No. 8.

Dickinson v. Martini, Court of Session, 4th Ser. 1189.

lighten the ship. That was done to the extent of about half the cargo, and the vessel proceeded up the river. A claim of demurrage is made by the owners, in which the time that the ship was detained at Greenock is taken into account.

The first question is, whether this claim is well-founded, or whether the lay-days did not begin to run until the vessel came to the port of discharge.

The LORD ORDINARY has decided in favour of the owner. I entirely agree with him. The argument for the consignees is rested upon an obvious fallacy. They maintain that the delivery at Greenock was not complete delivery in any sense, but ought to be likened to something done in the course of a voyage for the sake of the preservation of the rest of the cargo. The whole argument is liable to exception. There was no obligation in the charter-party upon the master to go to the port of Glasgow. He undertook to be at the consignee's order, but it was also stipulated that the ship was to be always afloat, and to get as near the port. as she safely could. Thus when the consignees ordered him to discharge at Glasgow it was implied, "if you can." Under these circumstances he had not only a right to discharge at Greenock, but it was his duty to do so when ordered by the consignees to go to Glasgow. The case of Hillstrom is conclusive of his obligation, and of his right also in this respect. The only doubt there was whether the master was bound to give partial delivery. It was held that he was bound so to lighten the ship as to enable him to finish the voyage. Here it is impossible to dispute the right and duty of the master to discharge part of the cargo at Greenock, and I held that, to the extent of the amount so delivered, the voyage was completed. I am unable to see how the consignees, after ordering the master to a port where he could not lie afloat, can claim the benefit of the time which was spent in lightening the ship so as to enable it to carry out their orders. It is in vain to assimilate this to a case of jettison in which the contract of carriage is never performed. Here the contract was in part brought to an end by performance, and the freight was earned.

On the second question, namely, whether the master unduly delayed to proceed up the river, I entirely agree with the LORD ORDINARY.

On these grounds, I have no hesitation in proposing that we should affirm the interlocutor.

Nos. 8, 9. – Dickinson v. Martini; The Alhambra.

Lord BENHOLME.

When Glasgow was designated by the merchants as the port of discharge they must be held to have known that a vessel drawing so many feet of water was not safe to proceed up the river, and could not be so until she was lightened at the Tail of the Bank. It was strongly pleaded to us that the process of lightening took more time than it need have done owing to the want of lighters, that it was the duty of the captain to supply these, and therefore that demurrage is not due. I am clearly of opinion that it was the duty of the merchants, knowing the circumstances, to have provided for the supply of the lighters, and if there was increased demurrage in consequence of the slow operations they are themselves responsible. I quite concur in the general views expressed by your Lordship.

Lord NEAVES and Lord ARMIDALE concurred.

The judgment of the LORD ORDINARY was therefore affirmed.

The Alhambra.

This case is fully reported as No. 8 of "Custom" 8 R. C. 351.

ENGLISH NOTES.

It is to be noted that at some ports it is customary for ships of unusual burdens, when they are as near the port as they may safely get, to lighten in order that they may enter the port. Where a ship is bound to such a port and can by lightening reach the usual discharging place therein, she must lighten in accordance with the custom and proceed to that place.

The computation of time in such a case is determined by the contract between the parties, explained by the custom of the port.

The most usual method of calculation appears to be to count the time occupied in lightening and discharging, but not the time occupied in passing between the place of lightening and that of discharge.

or as

Thus where a ship was chartered to take a cargo to Glasgow near thereto as she can safely get, and lay afloat at all times of the tide and deliver the same and so end the voyage," but drew too much water to lie afloat there at low tide, a custom of the port according to which the merchants might at their own expense lighten the ship at the Tail of the Bank at Greenock, twenty-two miles from Glasgow harbour, was held by a Scotch Court to be a reasonable custom. Hillstrom v. Gibson (1870), Court of Session Rep., 3rd Series, vol. 8, p. 463. That decision was followed in the subsequent Scotch case of Dickinson v. Martini, the principal case, No. 8, p. 261, ante.

Nos. 8, 9.

- Dickinson v. Martini; The Alhambra. — Notes.

A charter-party provided that the ship should be ordered to a port where she could discharge "always afloat," and by the bill of lading she was ordered to the port of "Newry." Owing to her draught it was necessary to discharge part of her cargo at the "Pool" in Carlingford Roads, ten miles from Newry, and another part at the Victoria lock of the Newry canal, to enable her to go through the canal to the "Albert basin" at Newry. In an action for demurrage, evidence was brought of a usage of the port according to which vessels of too great draught to enter the Albert dock might lighten at the other places named, the time occupied at these places being counted, but not that spent in passing between them; and this evidence was accepted and acted upon by the Irish Courts of Queen's Bench and Exchequer Chamber. Caffavini v. Walker (1876), 10 Ir. R. C. L. 250, 9 Ir. R. C. L. 431. That case was followed in McIntosh v. Sinclair (1877), 11 Ir. R. C. L. 456, a case which also arose at the port of Newry. Similarly a custom of the port of Gloucester according to which grain cargoes were discharged at the basin within the city, and vessels of too great burden to come up the canal to the city were lightened at Sharpness, the lay-days counting during the process of lightening, but not during the passage up and down the canal, was held a reasonable ustom and not inconsistent with an express provision in the charterparty as to running days; Nielson v. Wait. (C. A. 1885), 16 Q. B. D. 67, 55 L. J. Q. B. 87, 54 L. T. 344, 34 W. R. 33.

At some ports, however, it is necessary for the vessel to reach the final place of discharge before the lay-days begin to count. Thus in Brereton v. Chapman (1831), 7 Bing. 559, it was held that the ship must reach the usual place of discharge within the port, and the previous lightening was treated as being for the purpose of navigation only. In McIntosh v. Sinclair, supra, the merchants of Newry tried to make out a custom by which time would not run until the Albert Dock was reached; but the Court held that, as the "Pool" had been proved to be the usual place at which vessels of considerable tonnage commenced discharging, the custom sought to be proved could not be good.

AMERICAN NOTES.

In Olivari v. Merchant, 18 Federal Reporter, 554, the charterer was held liable for demurrage in delaying the discharge of the vessel by providing unsuitable lighters instead of having the cargo discharged on the pier.

No. 10. — Porteus v. Watney, 3 Q. B. D. 534, 535. — Rule.

No. 10. PORTEUS v. WATNEY.

(C. A. 1878.)

RULE.

WHERE a bill of lading stipulates for delivery "on paying freight and all other conditions as per charter-party; the owners of the goods, consignees or indorsees under the bill of lading, are liable for any demurrage stipulated by the charter-party.

Porteus v. Watney.

3 Q. B. D. 534-544 (s. c. 47 L. J. Q. B. 643; 39 L. T. 195; 27 W. R. 30).

Charter-party. Bill of Lading. Demurrage. Consignee prevented from

discharging by the Delay of other Consignees.

A charter-party, entered into between the plaintiffs and B. & Co. for [534] the conveyance of grain from C. to L., stipulated that fourteen working days were to be allowed for loading and unloading at the port of discharge, and ten days on demurrage at £35 a day. The vessel having been loaded, one of the bills of lading was indorsed to the defendants. The defendants' grain was stowed at the bottom of the main hold, and that of the other shippers on the top of it. The bill of lading, indorsed to the defendants, contained the words "paying freight for the same goods and all other conditions as per charterparty." Owing to the consignees whose grain was placed on the top of the defendants' having failed to take away their goods within the lay-days, the defendants were unable to obtain delivery of their grain, and three days' demurrage was incurred :

Held, affirming the judgment of LUSH, J., that the defendants were liable for the demurrage, although they were prevented from getting their goods by the delay of other consignees.

Action to recover £105 for three days' demurrage of the steamer Stamford at the port of discharge.

At the trial before LUSH, J., at the Hilary Sittings in London, the following facts were proved: A charter-party was entered into between the plaintiffs, the owners of the Stamford,

*

and Brand & Co., for the conveyance of a cargo of grain [* 535] from Cronstadt to London, and by which it was stipulated that fourteen working days were to be allowed for loading and unloading at the port of discharge, and ten days on demurrage over and above the said loading and delivery days, at £35 day by day. The captain to sign bills of lading as presented without

No. 10. Porteus v. Watney, 3 Q. B. D. 535, 536.

prejudice to the charter-party, but at not less than chartered rate, and to have an absolute lien on the cargo for all freight, dead freight, and demurrage. The cargo to be brought and taken from alongside the ship at merchant's risk and expense.

The vessel took on board a full cargo of grain from several shippers, and a portion of it was consigned to the defendants. The defendants' grain was stowed at the bottom of the main hold, and that of other shippers on the top of it. Bills of lading for portions of the cargo were given to the several shippers, and one of which, for a part of the cargo, was indorsed to the defendants, and contained the words, to be delivered to order or to assigns" on paying freight for the said goods and all other conditions as per charter-party." Seven days had been consumed at the port of loading, so that seven working days remained for unloading at the port of discharge. Owing to the consignees of the portions of cargo placed on the top of the grain of the defendants having failed to take away their goods in proper time, the defendants were unable to obtain delivery of their grain, and in consequence demurrage amounting to three days was incurred. The learned Judge directed the judgment to be entered for the plaintiffs for £105 and costs (3 Q. B. D. 227).

May 4. Butt, Q. C., and Mathew, for the defendants, contended that the words in the bill of lading" paying freight for the same goods and all other conditions as per charter-party" must receive some limited construction; that it would be too extensive a construction to hold that they put the consignee in the place of the charterer, for it never could have been intended to make him. liable to every dispute between the charterer and the shipowner. The words therefore ought to be limited to conditions having reference to the particular goods.

[* 536]

*May 16, 17. A. L. Smith, and R. T. Reid, for the plaintiffs, contended that the charter-party was incorporated in the bill of lading, and that the consignee was bound before he received delivery of his goods to fulfil the conditions referred to, besides the payment of freight.

The cases cited in the arguments are mentioned in the judgments. Cur. adv. vult.

July 2. The following judgments were delivered. THESIGER, L. J. I am of opinion that this appeal should be dismissed.