No. 7.- Dahl v. Nelson, 6 App. Cas. 44, 45.

order to admit, it was an unreasonable delay, which would discharge the underwriters, but otherwise if the delay was on account of the ice. That authority seems to point the same way. I do not, however, pronounce any decision on this, as it is not the case now before the House. I only mention it to prevent it being said that what I now say would be applicable to such a case.

But where, as in this case, the dock is named from the beginning by both parties, I think the refusal of the dock authorities to let the ship inside the dock gates is the fault of neither party. They ought to have foreseen that it might happen that the dock company would, owing to the exigencies of their traffic, refuse to admit a steamer for some time; in fact, it appears, from the evidence, that before the charter-party was made both parties knew that the number of timber-laden steamers was so unusually great at this time that it was very likely to happen that they would refuse for a long time. They might have made any new provision on which they could agree. If they had in terms said that, in the event of something for which neither party was responsible rendering it impossible to get into the dock at all, or without a delay so great as to render it unreasonable to wait, the shipowner would, unless excused by some of the excepted perils, bring his ship to a discharging place in London, as near as might be to the dock, and deliver there, and that the merchant should take

*

the cargo there and pay the freight, I think they would [* 45] have come to as prudent an arrangement as could well be

devised. They preferred to keep unaltered the old form, "or so near thereto as she may safely get," and be bound by whatever the legal effect of that might be. Before proceeding farther I think it convenient to see what, on the evidence, were the facts on this part of the case.

The practice of the Surrey Commercial Docks was to give orders for the admission of steamers to their docks to discharge there, which were, in practice generally, on the application of the charterer or his representative, made either before or after the arrival of the steamer. By giving such an order the dock company agreed to admit the steamer, and on the production of the order, after the arrival of the steamer, it was, as soon as practicable, admitted into the docks. The company, in practice, limited the number of the orders to so many steamers as they at the time thought they could accommodate with discharging berths.

No. 7. — Dahl v. Nelson, 6 App. Cas. 45, 46.

On the 16th of July, Messrs. Dahl, having probably heard by telegraph that the Euxine was about to start, applied for an order for the admission of the Euxine. The superintendent of the docks, Mr. Ross (who died before the trial), wrote the two following letters: "19th July, 1877. Gentlemen, Referring to the inclosed orders for the steamships Euxine and Chatsworth, I beg to inform you that, on looking over the list of Gravesend orders I have accepted, I fear I have rather exceeded the number of steamers for which I can safely provide accommodation during the months of July and August. Under these circumstances you may, perhaps, think it advisable in your interest to arrange for the vessels to be discharged elsewhere." "25th July, 1877. Gentlemen, I much regret to be again compelled to return the indorsed order for the Euxine' (S.) from Soderhamn, but on going round the docks to-day I find my position is even worse than I anticipated. The quays are so loaded with goods that it will be impossible for me to afford the vessel anything like the usual steamboat despatch."

On the arrival of the Euxine the ship's agents applied to the dock company to take the vessel, but were refused. It appears, on the evidence, that there was plenty of room inside the [* 46] dock *for the Euxine to lie afloat, but that the company would not admit any steamer until there was a prospect of being able, within a reasonable time, to give it a discharging berth. The legal advisers of the defendant thought (whether correctly or not it is not necessary to decide) that if once admitted within the dock gate the merchants would be answerable for all subsequent delay, and the defendant pressed Mr. Griffin, the secretary of the dock company, not to let the Euxine enter the docks until they could give her a discharging berth. The secretary, to relieve his mind, on the 7th of August sent a telegram to the superintendent in these terms: "Can you give Euxine immediate discharging berth? If not, on no account admit steamer into dock."

This was relied on by the plaintiffs as proving that the defendant hindered the steamer from entering the dock. But it is clear, from the evidence of Mr. Griffin (the dock secretary), that the dock authorities, in their discretion, refused to admit any steamers other than those they had already engaged for (though there was plenty of room for them to lie without discharging), until there was a prospect of giving it a discharging berth, and that he refused

No. 7. Dahl v. Nelson, 6 App. Cas. 46, 47.

to admit the Euxine, on the 7th of August, because he could not then give the steamer a discharge berth, and not on account of the defendant's request, and, on being asked the question expressly, he says that he had no prospect of being able to give a berth after a short delay, or within any reasonable time. The dock authorities, it seems to me, acted very properly and prudently in what they did, but even if they were wrong, the defendant was not responsible for this.

Though the secretary must, at the time he gave his evidence, have known when, as it really turned out, a steamer arriving on the 7th of August could have had a discharging berth, neither side asked that question. He does say that, if it had been admitted into the dock to lie afloat, it would in the then state of the traffic, have been five weeks before the ship could have been discharged into lighters there, from which it would seem that it would have been longer before it could have got a discharging berth, and, as demurrage was at £30 a day, it is obvious that the consequences of the delay would have been serious. I may observe that the anxious desire of the defendant that the steamer * should [* 47] not be admitted within the dock gate, when he believed (whether rightly or wrongly) that the doing so would fix him with the cost of the delay, is evidence that he believed the delay would be important.

The plaintiff's legal advisers wrote to the defendant the following letter, and received the following answer: "7th August, 1877. We are instructed to inform you that the ship, Euxine, chartered by you, is in this port ready to discharge. The Surrey Commercial Docks Company have declined to allow the vessel to enter their dock, as they, we learn, intimated to you several days. ago. The ship's lay-days begin to-morrow. Should she not be discharged by you with the usual despatch, you will be held answerable for demurrage. Your lighters should be alongside, as you have been already informed, by the first thing to-morrow morning. The cargo would be discharged in two or three days. This notice is given you that you may take such steps as you think right to expedite the unloading of the ship." Re Euxine, 8th August, 1877. Our legal advisers tell us to say, in reply to your favour of yesterday, that: The ship is chartered for the Surrey Commercial Docks, and that when the vessel is there we will be prepared to fulfil your client's contract with us, and take

No. 7. — Dahl v. Nelson, 6 App. Cas. 47, 48.

delivery of the cargo. The notice given by you is one which you have no power to give, and which we are not called upon to obey. If the captain enters into a contract to go to a particular dock, he must go there, and it is no business of the receivers that the dock at the time of his arrival is full and cannot take him in. He must wait till there is room." Some attempts were made to come to an amicable settlement, which unfortunately failed, and both parties stand on their legal rights. It is perfectly plain to my mind that the ship did not fulfil the primary engagement in the charter-party to proceed to the Surrey Commercial Docks by merely proceeding to the gate of that dock, but if, under the cir cumstances, the ship had, on the 7th of August, fulfilled the alternative of proceeding "as near thereto as she may safely get," the merchant was, by his agreement, to take the cargo from alongside at his risk and expense, and there is no reason why he should not have to bear all the damage occasioned by his refusal to [* 48] comply with the request contained in the letter of the *7th

of August to send lighters alongside, which, on the assumption that she had got as near thereto as she could safely get, was what he had undertaken to do.

Two questions arose on these points: 1. Whether the Euxine could have got into the dock without such a delay as would have been unreasonable, taking into account the nature of the transaction and the interests of both parties. That was one of fact, to be determined on the evidence. 2. Whether, supposing that fact to be found in favour of the plaintiffs, the Euxine had got as near thereto as she might safely get, within the meaning of the contract. That was a question of law, depending on the construction of the written contract.

As far as regards the question of law, it is not material when or by whom the question was first raised; your Lordships having to decide it according to law. But as regards the question of fact depending on the evidence, it might be material when it was raised, for if the point had not been raised at all by the plaintiffs it would have been possible enough that the defendants refrained from calling farther evidence, which would have altered the case.

But in fact, it appears by the shorthand-writer's note that Mr. Chitty in his opening distinctly stated this as part of the plaintiff's case; and it was brought to the mind of the MASTER OF THE ROLLS, for he afterwards asks Mr. Russell what he said was the

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meaning of the words "as near thereunto as she may safely get. A considerable argument ensued, Mr. Russell contending then, as he did afterwards, that the prevention must be physical, from something endangering the safety of the ship, and that it must be permanent; and when pressed he said that though the cause of obstruction was a physical one, and one which would last a year, the steamer must wait a year. The MASTER OF THE ROLLS said, as I think he well might, "To suppose that two commercial men should enter into a contract to charter a steamer to go to a dock, or as near thereto as she may safely get, that that means that she is to wait outside for a year because the dock is out of repair, is to my mind absurd. (Mr. Russell): If the proposition looks nonsensical, if your Lordship pleases, instead of being a year, suppose it is a month (The MASTER OF THE ROLLS): I do not know that it is*(Mr. Russell): Or a fortnight." So [* 49] that there was ample time to call on the defendant to produce whatever evidence he could to show that the delay in the present case would not have been unreasonable.

The expressions of the MASTER OF THE ROLLS seem to indicate that at that moment he was not inclined to look with favour on this contention of the defendant. If such was his then opinion, he changed it, for in delivering judgment a few days afterwards he says (12 Ch. D. at p. 573): "I do not see any answer to the suggestion that the contract was to take the cargo there, and that the shipowner must wait until he could get into the dock. It makes no difference whether the cause of prevention was the dock being full of vessels, or some other accident. It might have been stress

of weather, or that the vessel drew more water than there was over the silt of the dock at one time, assuming the water to flow in more at one period than at another, or it might have been an accident to the dock gates which prevented the vessel going in for a period of time longer or shorter, as the case might be. The shipowner takes the risk of accident; so does the charterer, because in this case the charterer has to wait for his cargo. There is a risk on both sides, and the risks in some cases depend very much on the nature of the vessel. In the case of a steamer, probably, the risk is larger on the side of the shipowner, but not necessarily so. There may be perishable cargoes, the value of which is very variable, as the price may depend on the speed with which they are delivered on arrival at the port of discharge. Therefore both