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No. 3.-Brown v. Johnson, 10 M. & W. 331.

In the absence of a special custom of the port, a ship is at its usual place of discharge when she has entered the dock, and is given in charge of the dock officer. But by the custom of the port the usual place of discharge may be narrowed to the wharf or quay where cargo of the description carried is usually discharged; and in that case the ship is not arrived until she is moored at such wharf or quay.

Brown v. Johnson.

10 Meeson & Welsby, 331-334, (11 L. J. Ex. 373.)

Demurrage. Charter-Party. - Lay-Days.

By a charter-party made in London, upon a vessel for a voyage from [331] London to Honduras and back to some port in the United Kingdom, 25 running days for every 100 tons of mahogany were to be allowed for loading the ship at Honduras, and 15 days for discharging at the destined port in the United Kingdom, Held, that in the absence of any custoin, Sundays were to be computed in the calculation of the lay-days at the port of discharge.

The ship arrived at Hull, the port of her destination, on the 1st of February, and was reported; on the 2nd, she entered the dock, and was given in charge of the dock-officer, but did not get to the place of unloading till the 4th, in consequence of the full state of the docks, the officer refusing to take her out of her turn; and the discharge was not completed till the 22nd, Held, that the lay-days were to be calculated from the period of her arrival in dock, and not at the place of unloading.

Declaration by the plaintiff, as owner, against the defendant, as charterer, on a charter-party of the ship Trinidad, from London to Honduras, there to load at one of the usual places of loading, including the rivers Ulna and Dulce, a cargo of mahogany, and then proceed to some port in the United Kingdom; twenty-five running days for every hundred tons of mahogany to be allowed the defendant, if the ship were not sooner dispatched, for loading the said ship at Honduras, and fifteen days for discharging at her destined port in the United Kingdom, and thirty days on demurrage, over and above the said laying days, at £6 per day. Among other breaches, the declaration alleged, that the ship being ordered to Hull upon her return, by the defendant, he would not discharge the cargo at the said port of Hull within the said number of fifteen days in the charter-party mentioned, but detained the vessel after

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she was ready to discharge her cargo, and the defendant had notice of it, for the space of six days over and above the said fifteen laying days mentioned in the said charter-party, whereby a demand for demurrage arose.

To this the defendant pleaded, amongst other pleas, that he did not detain the vessel above the said fifteen laying days, in the said charter-party in that behalf mentioned; and also, that he was prevented from unloading by the wrongful act, procurement, neglect, and default of the plaintiff, and his servants and agents; whereupon issues were joined.

At the trial before ALDERSON, B., at the Sittings in Lon[* 332] don * in this term, it appeared that, the charter-party having been entered into in London, the ship proceeded on her voyage, and arrived with her cargo at Hull, the port of destination, on the 1st of February, 1841, and was reported. On the 2nd she entered the dock, and was given in charge of the dock officer, but did not get up to the place of unloading till the 4th, in consequence of the full state of the docks, the dock officer refusing to take the ship out of her turn, and the discharge was not completed till the 22nd. The defendant's counsel called several witnesses to prove that, by the usage of the trade at Hull, the word days" meant "working days;" but this they failed to establish. There was evidence that the plaintiff had been dilatory and negligent in the unloading; and the learned Judge, in his summing up, directed the jury, that the period from which the lay-days was to commence was the day of her coming into the dock, and not of her coming to her berth, and that Sundays were to be included in the lay days. The jury found a verdict for the plaintiff for £18 for demurrage, declaring that they had included Sundays in their computation of the time allowed for unloading.

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Jervis now moved for a new trial on the ground of misdirection, on two points. -First, Sundays ought not to have been included in reckoning the lay-days. This was evidently the intention of the parties, from their making a distinction between running days and lay-days. It may be assumed that the parties contemplated that nothing could be done in England on a Sunday for the purpose of discharging the cargo, as it would be contrary to law. This charterparty was entered into in London; and in Cochran v. Retberg, 3 Esp. 121, where there was a clause in the bill of lading that the cargo should be taken out in a certain number of days, it

No. 3.-Brown v. Johnson, 10 M. & W. 333, 334.

was found that, by the usage of *trade in the city of Lon- [* 333] don, the term "days" means only working days, not run

ning days. And in Abbott on Shipping, p. 180, 5th ed., it is laid down thus: "The word 'days,' used alone in a clause of demurrage for unlading in the river Thames, is said to be understood of working days only, and not to comprehend Sundays or holidays. by the usage among merchants in London," for which the author cites Cochran v. Retberg: undoubtedly he adds that it is better to mention working or running days expressly. The object for making a distinction between the days to be counted at the port of loading and that of discharge must be apparent to every one. At the former there is no prohibition against working on Sundays, and the owners are at a greater expense, the ship at the time of loading having her full complement of men; whereas, at the port of discharge, a prohibition as to working on Sundays does exist, and her discharge could not proceed on that day; the crew, likewise, would be discharged, and only lumpers, who would receive no wages for that day, would be employed. Secondly, the laydays ought not to have been calculated from the time when the ship got into dock, and into the conduct of the dock officers, but only from the time when she got to her berth in the dock. The lay-days are stated to be for "discharging," which means fifteen days which can be employed for that purpose. Here there was no possibility of unloading the vessel until the 4th, when she got to her place of unloading, and the days ought not to have been calculated before that time. In Brereton v. Chapman, 7 Bing. 559, 5 Mo. & P. 526, it was held that the lay-days allowed by a charterparty for a ship's discharge were to be reckoned from the time of her arrival at the usual place of discharge, and not at the port merely. Here the days might just as well have been reckoned from the time of entering the port. - [ALDERSON, B. [* 334] I acted upon the authority of Randall v. Lynch, 12 East,

181 (11 R. R. 340), and Brereton v. Chapman, and said that the period ought to commence from the time the ship came into the dock, and was in charge of the dock officer, who would not take her out of her turn: the delay which then arose was inevitable, and neither party was in fault. I think some stipulation ought to have been made against such an accident, if those days were not to be counted. I did not say that they were chargeable from the entry into the port of Hull, but from the time of her coming

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The Steamship Company "Norden" v. Dempsey, 1 C. P. D. 654.

into dock. If the place in the docks is the point, I was wrong; the dock, I was right.]

if

Lord ABINGER, C. B. My opinion is, that the lay-days under this charter-party commenced from the time of the vessel's coming into dock; it had then arrived at its usual place of discharge. They certainly did not commence at the period of its entering the port, as that might be very extensive; for instance, Gravesend is part of the port of London. Then, with respect to the days, I think the word "days" and "running days" mean the same thing, viz. consecutive days, unless there be some particular custom. If the parties wish to exclude any days from the computation, they must be expressed.

The rest of the Court concurred.

Rule refused.

The Steamship Company "Norden" v. Dempsey.

1 C. P. D. 654-663 (s. c. 45 L. J. C. P. 764; 24 W. R. 984). Demurrage. Charter-Party. - Lay-Days. - Local Custom.

[654] Timber was consigned, under a charter-party made at Riga, to the Canada Dock in the port of Liverpool, a given number of days being allowed for unloading there:

Held, that, by the general law, the lay-days commenced from the time the ship arrived in the dock; but that it was competent to the consignee to show, notwithstanding the plaintiff was a foreigner, that there was a custom in the port of Liverpool, that, in the case of timber ships, the lay-days commenced only from the mooring of the vessel at the quay where by the regulations of the dock she was alone allowed to discharge.

Action for demurrage upon a charter-party and bills of lading made at Riga, in the following terms:

It is this day mutually agreed between the undersigned F. H. Holm, merchant of this town, on the one part, and C. Michelsen, master of the steamship Pamona, on the other, That the said ship, being tight, staunch, and every way fitted for the voyage, and being also provided with the necessary ship's documents, shall receive and load from the merchant a full and complete cargo and deck-cargo, not exceeding what she can reasonably stow and carry, consisting of square half fir sleepers, and, being so loaded, shall with all convenient speed proceed from Mühlgraben to Liverpool, or so near thereunto as she may safely get, to deliver there the said cargo always afloat, according to the tenor of the bills of lading. After due delivery of the same in good order and well conditioned (all dangers and accidents of the seas and rivers,

No. 4. The Steamship Company "Norden

v. Dempsey, 1 C. P. D. 654, 655.

&c., excepted), the receivers shall pay to the captain or to his order for freight for each load of 50 cubic feet, customs' calliper measure, square half sleepers, 17s. 6d. British sterling; deck-cargo to pay full freight; captain to receive £5 sterling in gratuity; all in sterling money of Great Britain; one half in cash, and remainder in approved bills on London at three months' date, or less bank discount at captain's option, without any delay or deduction whatsoever. The cargo is to be loaded and discharged together in ten working days, or for every day longer detained the captain to receive demurrage at the rate of £40 sterling per day; and to be delivered here alongside of the vessel, and at port of delivery to be taken from alongside free of expense to the ship.

Steamer to be free of address at port of discharge, but to be cleared at the custom-house, Riga, by P. Bornholdt, on usual terms. Sufficient cash for ship's disbursements to be advanced on account of freight, on usual terms. The ship is expected discharged at Surnimünde on the 25th of August instant. A commission of 2 per cent. on amount of freight is due by the ship on signature of this agreement to P. Bornholdt & Co. And, for the due performance, &c. Dated at Riga, this 12/24th day of August, 1875.

*In the margin was the following memorandum:

[* 655]

Discharging dock to be ordered on arrival of steamer at Liverpool. Steamer to clear at Liverpool by R. Heyn, jun., paying usual reporting fee only.

The sleepers were shipped under two bills of lading. The first was as follows:

Shipped in good order and well conditioned by F. H. Holm, in and upon the good ship called the Pamona, S. S., whereof is master for the present voyage C. Michelsen, and now riding at anchor in the river of Riga, and bound for Liverpool to such dock as ordered on arrival, 8125 red wood sleepers of 5 × 10 813 feet long, being marked and numbered as in the margin, and are to be delivered in like good order and well conditioned at the aforesaid port of destination (the act of God, &c., expected), unto order or assigns, he or they paying freight for the said goods, and all other conditions as per charter-party, with primage and average accustomed. Dated in Riga the 18/30 August, 1875.

In the margin were these words, "Two days expended in loading this parcel." The second bill of lading, dated "Riga, the 21 August, 2 September, 1875," was in the like terms, but for 12,801

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