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delay caused by some default of the ship.1 The shipper is held
v. The New York N. H. & H. R. R. demurrage, notwithstanding it took
within reach of the ship's tackle, but as
Fish Scrap, 5 and accepted the delivery. Arreco v.
3. Williams 0. Theobald, 15 Fed.
“to discharge at a wharf as ordered by
A vessel was to be discharged at the
be discharged October 24th, but was Where a vessel is seized by the cus- not entirely discharged until December tom house collector, if the seizure was ist. Two days of this time the boat legal and occasioned by any act or neg- used in taking stiffening. The court held lect on the part of the master, the con- that the lay days began to run October signee will be liable for freight, only, 24th and included November 14th (alsubject to a deduction for such damages lowance being made for three Sunas he may have sustained by reason of days), and that she was held on demurthe nondelivery of the cargo because rage from and including November it was not then delivered. If the seizure 15th, and that after deducting the two was legal and occasioned by any act of days stiffening was taken the consignors the consignee, such as a neglect to pay were liable for fifteen days' demurrage. duties on the cargo, then the consignee the charter party provided that the will be liable for the full amount of vessel was “to proceed to the port of freight and perhaps demurrage, but if San Francisco, or so near thereto as the seizure was illegal the consignee is she can safely get," and was to be disliable for the full amount of freight, but charged “alongside any craft, steamer, no demurrage. Brooks v. Minturn, I floating dock, wharf or pier as may be Cal. 481.
directed by the consignees.” The conA charter party allowed eighteen days signees directed her to deliver cargo at for loading. The charterer did not be- the wharf of the San Francisco Gasgin to deliver the cargo until five days light Co. The cause of the detention after ship's arrival, but after he com- was that other vessels were unloading menced to deliver it to her it was de- at the dock and she had to wait her livered as fast as the ship loaded it. turn. Williams v. Theobald, 15 Fed. The court allowed the ship five days, Rep. 465.
and their boat is then delayed only by waiting for her regular turn, and there is no stipulation of dispatch, the lay days will not be considered as running while she is thus detained.1
If it is stipulated that in discharging the vessel she is to have "dispatch” or “quick dispatch,” the consignee is liable for any time not used in discharging the ship after he has received notice of her arrival, and he may be liable for some of the time used in discharging her if he does not receive the cargo with all the dispatch possible; ordinary dispatch is not always sufficient. The only time that can be considered as lay days is the necessary time used in unloading. A contract of this kind overrides any customary mode by which they are to take their turn at the wharf.2
But if the stipulation provides that the loading or unloading is to be with customary dispatch or in its regular turn, then the usage and custom of the port will control.3
Where it is stipulated that a vessel is to be ready and that the lay days are to begin at a fixed date, if the ship is not ready by that time the lay days do not begin to run and the charterer is not
1. 175 Tons of Coal, 9 Benn. 400. Where the cargo was to be delivered
Under a charter party where a cargo at a certain dock but the dock owners of timber was taken from Riga to the refused to allow her to discharge at Canada dock in the port of Liverpool said docks, the charterers are not liable and a stated number of days was al- until she finds a proper berth in which lowed for unloading, it was held that to discharge. Carsenego v. Wheeler, according to general law the lay days 16 Fed. Rep. 248. began from the time the vessel entered 2. Davis v. 'Wallace, 3 Cliff. 123; the dock, but that it was competent for Keen v. Andenrid, 5 Benedict; Thache the owners of the timber to show, not. v. Boston Gas Light Co., 2 Lowell 361; withstanding the fact that the ship Smith v. 60,000 Feet of Yellow Pine owner was a foreigner, that it was the Lumber, 2 Fed. Rep. 396; Kearson v. usage in the port of Liverpool that with Pearson, 7 Hurl. & N. 386; 1,100 Tons ships loaded with timber the lay days of Coal, 12 Fed. Rep. 185; Choate v. began only from the time of the mooring Meredith, i Holmes 500; Bjorkquist vi. of the vessel at the quay where by the Steel Rail, 3 Fed. Rep. 717; Sleeper v'. dock regulations she was alone allowed Puig, 17 Blatchf. C. Ct. 36. to discharge. Norden Steamship Co. The charterers are liable for any v. Dempsey, 1 L. R., C. P. Div. 654; 45 delay in causing the vessel to be disL. J., C. P. Div. 764; 24 W. R. 984. charged over and above the necessary
But when the charter stipulates that lay days, although the detention was the ship is to be brought to a particular caused by the custom house rule that dock, or so near thereto as she can safely regulated when and where the vessel get, and she is prevented from coming to should discharge, and if the parties inher primary destination by any perma- tend that the customs and rules of a nent obstacle other than an accident of port shall control as to the time of disnavigation, the ship owner is entitled to charging, they must so provide in the damages for the detention by reason of charter party. Sleeper v. Puig, 17 the charterer's refusal to receive the Blatchf. C. Ct. 36. cargo at the alternative place of de- 3. Gates v. Ryan, 37 Fed. Rep. 154; livery, although the obstacle which pre- Leideman v. Schultz, 14 C. B. 38; 24 vented her getting to the dock (viz, Eng. L. & Eq. 305; Taylor v. Clay, 9 their crowded condition) was not an Q. B. 713; Hudson v. Clement, 18 C. obstacle endangering her safety. Nel- B. 213; 36 Eng. L. & Eq · 332; Nichols son 7. Dahl, 12 L. R., Ch. Div. 568, v. Jewett, U. S. D. C. Mass., Boston 583; Ford v. Cotesworth, L. R., 4. Q. Daily Adv., March 23rd, 1857; Nichols B. 127; Cross v'. Beard, 26 N. Y. 3;. v. Tremlett, 1 Sprague 361.
obliged to fulfil his part of the agreement, for time is the essence of the contract. 1 The burden is always upon the libellant to prove a fault causing the delay.2
(c) Discharge in Two Places.-At a port where it is the usual custom for a vessel to discharge her cargo within the port in two separate parcels and at two different places, and the time arrives when the consignee is bound to accept a part delivery, the voyage is ended and both places taken together constitute the usual place of discharge and the lay days commence to run from the arrival of the vessel at the first 3 But it is otherwise where she is obliged, for the purposes of navigation, to discharge some of her cargo at the entrance of the port before arriving at the usual place of discharge. The lay days begin only when she arrives at the latter.4
And it is a question for a jury to determine in each case, from the terms of the contract and the usage of the port, whether the unloading of a part of the cargo is a partial discharge or a mere lightening 5
III. COMPUTATION OF LAY DAYS.—When the word “days” alone is used with reference to lay days or days for loading a ship, all the running or successive days are counted.6 But if the term "working days” is used, all days are counted except Sundays and holidays.? If the parties wish to further except days when the weather prevents work they use the expression “working days,” “weather working days,” or “with customary dispatch,” or some other expression which clearly indicates the intention to recognize that days of inclemency from winds and storms are also excepted.8
1. Weisser v. Maitland, 3 Sandf. (N. usual place for the commencement of the Y.) 318.
discharge. McIntosh v. Sinclair, 11 Ir. 2. A Cargo of Wooden Posts, 34 R. C. L. 56 Exch. Fed. Rep. 917
6. Pedersen v. Eugster, 14 Fed. Rep. 3. McIntosh v. Sinclair, 11 Ir. R. C. 422; Brown v. Johnson, Car. & M. 440; L. 456 Exch.
10 M. & W. 331; Brooks v. Minturn, i 4. Brereton v. Chapman, 7 Bing: 559; Cal. 481. Kell v. Adams, 10 M. & W. 498; 12 L. If the charter party provides for a J. Exch. 101. Compare Caffarein v. certain number of running days to disWalker, 1o Ir. R. C. L. Exch. 250. charge the cargo, the charterer takes
5. McIntosh v. Sinclair, 11 Ir. C. L. the risk of holidays, Sundays and other 456 Exch.
nonworking days. Davis V. PenderWhen the place of the removal of the gast, 8 Ben. 84. cargo is within the limits of the port 7. Pedersen v. Eugster, 14 Fed. Rep. and that removal from that place is so 422; Brooks v. Minturn, i Cal. 481. common as to become the foundation It was held in Pedersen v. Engster, of a binding usage to unload and de- supra, that the term had, in commerce liver at that place, and if the larger and jurisprudence, a settled and definite portion amounting to about two-thirds meaning, and when it is used in a of a ship's cargo is there delivered to charter party parol evidence will not the custody of the merchant, a jury be admitted to show that at a certain may, although the merchants attempt port any usage prevails which would to establish an inconsistent usage as to vary this legally ascertained definilay days, hold that there was a part tion. discharge and that where the unloading 8. Pedersen v. Eugster, 14 Fed. Rep. and receiving of cargoes is usual, is a 422. By the provisions in a char
When the term “running days" is used it means the days as they run day by day from the time the vessel is ready and in condition to load or unload and notice thereof has been given to the charterers or their agents."
If it is provided that the charterer shall pay, for every day's detention occasioned by his default, a specified sum, day by day, he is liable for demurrage for the whole period that the vessel is thus detained, and the days are to be reckoned as running days, and not working days, including all rainy or stormy days.2
The English courts do not seem to be harmonious as to whether the term “days” means working or running days.3
LEAD.—See note 4.
LEASE—(See also ASSIGNMENTS; COVENANTS; DEEDS; EsCROW; IMPLIED COVENANTS; LANDLORD AND TENANT).
I. Definition, 976.
V. Parol Leases, 978.
1. Date, 981.
2. Sunday Laws, 981.
ter party the charterers were to have permitting" did not apply to the time thirty working days, not includ- that the vessel was detained after the ing "rainy days,” for the purpose lay days had expired. The Oluf, 19 of loading a vessel with grain at Port- Fed. Rep. 459. land, Oreg. It was held that the term 3. Where a bill of lading stipulated "rainy days” meant such days that the that the cargo was to be discharged in rainfall prevented the loading of the a specified number of days, it was held vessel with convenience and safety, and to mean working days, and not runin determining this the actual facilities ning days. Cockran v. Retberg, 3 Esp. of the port for this purpose had to be 121, Eldron. taken into consideration.
Days in a charter party allowed for It was further held that where a con- unloading are to be reckoned consecutract was entered into at a foreign porttively. Sundays are not to be deducted to load a vessel with grain at Portland, unless it is customary. The word it was in the contemplation of law, made “days” in the absence of any custom at the latter place, and that it might be and the term “running days” mean conshown by parol evidence what was the secutive days. Brown v. Johnson, Car. condition and convenience of the port & M. 440; 10 M. & W. 331. for such loading and what was the es- 4. "Lead to the apprehension and tablished usage at that place upon that conviction of thieves." See title REsubject in order to explain the meaning WARD. and use of dubious and uncertain phrases ead Manure.-In an action of case in the contract like "rainy days.” Bal- for disturbance of a way, plaintiffs four v. Wilkins, 5 Sawyer C. Ct. 429. claimed a right for themselves, etc., on
1. Davis v. Pendergast, 16 Blackf. 565. foot to go, return, etc., and also to lead 2. The Oluf, 19 Fed. Rep. 459. and carry away manure, but proved only
Where the charter party stipulated a grant of way on foot and for horses, "to discharge as fast as the vessel can oxen, cattle and sheep. It was held that deliver to company's lighters, weather there was a variance; for the term permitting,” held that the term "weather “lead,” so used, implies a drawing on a
(6) Words Implying Such
Covenant, 1013. (c) No Implied Covenant
to Put Lessee into
Possession, 1015. (d) Covenants of War
ranty, 1015 6. Covenants to Purchase Im
provements, 1016. 7. Corenants to Erect Build
ings, 1017. 8. Express
Covenants оп Part of Lessee, 1018. (a) Covenants to Repair,
1018. (6) Covenants to Pay
Rent, 1020. (c) Covenants
to Pay Taxes, 1022. (d) Covenants to Insure,
1024. (c) Covenants as to Use
of Premises, 1025. (f) Covenants in Re
straint of Trade, 1027. (g) Equitable Interfer
9. Sealing of Lease, 987. 10. Delivery of Lease, 987. II. Acceptance of Lease, 988. 12. Recording Lease, 989. 13. Possession, 989.
14. Adverse Possession, 990. VIII. Leases by Infants, 990.
1. To Infants, 991.
Infancy, 991. 4. Disaffirmance of Becom
ing of Age, 992. 5. When Tenant May Dis
affirm, 992 6. When Infancy Does Not
Avoid a Lease, 992. 7. What Is Confirmation of
an Infant's Lease, 993.
994. XII. Leases by Agents, 995. XIII. Leases by Corporations, 997.
1. Private Corporations, 997. 2. Municipal Corporations,
998. XIV. Leases by Executors and
Administrators, 998. XV. Leases by Trustees, 998. XVI. Leases by Guardians, 998. XVII. Partnership Leases, 999. XVIII. Leases by Joint Tenants and
Tenants in Common, 1000. XIX. Conditions and Covenants,
ces, 1003 (c) To Make Repairs (see
also Landlord and
Tenant), 1003 (d) To Renew Lease,1006. (e) Perpetual Renewals,
1009. (f)Who Entitled to Ben
efit of Covenant to
Renew, 1009. (5) Lessor Excused from
Renewing, When, 1011 5. Implied Covenants in
XX. Assignment of Lease, 1029.
1. What May be Assigned, 1029.
(1030. 2. What
Interest Passes, 3. By Tenant at Will, 1030. 4. Written and Parol As
signments, 1030, 5. Lease Assigned Contrary
to Its Terms, 1031. 6. Lessee Not Released by
Assignment, 1032, 7. Assignee's Liability for
Rent, 1033 8. Assignee's Right to Sue,
and Lessee, 1034. 12. Assignment Carries Right
to Renew, 1035. (1035. 13. Assignment by Lessor, 14. Recording Assignments,
1036. 15. Foint Assignees, 1036. 16. Presumption from Posses
sion, 1036. XXI. Subleases, 1036.
1. Definition, 1036.
to Sublet, 1036. XXII. Termination and Forfeiture
(See Landlord and Tenant), 1038.