V. &c. 1826. the default of the merchant; and on the other, that the November. merchant shall discharge the vessel with all the dispatch Brown, &c. possible, under existing circumstances: that, if there were Ralston, no stipulation for lay days, and the landing of the cargo were prevented for any length of time by an uncontrollable necessity, the vis major, such as storms, ice, or the orders of the government, the master would not only be entitled to no damages for the delay, but if the cargo were in the mean time lost, he would not be entitled to freight, any more than if it had been lost in the midst of the voyage; whilst if the delivery of the cargo were delayed by the default of the merchant, and without necessity, the master would not only be entitled to damages for such unnecessary delay, but to the stipulated freight, even if the cargo were lost in consequence of such delay. He might land the cargo, and store it at the expense of the merchant, retaining a lien upon it for his freight. Without a stipulation as to the time to be allowed for unloading and receiving the cargo, each case might give occasion to a contest between the parties, whether the merchant had used due diligence in discharging the ship, and whether he was liable for damages for delay in unloading; and in case of the loss of the cargo by such delay, whether the captain was entitled to freight. To avoid such controversies, charter parties usually contain a stipulation for lay days, prescribing a time within which, if the ship is discharged, no laches can be imputed to the merchant, and if the cargo is lost, no damages nor freight claimed. But, this stipulation has no further effect upon the obligations of the parties, resulting as before said, from the nature of the contract, so that if, by the default of the merchant, the vessel were not discharged within the stipulated lay days, the parties would be in the same situation as to all subsequent delay, as if there had been no lay days agreed upon. If by the merchant's default, the vessel was not discharged within the lay days, the captain would be entitled to damages and freight, and might land the cargo as aforesaid. V. &c. But, if the unloading were, during the lay days, prevented 1826. by an irresistible necessity, and that impediment continued November. after the expiration of the lay days, the master would be Brown, &c. bound to wait until the impediment was removed, if it Ralston, were in its nature temporary; and until the vessel, with due diligence, could be unloaded, without any right to damages for the delay, beyond the lay days. In case of loss of the cargo, during the impediment, or before it could be unloaded after the impediment removed, he would lose his freight. This, it seems to me, would be the effect of a contract containing no stipulation for demurrage after the expiration of the lay days. In such cases, two questions would arise; first, whether the delay beyond the lay days, proceeded from the default of the merchant; and if so, secondly, what was the amount of the damage sustained by the master, for which the merchant would be responsible. The first of those questions is incapable, in its nature, of being solved by any previous stipulation between the parties. The second may be adjusted by agreement between the parties, before as well as after it arises. Accordingly, there is usually found in every charter party, a stipulation to pay demurrage for delay; sometimes after the expiration of the lay days, sometimes without any stipulation as to lay days; as is the form of a charter party given by Beawes in his Lex Mercatoria, page 135. The natural office of a stipulation to pay an ascertained sum for demurrage, seems to be only to liquidate beforehand, the damages which the master may be entitled to claim, for a delay occasioned by the default of the merchant. The contract of the master to deliver the cargo, necessarily implies a stipulation to submit to the delay necessary for discharging the ship, in consideration of the freight agreed to be paid. To say that in case of a stipulation to pay demurrage without any lay days being agreed. on, the demurrage would be payable from the moment that the ship arrived at her port of destination and notice there Ralston, &e. 1926. of, even during the time necessary for unloading, when Nowher impediment exists, would be to contradict the implied st Brown, &c. puiation of the master aforesaid, and to render the terms of the contract inconsistent with each other. The litera! meaning of the word demurrage seems to be, a delay occasioned by the default of the merchant. The forms of charter parties, as given in Beawes' Lex Merc. 134, 135, contain stipulations, (not to pay demurrage for delay, but to pay for demurrage so much per day. These consequences, deduced from the nature of the contract, may be controlled at the pleasure of the parties, ac. cording to their agreement. Are they controlled or affected by the stipulations of the parties in this case? The charter party in this case, seems to be nothing more than an abridgment of a charter party in its usual form. I have already noticed, that there is no stipulation for the delivery of the cargo. That is necessarily implied from the nature of the contract, and from its other terms. The engagement of the owners is to take a cargo to Cadiz, without the usual exception of the dangers of the seas. Yet that exception is implied from the nature of the contract, and the owners would not have been responsible for the loss of the cargo, if it had been lost by the perils of the Neither is there a stipulation as usual, that the ship shall be staunch, well manned, and provided. Yet there was an obligation on the owners, that she should be so, implied from the nature of the contract. In the clause concerning demurrage, the usual stipulation to pay demurrage, ("if any shall be by the default of the shipper,") is omitted. But, that condition seems to me to be implied from the general agreement to pay demurrage, which is for delay occasioned by the default of the freighter. sea. But, since the parties may, by express contract, vary the consequences which result from the nature of the contract, and the merchant might bind himself to pay demurrage, no matter what was the cause of the delay, it may be argued, that the words "quarantine always excepted, pro November. V. Ralston, &c. vided it is enforced with such rigor as to prevent vessels 1826. from discharging and landing their cargoes during its continuance, and not otherwise," found in this charter party, Brown, &c. have the effect of excepting this case from the general rule; since it excuses the freighter from paying demurrage in a specified case, in which he would not have been liable under the general rule, and there was no necessity for this exception, unless he was to be liable in all other events. I think this is one of the cases, to which the maxim "expressio eorum quæ tacite insunt nihil operatur" applies, Abbott on Shipping, 242, 243; as the exception of the danger of the seas does not deprive the owner of his right to be exempted from responsibility for the goods if lost by the act of God, as by lightning; Abbott on Shipping, 295, or by pirates, Ibid. 292. Some of the cases which have led me to this view of the effect of the contract to pay demurrage, are the following: Jamieson &c. v. Laurie, 6 Bro. Parl. Cas. 474, (2d edition.) There the stipulation was to load the ship by an appointed day, and no provision for demurrage. The ship was delayed at the request of the freighter's agent, and compensation in the nature of demurrage allowed for the delay. In Stuck v. Tenant, Abbott, 233, the running days for receiving and delivering the ca. go were fixed by the charter party at 50 days, with permission to the freighter to keep her a further time upon payment of 51. per day. Upon a suit for twenty days' demurrage, the defence was, that the freighter, intending to bond and warehouse the goods, had done all that was necessary on his part for that purpose, and that the dock company had delayed to land and warehouse them. Held, that the freighter was answerable for the delay, as it would not have happened, if he had thought fit to discharge the duties, instead of giving security for the payment; and the Chief Justice thought that the freighter would have been liable, if the company had improperly refused or delayed to unload the vessel. υ. &c. 1826. I suppose that by this was meant, that if they could have November. been landed no otherwise than by the company, the freighte Brown, &c. would have been liable for their default; because the com Ralston, pany would have been liable over to him for the damage sustained. But, if the failure to unload had proceeded from the act of God, or the government, against which the freighter could have no redress, the case implies that he would have been excused; as a carrier is excused for loss by the act of God, or public enemies, but not by the act of any one responsible for his acts. So, in a case (stated in Jacobson's Sea Laws, 250,) of a charter party stipulating for lay days and demurrage, and an action for demurrage, the defence was that the unloading was prevented by ice. The decree was, "that the freighter was liable for the demurrage, unless he could prove that the discharge of the vessel was impossible;" and of course, upon such proof, he would not be liable. I have already observed, that the legal effect of a contract simply to carry and receive a cargo, in which either party would be excused from responsibility, if prevented from performing his undertaking by an irresistible necessity against which he could have no redress (as the master, by the destruction of the cargo by tempest or lightning before it was possible to carry and deliver it, or the owner, by the destruction of it before it was possible to receive it,) may be controlled by the contract of the parties. The master may bind himself, at all events, to deliver the cargo safely, and so to insure against all accidents; or the merchant may bind himself, at all events, to unload the vessel in a given time, or to answer for the consequences, if that is not done from any cause. In each particular case, the question whether either party intends so to bind himself, depends upon the particular covenants which he has stipulated to perform. Thus, in Hadley v. Clarke, the embargo of two years, which prevented the master from carrying the goods, according to his contract during that time, did not make it |