No. 8. Dickinson v. Martini, Court of Session, 4th Ser. 1185, 1186. — Rule.

WHERE a ship is chartered "to a safe port in the United Kingdom or so near thereto as she may safely get always afloat;" and the merchants order the ship to proceed to a port to which she cannot get without lightening by partially unloading, and the ship sails for that port accordingly; it lies upon the merchants to provide facilities for lightening the ship at the place where this is usually done, and the time spent in lightening counts as lay-days in favour of the shipowner.

But the shipowner is not bound under such a charterparty to proceed to a port which she could not, without previously lightening, safely reach and lie there always afloat.

Dickinson v. Martini.

Court of Session, 4th Series, Vol. I. pp. 1185-1189.

[Reprinted by permission of the proprietors of the Cases decided in the Court of Session.]

Ship.-Demurrage.

A ship was chartered to " proceed to a safe port in the United Kingdom, [1185] or as near thereunto as she may safely get always afloat at any time of

the tide." She was ordered to Glasgow, but owing to her draught of water had to discharge part of the cargo off Greenock before proceeding to Glasgow. In an action for demurrage, held that the voyage was completed at Greenock, so far as regarded the cargo discharged there, and that the time spent in lightening at Greenock was to be included in the lay-days.

By charter-party between the agent for William Dickinson, shipowner, Newcastle, owner of the steamer Redewater,

and A. Kohan, merchant, it was agreed that the Rede- [* 1186] water should load a cargo of grain at Odessa, and should "therewith proceed to a safe port in the United Kingdom, or so near thereto as she may safely get, always afloat at any time of

No. 8. Dickinson v. Martini, Court of Session, 4th Ser. 1186, 1187.

the tide, calling at Cork, Falmouth, or Plymouth, at the master's option for orders (which are to be given in twelve hours, or laydays to commence), as follows, viz., fourteen running days to be allowed, . . . for loading and unloading, and ten days on demurrage over and above the said laying days, at £35 per day."

After loading, which occupied four days, the Redewater proceeded to Falmouth, where she remained four days waiting for orders. On 4th September, H. Martini and Co., merchants in Glasgow, who had purchased the cargo, ordered the ship to proceed to Glasgow. She arrived at the Tail of the Bank at Greenock on 7th September. As she drew too much water with her full cargo to discharge at Glasgow, the owners and consignees agreed that she should discharge by lighters in the roadstead at the Tail of the Bank until sufficiently lightened to proceed. She remained there fifteen days, reached Glasgow on the 23d, and completed her discharge in the four days following.

The owners claimed demurrage for ten days, as per charterparty, from 14th to 23d September, at £35 per day, and for four days more at the same rate. The consignees refused to pay, and

the owner raised this action.

[The LORD ORDINARY (the Judge of first instance) gave judgment for £490, being demurrage for 14 days beyond the lay-days stipulated in the charter-party and appended to his judgment the following note: -]

66

This action raises some questions of general interest and importance relative to the computation of lay-days and of demurrage days in the case of a port like Glasgow, where vessels having a deep draught of water, and which require to be always kept afloat, are in use to lighten or discharge part of their cargo in the roadway at Greenock, and then proceed with the remainder to discharge it at Glasgow.

Previous to the decision in the case of Hillstrom v. Gibson and

Clark (2 Feb. 1870), Court of Session Rep., 3d Series, [* 1187] Vol. 8, p. 463, * it was considered a doubtful point whether a vessel which had what is called the floating clause in her charter-party, that is, which stipulated for being kept afloat at all times of the tide, and which drew, when loaded, so much water that she would not float in Glasgow harbour at low tide, was bound to go up to Glasgow at all, or whether the consignees were not bound to take delivery of her whole cargo at

No. 8.

- Dickinson v. Martini, Court of Session, 4th Ser. 1187.

Greenock, or at the Tail of the Bank. In Hillstrom v. Gibson and Clark it was decided, in accordance with the custom, that such a vessel was bound to lighten at the Tail of the Bank to such an extent as would keep her afloat in Glasgow harbour, and then to proceed to Glasgow and discharge there the remainder of her cargo.

“In Hillstrom's case no question occurred about the computation of lay or demurrage days, the whole delay having been occasioned by the master's improper refusal to lighten and proceed. In the present case this question of computation directly arises.

"The defender in the present case broadly contended that in no case could the lay-days commence to run until the vessel had reached her port of destination, that is, the port of Glasgow. He maintained, with great ingenuity, that the lightening at ́ Greenock was an incident of the voyage, a necessity which lay upon the shipmaster, and without which the voyage could not be completed, and that any delay occasioned by the lightening at Greenock, by whosesoever fault, was only a lengthening of the voyage, and could not be counted as either lay-days or demurrage days, neither of which can begin to run till the vessel has completed her voyage and reached Glasgow, her port of discharge.

Alternatively, the defender's counsel maintained that even if damages could be demanded for unnecessary detention at Greenock by the defender's fault, such claim could only be made good in an action of damages at common law, and not in the present action, which, he insisted, was a mere action for demurrage.

"Notwithstanding the ability and ingenuity, however, with which these pleas were maintained, the LORD ORDINARY thinks they are not well founded. He thinks it is sufficiently proved that the pursuer's vessel was detained fourteen days beyond her lay-days before she was discharged at Glasgow, and that the pursuer is fairly entitled to the liquidated rate of demurrage, being £35 a day, for these days. The demurrage days are limited by the charter-party to ten, so that if more damage had resulted the pursuer was not confined to £35 a day for the last four days; but no point was made by either party on this, the liquidated demurrage of £35 per day being held as a fair measure of the damage, if damage or demurrage is due at all.

"In the first place, and in reference to the form of the action, the LORD ORDINARY is of opinion that the pursuer is entitled to make good his claim in the present action whether

Dickinson v. Martini, Court of Session, 4th Ser. 1187, 1188.

that claim be considered as demurrage strictly so called, or whether the claim be regarded as one for damages at common law. In truth, demurrage is just damages liquidated by the agreement of parties. Demurrage is simply damages for detention at the agreed-on rate of damage, so much per day. Generally the demurrage days are limited, because the liquidated rate of demurrage is in the common case somewhat less than the actual damage which may be caused by the detention. But whether this be so or not, the only effect of the limitation of the demurrage days is that the damages for farther detention are not to be held as liquidated, but may be proved according to their actual amount, whatever that amount may be. The character of the action, however, is the same, whether the damages are liquidated by agreement of parties or not, and it would be absurdly strict to hold that a separate or a different action was required, according as the damages were liquidated or not. Even if an amendment were required, the LORD ORDINARY Would at once have allowed it under the recent statute, so as to determine in the present action the true question between the parties; but no amendment seems necessary. "The next question is, Are the defenders liable for the detention which admittedly took place at Greenock? The LORD ORDINARY thinks they are. It is a mistake to say that the lay-days never commence to run till the vessel has arrived at her final or ultimate port of destination. In this very case four lay-days were exhausted at Falmouth, waiting for orders, and although this was by special stipulation, the same result would have happened if the detention is caused by the merchant's fault. In truth, the real question seems to be, by whose fault was the detention occasioned? and though it is quite supposable that delicate questions might arise where the detention was accidental, and arose from causes not imputable to either party, the present case stands quite clear of any such delicacy, for the LORD ORDINARY holds it to be established in point of fact that the detention at Greenock was occasioned by the fault of the defenders.

[1188]

"It seems to be clear that when a vessel like the Redewater requires to lighten at Greenock by discharging part of its cargo there, it is the duty of the consignee to take delivery at Greenock of that portion of the cargo requiring to be there discharged. This was admitted by the present defenders. It was also assumed in the case of Hillstrom v. Gibson, and it could hardly be disputed,

No. 8. — Dickinson v. Martini, Court of Session, 4th Ser. 1188, 1189.

having regard to the custom of the port. If it could have been shown that no duty lay upon the consignee at Greenock, that the captain was bound to find barges or lighters for himself, and to forward the cargo thereby to the consignee at Glasgow, the case would have been totally different. No such case, however, was made for the defenders, and in the LORD ORDINARY's opinion any attempt to do so would have been hopeless.

"Assuming, then, that the consignees that is, the defenderswere bound to take partial delivery at Greenock over the ship's side, and to supply the barges and other appliances necessary for this purpose, there is really an end of the case, for the LORD ORDINARY thinks it is sufficiently proved that the delay and detention at Greenock was wholly caused by the fault of the defenders.' On appeal from this judgment to the First Division of the Court the following authorities were cited in argument:

Hillstrom v. Gibson (2 Feb. 1870), Court of Session Rep., 3d Series, Vol. 8, p. 463; La Cour and Watson v. Donaldson and Son (22 May, 1874), Court of Session Rep., 3d Series, Vol. 8, p. 912; Brereton v. Chapman (24 May, 1871), 7 Bing. 559; Abbott on Shipping, 266; Ford v. Cotesworth (17 Dec. 1868), L. R., 4 Q. B. 127; McLaren's Bell's Com. 622; Abbott on Shipping, 269; Whitwell v. Harrison (18 Feb. 1848), 2 Ex. 127.

The following judgments were pronounced:

LORD JUSTICE CLERK (Lord MONCREIFF): This question arises. under a charter-party between the owner of the Relewater, a large vessel with a considerable draught of water, and a merchant named Kohan. The ship loaded her cargo at Odessa, and proceeded to Falmouth, where she arrived on 31st August, 1872. She was detained there four days, and received orders on the 4th September. There being no port of discharge mentioned in the charter-party, that was left to the option of the consignees. It seems that, after the ship arrived at Falmouth, the cargo was purchased by merchants in Glasgow. The purchasers, as holders of the bills of lading, had the right to give orders to the master, and they named Glasgow as the port of discharge. The master accordingly proceeded thither, and reached the Tail of the Bank on 7th September. A doubt arose whether there was enough of water for the vessel to go up to Glasgow. In the end the consignees and the master came to an arrangement by which a certain amount of

the cargo should be delivered at Greenock in order to [* 1189]