No. 4. The Steamship Company "Norden v. Dempsey, 1 C. P. D. 660, 661.

said port of destination unto order or assigns, he or they paying freight for the said goods and all other conditions as per charterparty." The charter-party was made at Riga. The ship was to proceed from Mühlgraben to Liverpool, or so near thereto

as she might safely get, to deliver there the cargo always [* 661] afloat according to the tenor of the bills of lading. The charter-party contained the following clause: "The cargo is to be loaded and discharged together in ten working days, or for every day longer detained the captain is 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." In the margin of the charter-party was the following memorandum, "Discharging The ship

There are

dock to be ordered on arrival of steamer at Liverpool." arrived at Liverpool on the 12th of September, 1875. two docks in the port of Liverpool in which timber ships are unladen, viz., the Canada Dock, and the Brunswick Dock. The vessel in question was ordered to the former of these docks, and she arrived there on the 13th; but she could not for some days. obtain a quay berth. It must be taken that a cargo of this description is not allowed to be unloaded in the Canada Dock except at a quay berth. The question was, whether the lay-days. were to be counted from the arrival of the ship in the Canada Dock or only from the time of her getting to a berth alongside the quay. The defendant's counsel proposed to ask this question, "Is there any custom in the port of Liverpool, with regard to ships in the timber-trade, as to when they are deemed to have arrived at their usual place of discharge?" This was for the purpose of obtaining information, to show that timber-ships in the Canada Dock are not allowed to commence unloading until they get a quay berth, and that by the usage of the port the lay-days reckon only from that time. The question was objected to, and was disallowed. Upon showing cause against the order for a new trial upon the ground that the question was improperly disallowed, it was argued by Mr. Cohen that the question was inadmissible, for several reasons. In the first place he contended that, upon the true construction of this charter-party, the tendency of the proposed question was to contradict the contract, for that, by reason of the marginal entry, the final destination of the ship was a dock to be named, and therefore the place of arrival was the Canada Dock,

No. 4.- The Steamship Company "Norden v. Dempsey, 1 C. P. D. 661, 662.

the dock to which the ship was ordered on reaching the Mersey; and that to allow a question as to a custom of the port for [* 662] * interposing a particular part of that dock as the place of arrival, would of necessity contradict the words of the charter-party. He then argued that, assuming the question to be admissible and proper if the charter-party had been a Liverpool charter-party, it could not be so in this case because the charterparty was made at Riga. He further argued that, even though an Englishman might be bound by such a custom in the case of a charter-party made abroad, evidence of the custom could not be received where one of the parties to the contract was a foreigner. He further argued that the evidence was inadmissible because it professed to set up a custom of the port of Liverpool as to unloading, not as applicable to the whole port or to all trades, but as applicable to a particular part of the port and to a particular trade only.

As to the first point, whether the proposed question would add to or vary the terms of the charter-party, if that was the effect of it I think it was inadmissible. This charter-party was made at Riga. To attempt to vary it by showing a custom of the port of Liverpool, evidence of which would be admissible only upon the supposition that it was known to both parties to the contract, could not be allowed. I do not accede to the proposition that there is any distinction in this respect where one of the parties to the contract is a foreigner. But I do not think the proposed question has the effect of varying the terms of this charter-party. The contract is, to carry the cargo to Liverpool, a certain number of days being allowed for loading the ship at the port of loading and for unloading her at the place of discharge. Here, Liverpool is the place of discharge. The question therefore is, what is the meaning of "Liverpool"? It is not contended that the vessel arrived at Liverpool the moment she entered the Mersey, but only when she entered a Liverpool dock, when she had arrived at a place where according to the custom of the port she was considered as an arrived ship. It is then only that the lay-days are to commence. If when she has so arrived she cannot, either by reason of the crowded state of the dock or of the regulations of the dock, commence unloading at once, this will not affect the rights of the ship-owner if she be an arrived ship. If she be an arrived ship when she gets into the Canada Dock, the rights of the

Nos. 3, 4.-Brown v. Johnson; Steamship Co. "Norden" v. Dempsey.

owner upon a contract made at Riga cannot be affected [* 663] by any regulations of the dock authorities at Liverpool as

to the time or mode of unloading. That is settled by Brown v. Johnson and Kell v. Anderson. Randall v. Lynch is no authority to the contrary of what we are now deciding: and I think Brereton v. Chapman, 7 Bing. 559, is an authority in support of it. Practically, the very question now objected to was asked there. I think the question was admissible because it was a question tending to solve the fundamental question, when was the ship an arrived ship?

Lord COLERIDGE, C. J. My Brother LINDLEY desires me to say that he concurs in this judgment.

Order absolute for a new trial.

ENGLISH NOTES.

Where the expression "lay-days" or "days" occurs in a charterparty, without qualification, it means, in the absence of any special custom, running or consecutive days. Brown v. Johnson, No. 3, p. 201, supra; Niemann v. Moss (1860), 29 L. J. Q. B. 206, 6 Jur. N. S. 775. An example of such a custom is seen in Cochran v. Retbergh (1800), 3 Esp. N. P. Cas. 121, according to which, in the port of London, "days" means working days not including Sundays or holidays. The meaning of the expression may also be controlled by the context. The Commercial Steamship Company v. Boulton (1875), L. R., 10 Q. B. 346, 44 L. J. Q. B. 219, 33 L. T. 707, 23 W. R. 854. See also Harper v. M'Carthy (1806), 2 Bos. & P. (N. R.) 258.

The expression "working days" has been dealt with in several cases. In Thiis v. Byers, No. 6, p. 225, post (3 Taunt. 387, 12 R. R. 671), it was held that it did not exclude days on which bad weather interfered with the discharge of the cargo. And in Holman v. Peruvian Guano Company (1878), Court of Session, Scotland, 4th Series, Vol. 1, 657, it has been held not to exclude days on which loading and discharging in a foreign port could not be carried on on account of the surf, and on which by local custom such work was stopped by order of the captain of the port. See however Harper v. M'Carthy,

supra.

"Running days," like days, or lay-days mean consecutive days; Nielsen v. Wait (1885), 16 Q. B. D. 67, 55 L. J. Q. B. 87, 54 L. T. 344, 34 W. R. 33, more fully cited in notes to Nos. 8 & 9, p. 268, post. Where separate periods are allowed for loading and unloading, time saved in unloading cannot be set off against time lost in loading. Marshall v. Bolckow (1881), 6 Q. B. D. 231, 29 W. R. 792.

Nos. 3, 4.- Brown v. Johnson; Steamship Co. "Norden

Where a certain number of running days are provided, the days mentioned, unless controlled by the context, are calendar days, extending, that is, from midnight to midnight, and not periods of twentyfour hours; and the consignee is entitled to whole days to the number specified. The Katy (1894), 71 L. T. 709. But if the ship begins to discharge or completes discharging in the middle of a day, the portion of the day so occupied will be counted as a whole day. The Katy, supra; The Commercial Steamship Company v. Boulton, supra. See also Hough v. Athya (1879), Court of Session, Scotland, 4th Series, Vol. 6, p. 961.

Where demurrage or dispatch money is to be paid at so much per day, each day will be regarded as a day of twenty-four hours. Laing v. Holloway (1878), 3 Q. B. D. 437, 47 L. J. Q. B. 512, 26 W. R. 769.

Where no express time is provided for loading or unloading, the law implies that a reasonable time is intended. Nielsen v. Wait (1885), 16 Q. B. D. at p. 70. A reasonable time for loading is not the same as a reasonable time for unloading.

With regard to loading, the merchant must furnish a cargo in a time which is reasonable in ordinary circumstances. Harris v. Dreesman (1854), 23 L. J. Ex. 210; Adams v. Royal Mail Steam Packet Company (1858), 5 C. B. (N. S) 492, 28 L. J. C. P. 33; Postlethwaite v. Freeland (H. L. 1880), 5 App. Cas. 599, 619, 620, 49 L. J. Ex. 630, 42 L. T. 845, 28 W. R. 833.

The merchant will be required to unload, however, in a time which is reasonable in existing circumstances; that is to say, he is bound in each case to do his part of the work with reasonable diligence. Postlethwaite v. Freeland, supra; Burmester v. Hodgson (1810), 2 Camp. 488, 11 R. R. 776; Ford v. Cotesworth (1868), L. R., 5 Q. B. 544, 39 L. J. Q. B. 188, 23 L. T. 165, 18 W. R. 1169; Hick v. Raymond (1892), 1893, App. Cas. 22, 62 L. J. Q. B. 98, 68 L. T. 175, 41 W. R. 384; and see Wright v. New Zealand Shipping Company (C. A. 1879), 4 Ex. D. 165 n., 169, 40 L. T. 413.

The time to be allowed is also indicated by various indefinite phrases, some of which have been judicially considered. Thus an agreement to load with the usual dispatch means with the usual dispatch of persons who have a cargo ready at the dock for loading. Kearon v. Pearson (1831), 7 Hurl. & N. 386, 31 L. J. Ex. 1, 10 W. R. 12; Ashcroft v. Crow Orchard Colliery Co. (1874), L. R., 9 Q. B. 540, 43 L. J. Q. B. 194, 31 L. T. 266, 22 W. R. 825. And where the ship was "to be discharged with all dispatch as customary" and the discharge was delayed owing to a strike of dock labourers employed by the dock company, which by the custom of the port did the work of discharge for both the owners and the charterers, it was held that the latter were not liable,

Nos. 3, 4. — Brown v. Johnson; Steamship Co. "Norden v. Dempsey.

the words meaning that the cargo was to be discharged with all reasonable dispatch having regard to the circumstances and the customary mode of discharging, Castlegate Steamship Co. v. Dempsey (1891), 1892, 1 Q. B. 854, 61 L. J. Q. B. 620, 66 L. T. 742, 40 W. R. 533: and where the cargo was to be discharged with the customary steamer dispatch of the port" but any time lost by strikes was not to count, the latter clause was held to except the charterers from liability in respect of a strike which prevented the steamers from being discharged in the customary manner. The Alne Holme (1893), 1893, P. 173, 62 L. J. P. 51, 68 L. T. 862, 41 W. R. 572.

Where a ship was to be discharged as fast as she could deliver at a dock, by the custom of which the work of discharging was done by the dock company acting for both shipowner and charterer, it was held that the customary mode of discharge was implied, and that the charterers were not liable for the company's delay. The Jaederen (1892), 1892, P. 351, 61 L. J. P. 89, 68 L. T. 266. Where a charter-party provided that a steamer was to take a cargo to Hamburg "to be discharged at usual fruit berth as fast as steamer can deliver, as customary," it was held that the words "as customary "referred to the speed as well as to the mode of delivery. So that the cargo had to be unloaded as fast as the custom of the port would allow, and therefore that the merchants were not liable for delays caused by the custom. Good v. Isaacs (C. A. 1892), 1892, 2 Q. B. 555, 61 L. J. Q. B. 649, 67 L. T. 450, 40 W. R. 629.

A provision that the ship shall load" in the customary manner does not apply to difficulties in getting the cargo to the place of loading. Adams v. Royal Mail Steam Packet Co. (1858), 5 C. B. (N. S.) 492, 494, 28 L. J. C. P. 33; Tapscott v. Balfour (1872), L. R., 8 C. P. 46, 42 L. J. C. P. 16, 27 L. T. 710, 21 W. R. 245; Nelson v. Dahl (C. A. 1879), 12 Ch. D. 568, 588.

It may here be noted that when a ship is chartered to load at a particular port, the charter-party is to be taken to have reference to the customary mode of loading at that port. Smith v. Rosario Nitrate Co. (C. A. 1893), 1894, 1 Q. B. 174, 70 L. T. 68.

The first clause of the above rule is well established, and is recognised expressly or by implication in the ruling cases and the authorities. cited below. Thus in Tapscott v. Balfour (1872), L. R., 8 C. P. 46, 42 L. J. C. P. 16, 27 L. T. 710, 21 W. R. 245, BOVILL, C. J., says, "The rule is that when a port is named in the charter-party as the port to which the vessel is to proceed, the lay-days do not commence upon the arrival of the vessel in the port, but upon her arrival at the usual place of loading in the port." See also McIntosh v. Sinclair (1877), 11 Ir. R., C. L. 456.