Nos. 3, 4.

Brown v. Johnson; Steamship Co. "Norden " v. Dempsey.-Notes.

It may further be noted that where the contract was that the ship should go to "Odessa or as near thereunto as she may safely get," that port consisting of an outer and an inner harbour at each of which there were quays where it was practicable for her to load, and she arrived at a point in the outer harbour where she was as near as she could safely get to a loading berth, but was required to proceed to a quay in the inner harbour where the cargo was stored, the days were held to commence on her arrival in the outer harbour, and not at the quay. Pyman v. Dreyfus (1889), 24 Q. B. D. 152, 59 L. J. Q. B. 13, 61 L. T. 724, 38 W. R. 447.

The statement that (in the absence of a custom of the port) the usual place of loading is the dock, is supported by the ruling case (No. 3), Brown v. Johnson. That case was followed in Tapscott v. Balfour, supra, where it was stipulated that the ship should proceed to any Liverpool or Birkenhead dock as ordered by the charterers and there load in the usual and customary manner a cargo of coal at the rate of 100 tons per working day. The charterers directed that she should proceed to the W. Dock at Liverpool at which coal was loaded generally from tips, but not unfrequently from lighters also. She was prevented from getting under the tips for some time after she had entered the dock; yet in an action for demurrage by the owners, it was held that the days commenced at the time of her entering the dock. The rule was also held to apply where the vessel was admitted into the dock as a matter of favour some days before the regulations of the dock authorities admitted of her reaching a discharging berth. Davies v. McVeagh (1879), 4 Ex. D. 265, 48 L. J. Ex. 686, 28 W. R. 143.

"Norden" S. S. Co. v. Dempsey (No. 4, ante) has been selected as the leading authority for the latter clause of the rule. One of the cases there relied upon was Brereton v. Chapman (1831), 7 Bing. 559, in which it was decided that the days were to be reckoned from the time of the ship's arrival at the quay, at which by the custom of the port they commenced running, and not at the entrance of the port, though she had there to discharge part of her cargo in order to reach the quay. In Kell v. Anderson (1842), 10 M. & W. 598, 12 L. J. Ex. 101, the ship was chartered to proceed to London with a cargo of coal, and five working days were allowed for discharging. On arriving at Gravesend in the port of London she was entered (as sold) for a meter, that being the usual practice, though vessels of small burden, as she was, were occasionally not so entered. She was in consequence prevented from proceeding to the Pool, which is the usual discharging place for colliers, until her turn as a metered vessel. In an action for demurrage it was held that she did not arrive at her place of delivery until she reached

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

the Pool. Reference may also be made to Hillstrom v. Gibson (1870), Court of Session Cas. 3rd Series, Vol. 8, 463; 3 Mar. Law. Cas. (o. s.) 302, 362; Nielsen v. Wait (1885), 16 Q. B. D. 67, 55 L. J. Q. B. 87, 54 L. T. 344, 34 W. R. 33; and Parker v. Winslow (1867), 7 El. & Bl. 942, 27 L. J. Q. B. 49.

In some cases it has been held that the owner has contracted himself out of such a custom. Hayton v. Irwin (1879), 5 C. P. D. 130, 41 L. T. 666, 28 W. R. 665; Horsley v. Price (1883), 11 Q. B. D. 244, 52 L. J. Q. B. 603, 49 L. T. 101, 31 W. R. 786; Allen v. Coltart (1883), 11 Q. B. D. 782, 52 L. J. Q. B. 686, 48 L. T. 944, 31 W. R. 841. In this connection reference may be made to the very recent case of Monson v. Macfarlane (C. A. 1895), 1895, 2 Q. B. 562, 65 L. J. Q. B. 57, in which the charter-party provided that a cargo of coal was "to be loaded as customary at Grimsby, as per colliery guaranty, in fifteen colliery working days." The customary loading place for colliers at that port was under a "spout" or shoot. The colliery guaranty provided that time was to count from the day following that on which notice of readiness was received. It was held by the Court of Appeal (KAY, L. J., dissenting), that the provisions of the guaranty were incorporated into the charter-party, and consequently that the lay-days began to run from the day after that on which notice was given, and not from the day after that on which the ship might have got under the spout.

The parties may also agree upon a particular wharf or quay, and in that case it will generally be necessary for the ship to arrive there. Bastifell v. Lloyd (1862), 31 L. J. Ex. 413; Strahan v. Gabriel, cited by Lord ESHER in Nelson v. Dahl, p. 235, post; Murphy v. Coffin (1883), 12 Q. B. D. 87, 32 W. R. 616; Harris v. Jacobs (C. A. 1885), 15 Q. B. D. 247, 54 L. J. Q. B. 492, 54 L. T. 61; The Carisbrook (1890), 15 P. D. 98, 59 L. J. P. 37, 62 L. T. 843, 38 W. R. 543; Tharsis Sulphur Co. v. Morel (1891), 1891, 2 Q. B. 647, 61 L. J. Q. B. 11; 65 L. T. 659, 40 W. R. 58; 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; Bulman v. Fenwick (C. A. 1893), 1894, 1 Q. B. 179, 63 L. J. Q. B. 123, 69 L. T. 651, 42 W. R. 326.

AMERICAN NOTES.

Both principal cases are cited in 5 Am. & Eng. Enc. of Law, p. 547. "Lay-days, by the general rule, do not commence until the vessel has arrived at the usual place for unloading." 1 Parsons on Shipping, p. 313, citing Brown v. Johnson.

The first branch of the rule is laid down, citing the first principal case, in Gronstadt v. Witthoff, 15 Federal Reporter, 265 (citing Sleeper v. Puig, 10 Benedict (U. S. Circ. Ct.), 181; Aylward v. Smith, 2 Lowell (U. S. Circ. Ct.), 192; Hodgson v. N. H., &c. R. Co., 46 Connecticut, 276; 33 Am. Rep. 21; The Grafton, Olcott (U. S. Circ. Ct.), 49; Irzo v. Perkins, 10 Federal Reporter,

Nos. 3, 4.

- Brown v. Johnson; Steamship Co. "Norden v. Dempsey.-Notes.

779; Moody v. Laths, 2 ibid. 608); the second principal case is cited therein at p. 270.

In Sleeper v. Puig, supra, it is said: "It has been said that 'lay-days by the general rule do not commence until the vessel has arrived at the usual place for unloading.' (1 Parsons Shipping and Admiralty, 313.) But this does not necessarily mean the very place where the cargo is to be discharged, although it is doubtless the duty of the master, where no place of discharge is designated, to proceed to the place to be designated by the consignee or charterer, provided it be a usual and proper place for discharge within the port of destination." Citing Brown v. Johnson. "In the present case the vessel appears to have been brought into the usual place of anchorage near the mole, where vessels await their turn for discharging at the mole. . . . I think upon the whole the case is within the rule laid down in Brown v. Johnson."

...

In Hodgson v. N. H., &c. R. Co., supra, where the ship was unable to come to any wharf by reason of ice, demurrage was denied. Citing Aylward v. Smith, supra, to the same effect.

The Norden case is cited in Lawson on Usages and Customs, p. 409.

Where it is a custom of the port to unload at an elevator, each vessel awaiting its turn, this custom becomes part of the contract in the absence of express provision. The Glover, 1 Brown Admiralty (U. S. Circ. & Dist. Cts.)

166.

In the absence of specific agreement as to the particular place of unloading, or any known custom of the port, the shipper or his agent must be there ready to receive the cargo on notice of arrival. Wordin v. Bemis, 32 Connecticut, 268.

A clause of a bill of lading providing for lay-days to commence twentyfour hours after arrival and notice to the consignee, and demurrage for detention thereafter, while requiring the consignee to be ready to receive the cargo at the expiration of twenty-four hours from notice, does not relieve the vessel from being ready to deliver at a safe selected berth which can be safely reached, and the master is responsible for any delay in bringing the vessel to such berth. Smith v. Lee (U. S. Circ. Ct. App. 1st C.), 66 Fed. Rep. 344.

A bill of lading by which the vessel promised to deliver coal at a certain port to a consignee carrying on his business upon a coal wharf at such port, is not an express undertaking to deliver at such wharf, where the delivery is to be made to such consignee or his assignees. Smith v. Lee, U. S. (Circ. Ct. App. 1st C.) 66 Fed. Rep. 344.

WHERE under a contract of affreightment (whether bill of lading or charter-party) a certain number of lay-days are allowed, and a stipulation is made for a certain sum per day demurrage afterwards, there is an implied contract by the person liable on the contract of affreightment, that he will take the risk of any ordinary vicissitudes which may occur to prevent his releasing the ship at the expiry of the lay-days. The principle applies equally to the consignee of goods shipped on general ship under bill of lading, as to the charterer under charterparty; and applies to delay by reason of the conduct of owners of other goods, as well as to the ordinary risks of weather.

Leer v. Yates; Leer v. Cowell; Leer v. Gorst.

3 Taunton, 387-393 (s. c. 12 R. R. 671).

Demurrage. Delay caused by Strangers.

A general ship took brandies on board, under bills of lading, which [387] allowed 20 lay-days for delivery of the goods in London, and stipulated for £4 per day demurrage afterwards. Certain of the consignees choosing to have their goods bonded, the vessel could not make her delivery at the London docks until 46 days after the 20 days; some of the goods, which were undermost, could not, though demanded, be taken out till the upper tiers were cleared: held, that each of those consignees was liable, on a general count for demurrage, pay the £4 per day for the 46 days.

to

The plaintiff in each of these causes declared in assumpsit, complaining that the defendant had promised to take out of the plaintiff's ship, within a reasonable time after her arrival, certain brandy which the plaintiff had brought for him to London, but neglected

No. 5.- Leer v. Yates, 3 Taunt. 387, 388.

so to do, whereby his vessel was detained. Another count alleged a promise of the defendant to take out the brandy within a reasonable time after notice to the defendant of the ship's arrival, and the third count was indebitatus assumpsit for the use of the ship Mariana of Hamburgh, whereof the plaintiff was master, by the defendant retained and kept on demurrage with certain goods on board, for a long time, at the defendant's instance.

The defendants, Yates and Gorst, pleaded the general issue: the defendant, Cowell, paid into Court on the third count the sum of £16, upon a computation of the share which each of the several freighters who had put goods on board must have contributed, in order to make up one sum of £4 per day between them, if all had become liable to demurrage.

[* 388]

The

Upon the trial of these causes, at Guildhall, at the sittings after Trinity term, 1810, before MANSFIELD, C. J., it appeared that the master of the vessel, which was a general ship, having a British license, had taken on board at Bourdeaux the goods consigned to the several defendants, and also goods for many other consignees, and had signed and delivered to each of the shippers a bill of lading, whereby he acknowledged "the shipping on board the Mariana of the goods," (describing them) "to be taken out in twenty days after arrival or to pay four pounds per day demurrage:" the bill of lading limited the master's responsibility by containing the usual exception of " the act of God, the King's enemies, fire, all dangers of the seas, rivers, and navigation, save risk of boats, so far as ships are liable thereto." Mariana arrived in the London docks on the 17th of June. If all the consignees would have paid the duty on their respective goods, the vessel might have been speedily discharged at other licensed wharfs, which were open for that purpose, but they all preferred bonding their brandy, and the quays and warehouses of the dock, at which alone bonded goods could be landed, were at that time so full, that there was not room to receive more goods to be bonded, in consequence of which, and of the number of vessels then waiting to discharge their cargoes, the vessel was detained until the first of September, before the other vessels which lay between the Mariana and the quay had been discharged, and before it came to her turn to be unloaded, and to have her cargo received into the warehouses. Eighty puncheons of brandy, which were delivered on that day, lay above the defendant's casks, and their