No. 7. Dahl v. Nelson, 6 App. Cas. 60, 61.

days stipulated in her charter-party, it might in that event have been plausibly contended that the Euxine fell within the principle of decision in Burmester v. Hodgson, 2 Camp. 488 (11 R. R. 776), and not within the rule established in Randall v. Lynch, 2 Camp. 352, (11 R. R. 727). But it does not appear to me to be necessary to decide the point, because the Euxine never did get into dock; and I do not think that its decision one way or another would be of any assistance in determining whether it was impossible for her to get there.

The cases of Parker v. Winslow, 7 E. & B. 942, and Bastifell v. Lloyd, 1 H. & C. 388, come somewhat nearer to the present, although their bearing upon it is not very direct. It was there held that the shipowner, having contracted in the knowledge, or at least with the means of knowing, that the primary place of discharge specified in the charter-party was a tidal port. was bound to take the risk of the tides being unfavourable when his vessel arrived, and to complete the voyage by proceeding to that place at spring tides. It appears to me to be a reasonable inference from these decisions that, no impediment arising in the ordinary course of navigation to a particular port or dock, or arising in the usual and ordinary course of management of a par

ticular port or dock, and not lasting beyond ten days or a [* 61] fortnight, is to be regarded as a permanent obstruction, * but that the ship must wait and proceed to its primary destination before the charterer can be required to take delivery of the cargo. But I do not think that much aid can be derived from these decisions in determining what shall be held to constitute a permanent obstacle in a case like the present.

In Geipel v. Smith, L. R., 7 Q. B. 404, 41 L. J. Q. B. 153, and Jackson v. Union Marine Insurance Company, L. R., 8 C. P. 572; L. R., 10 C. P. 125, certain points were decided in regard to the effect of unreasonable delay arising from causes not imputable to any of the parties, and so far these cases appear to me to have a very close analogy to the present. In each of these cases there had been an impediment in the way of the chartered vessel, in consequence of which she did not go to her port of loading. That impediment, which arose in the first case from a blockade, and in the second from shipwreck, was temporary in this sense, that it would have been quite possible for the one vessel to have proceeded to the place of loading after the blockade was raised, and

for the other after her repairs were completed. In Geipel v. Smith the charterer raised an action of damages for breach of contract against the shipowner; but the Court of Queen's Bench, being satisfied of the fact that the ship could not have reached her destination within a reasonable time without running the blockade, held in law that the contract of the charter-party was thereby discharged. In Jackson v. Union Marine Insurance Company the shipowner preferred a claim for lost freight against the underwriters, who resisted it on the ground that the charter-party remained in force notwithstanding the mishap which had befallen the ship, and that the plaintiff was entitled to demand either specific implement or damages from the charterer. At the trial of the cause, the jury, in answer to questions put to them by the presiding Judge, found that the time necessary for repairing the ship, so as to make her a cargo-carrying ship, was so long as to make it unreasonable for the charterers to supply the agreed-on cargo at the end of such time; and also that the time was so long as to put an end, in a commercial sense, to the commercial speculation entered upon by the charterers. A verdict was entered for the defendants, leave being reserved to plaintiff; and the case was thereafter argued on a rule before the Court of * Common Pleas, under an agreement that the defendants [* 62] should be at liberty to argue that the findings of the jury were against the weight of evidence. The majority of the Common Pleas took substantially the same view of the facts as the jury had done, and held that the delay occasioned by the getting off and repair of the ship was so unreasonable as to terminate the adventure, and that the plaintiff was accordingly entitled to recover under his policy on freight. And, upon appeal, the Court of Exchequer Chamber, with a single dissentient voice, affirmed the judgment. It was precisely the same question which arose for decision in these two cases; and, if I understand them aright, it was in both decided that this delay in loading a cargo would have been so unreasonable, so inconsistent with the presumable views and intentions of both the contracting parties, that the charterparty could no longer be held binding on either of them. No doubt in these cases the contract had not passed the executory stage; but seeing that unreasonable delay in reaching the place of loading, when occasioned by no fault of either of the parties, is effectual to discharge such a contract altogether, I conceive that,

VOL. IX.-17

No. 7.-Dahl v. Nelson, 6 App. Cas. 62, 63.

a fortiori, a similar delay in reaching the primary place of discharge ought to have the effect of enabling the vessel to complete her voyage by proceeding to the alternative destination.

That leaves only the question of fact, whether the state of the Surrey Commercial Docks, in August, 1877, was such as would have unreasonably delayed the discharge of the Euxine within that dock. Had I been called upon to decide that question in the first instance, I should have had great difficulty in coming to any conclusion satisfactory to my own mind. I agree that the question is sufficiently raised by the pleadings, and that it was in view of the parties, and was actually discussed in the course of the argument, which is interwoven with the evidence in this case, although it is not noticed in the judgment of the MASTER OF THE ROLLS. But I cannot resist the impression that, in their anxiety to prove or disprove the alleged custom of the port, which has now been eliminated from the case, the parties have omitted to direct their evidence to many points upon which it would have been, in my opinion, desirable that a Judge, unacquainted with the

port of London, should receive information. In the absence [*63] * of such information, I have done my best to sift the evi

dence, and the result is that I am not disposed to differ from the Court of Appeal. I think it may be taken as proved, that the block occasioned by the great demand for steamship berthage in August and September, 1877, although that was rapidly becoming the normal condition of the Surrey Docks in the preceding months of June and July, was due not to ordinary but to exceptional causes. And seeing that, on the 4th of August, the authorities could not undertake, within a month, or any other given time, to admit the Euxine into the dock, and that even on the 23d of August they were not in a position to give a more definite or satisfactory undertaking, it appears to me to be safe to conclude that the length of time for which the Euxine must have waited in the port of London, in order to discharge in the Surrey Docks, would have been in excess of any delay which either the shipowner or the charterer, at the time of entering into the charterparty, could reasonably have contemplated.

I am therefore of opinion that the judgment of the Court of Appeal ought to be affirmed.

The LORD CHANCELLOR (Lord SELBORNE):

My Lords, having had an opportunity of seeing in print the

opinions which have just been delivered by my two noble and learned friends who have addressed the House, and entirely agreeing with them, I think it unnecessary to add anything more. Order appealed from affirmed; and appeal dismissed with costs.

Lords' Journals, 13th January, 1881.

ENGLISH NOTES.

The statement that where the ship contracts to proceed to certain "docks," she must enter them, is further illustrated by Tapscott v. Balfour (1872), L. R., 8 C. P. 46, 42 L. J. C. P. 16, 27 L. T. 710, 21 W. R. 245, which has already been referred to on another point. (See Notes to Nos. 3 & 4 p. 215, ante.) There the charter-party provided that the ship should proceed to any Liverpool or Birkenhead dock as ordered by the charterers and there load a cargo of coal in the usual and customary manner. She was directed to proceed to the W. Dock at Liverpool, but owing to the dock regulations was not allowed to enter for some time after she was ready to do so. It was held, that the lay-days did not commence until she had entered. The charterers argued that the stipulation to load in the usual and customary manner implied that the days were not to run until the vessel had reached the usual loading place in the dock; but the Court was of opinion that these words referred to the mode and not to the place of loading.

Arrival off the dock gates, however, was held sufficient in Ashcroft V. The 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. In that case the vessel was chartered to load a cargo of coal at Liverpool "to be loaded with the usual dispatch of the port or if longer detained to be paid 40s. per day demurrage." The loading was to take place at the Bramley Moore or Wellington docks, by the regulations of which no coal agent was allowed to load more than a certain number of vessels at the same time. The charterers, who acted as their own agents, had so many prior charters in their books that the vessel was prevented from entering the docks for thirty days after she was ready to do so. It was held that the charterers were absolutely bound to load "with the usual dispatch of the port; "that the vessel had not been so loaded, and therefore the charterers were liable.

To a similar effect appears to be the decision in Davies v. McVeagh (1879), 4 Ex. D. 265, 48 L. J. Ex. 686, 28 W. R. 143, where the ship was to load a cargo of coal "to be loaded and discharged in nineteen running days, or if longer detained to pay £4 per day demurrage." By a memorandum it was stated "vessel to load in B. Moore, or Wel

lington Dock, High Level," - owing to the regulations referred to in the last case the ship would have been kept outside for a fortnight, but as a matter of favour she was allowed to enter at once. The Court held that the days counted from the time of the vessel's admission, and inclined to the opinion that the actual admission was not material when once she was ready to come in. The soundness of this decision has, however, been called in question in Murphy v. Coffin (1883), 12 Q. B. D. 87, 32 W. R. 616, by MATHEW, J., who observes that the attention of the Court does not appear to have been called to the fact that the High Level Dock was the place of destination.

The second part of the rule is further supported by Allen v. Coltart (1883), 11 Q. B. D. 782, 52 L. J. Q. B. 686, 48 L. T. 944, 31 W. R. 841, from which it appears that where the contract is that the ship shall proceed with a cargo "to discharge in a dock as ordered on arriving if sufficient water, or so near thereto as she may safely get always afloat," the ship is only bound to discharge in the dock named if there is sufficient water there at the time the order is given. In Horsley v. Price (1883), 11 Q. B. D. 244, 52 L. J. Q. B. 603, 49 L. T. 101, 31 W. R. 786, a ship was chartered to unload at S., or "as near thereto as she might safely get at all times of tide and always afloat," and for delay in unloading the charterers were to pay demurrage. The ship was prevented by the state of the tide from reaching S. for four days after she arrived at the nearest point where she was able to float. This was held a sufficient arrival at S. to found a claim for demurrage.

A stipulation that a ship shall proceed to a certain place, or as near thereto as she can safely get, and there load a full cargo, means such a place to which she can safely get and from which when loaded, she can safely get away. Shield v. Wilkins (1850), 5 Ex. 304, 19 L. J. Ex. 238.

AMERICAN NOTES.

Damages are recoverable for delay in unloading upon vessels when the cargo could have been more quickly discharged into cars. Peters v. Hiller, 27 Federal Reporter, 474.

If a vessel is detained in the stream until her lay-days have begun, and the consignee then begins her discharge by lighters, it may be presumed by the vessel that the delay incident thereto will be compensated for by the consignee. The Dictator, 30 Federal Reporter, 637.