174 Fed. 75; Fargrove Nav. Co. v. Lavino & Co. (D. C.) 191 Fed. 525; Pool Shipping Co. v. Samuel, 200 Fed. 36, 118 C. C. A. 264.

73 Sorensen v. Keyser, 52 Fed. 163, 2 C. C. A. 650; Wood v. Keyser (D. C.) 84 Fed. 688; Id., 87 Fed. 1007, 31 C. C. A. 358. The proper language for the charterer to use in order to get the benefit of bad weather is "weather working days." Bennetts v. Brown, [1908] 1 K. B. 490.

74 Marshall v. McNear (D. C.) 121 Fed. 428; Pyman S. S. Co. v. Mexican Central R. Co., 169 Fed. 281, 94 C. C. A. 557; Hulthen v. Stewart, [1902] 2 K. B. 199; [1903] A. C. 389.

75 (D. C.) 41 Fed. 806. See, also, Kaupanger (D. C.) 241 Fed. 702. But the vessel may carry only so much coal as is reasonably necessary for the voyage. Darling v. Raeburn, [1906] 1 K. B. 572; [1907] 1 K. B. 846.

76 Moore v. U. S., 196 U. S. 157, 25 Sup. Ct. 202, 49 L. Ed. 428.

EXECUTION OF NECESSARY DOCUMENTS

UNDER CHARTER PARTIES

88. The master must sign the bills of lading and other necessary documents.

Most charter parties require the master to sign bills of lading as presented by the charterer for the different parts of the cargo as received on board, and drafts for the disbursements made by the charterers to pay the vessel's bills when in port, and for the difference between the charter party freight and the freight as per bills of lading. All these are important documents. The amount necessary to clear a single large ship runs up into the tens of thousands. As charterers with a large business may have several on the berth loading at once, the capital necessary for their use would be enormous. Hence these documents are needed by him and his shippers for obtaining discounts from his banker. Thus, a man who sees an opportunity to ship a thousand bales of cotton to Liverpool, where he can sell it at an advance, can buy it on this side, engage freight room from some charterer who has a ship in port or expected, get a bill of lading for it to order, draw on his Liverpool consignee, attaching the bill of lading to the draft, and get his draft at once discounted at his bank.

Under the usage of trade, the freight is payable at the port of discharge, and is collected by the vessel owner. If the charterer has sublet the room to different shippers for more than he has agreed to pay the owner for the use of his ship, the owner will owe him the difference. This is calculated at the loading port on the completion of the loading, and the master gives the charterer a draft on his owners for the amount. If the cargo has started from inland points, and the charterer has to pay accrued charges of previous carriers (for the last carrier pays the charges HUGHES, ADM.(2D ED.)—12