By the terms of the bill of lading, the consignee is only to receive his goods on the payment of freight for them and on the fulfilment of all other conditions as per charter-party. Among those conditions is that by which the shipowner stipulates for payment of demurrage at a fixed rate, in the event of the vessel carrying the goods being detained beyond the working days allowed by the charter-party. The language used, if construed according to its natural meaning, imports a liability on the part of the consignee for demurrage, co-extensive with the liability of the charterer, and the Court ought not to depart from what is the natural meaning of words selected by the parties to the contract, unless compelled by strong reasons or distinct authority. Wegener v. Smith, 15 C. B. 285; 24 L. J. C. P. 25, the words of the bill of lading were substantially the same as here, namely, against payment of the agreed freight and other conditions as per charter-party," and the construction put upon them was that to which I have referred. It is true, as was pointed out by the later case of Smith v. Sieveking, 4 E. & B. 945; 24 L. J. Q. B. 257, that there the demurrage sued for had arisen from the default of the defendant, but this fact was not even alluded to in the judgments of the learned Judges who decided the case, and clearly was not the ground of the decision. In Gray v. Carr, L. R., 6 Q.

In

B. 522, the words were "he or they paying freight and all other conditions or demurrage (if any should be incurred), for the said goods as per the aforesaid charter-party," and [* 537] although the Court of Exchequer Chamber decided against

the shipowner, on the ground that the claim set up by him for damages for short loading was not provided for under the term "dead freight" used in the charter-party, so that the case is not a direct authority upon the point under consideration, yet, inasmuch as the majority of the Court, consisting of four out of six Judges, were of opinion that under the words "all the conditions as per the aforesaid charter-party," the holder of the bill of lading would have been liable for dead freight if any had been payable, the case, at least, indirectly confirms the authority of Wegener v. Smith. The cases of Chappel v. Comfort, 10 C. B. (N. S.) 802; 31 L. J. C. P. 58; Fry v. Chartered Mercantile Bank of India, L R., 1 C. P. 689, and Smith v. Sieveking, 4 E. & B. 945; 24 L. J. Q. B. 257; 5 E. & B. 589, which have been cited on behalf of the defendant in the present case, so far from weakening the

No. 10. Porteus v. Watney, 3 Q. B. D. 537, 538.

authority of Wegener v. Smith, appear to me to tend still further to strengthen it. In each of them the reference to the charterparty contained in the bill of lading was either expressly, by the use of the words "freight as per charter-party," as in the two first cases, or impliedly by the use of the words "paying for the said goods as per charter-party," as in the last case, limited to the condition in the charter-party relating to freight, and was held to be made simply for the purpose of ascertaining the rate of freight, and not for the purpose of imposing an obligation upon the holder of the bill of lading to perform the conditions of the charter-party generally. In none of these cases was any doubt thrown upon the correctness of the decision in Wegener v. Smith. While in Smith v. Sieveking it is expressly approved of, and the Court, in referring to the language of the bill of lading, says: "This plainly indicated to the consignee that before he was entitled to the delivery of the goods he was bound to make a payment beyond the freight; and there was a reference to the charterparty for some condition to be performed beyond the payment of freight." That condition was payment of demurrage, and the bill of lading was construed as if it had expressly made the payment

of demurrage a condition on the performance of which [*538] the goods were deliverable. The consignee * accepting

the goods under such a bill of lading could not escape the payment of demurrage by denying his liability to pay it. The true result of the authorities therefore is, that a bill of lading in which the words " and all other conditions as per charter-party,' follow the expression " on paying freight," or " paying for the said goods," or similar expressions, imports a liability on the part of the consignee of goods under the bill of lading to pay the demurrage stipulated for by the terms of the charter-party to which it refers.

It is said, however, on the part of the defendants, that the present case is distinguishable from those of Wegener v. Smith and Gray v. Carr, by the fact that in them the bill of lading comprised the whole cargo, while here it comprises only a portion of the cargo; but with the exception of an observation of MAULE, J., made in the course of the argument in the former case, I can find nothing which would justify me in supposing that such a distinction exercised any material effect upon the decisions in those cases, and the absence of any reference in the judgments to it is an argument against its existence. For myself I feel a difficulty in see

No. 10. Porteus v. Watney, 3 Q. B. D. 538, 539.

ing how the construction of a bill of lading, which on its face may not, and in many cases will not, prove the fact, whether the goods to which it refers do or do not constitute the whole cargo of a chartered ship, can upon a point like that under consideration alter, according to whether the parol evidence establishes that fact in the affirmative or negative. One view by which it was suggested that this difficulty is met, is that the construction is not altered, but the conditions of the charter-party are to be read into the bill of lading, not absolutely, but with reference to the goods which are the subject of it, and that just as the freight, if regulated by the charter-party freight, is proportionate to the goods carried under the bill of lading, so the demurrage is to be divided among the consignees in proportion to the value of their goods. But this view by attempting to remove one difficulty raises another, for it would, if adopted, be impossible of being worked out, as a matter of commercial practice. It is impossible to suppose that a shipowner whose ship has been detained beyond the lay-days could in practice assert liens, or bring actions against all the bill of lading holders, for proportionate amounts of demurrage ascertained by a sort of average statement; [* 539] and the result would therefore be that a clause in the

*

bill of lading, which would appear to have been inserted for the very purpose of securing the liens to which the shipowner is entitled by the charter-party, would become practically inoperative. Another view presented is that the working days under the charter-party must be allotted among the consignees of the cargo, in proportion to the amount of the cargo to be respectively received by them, so that if in the present case there had been seven consignees of the cargo in equal portions, then there being seven working days left for unloading at the port of discharge, each consignee would be entitled to one day for unloading, and would only be liable for demurrage if he exceeded, and to the extent that he exceeded, that one day. But this view is as unpractical as the other to which I have just referred, and would, if adopted, lead to the same consequence. There is in reality no practicable middle course between the right of the shipowner to treat each consignee as liable in solido for the demurrage secured by the charter-party, and the right of the bill of lading holder to have his goods entirely freed from the condition as to demurrage contained in the charter-party. And even if a middle course were

VOL. IX.-18

No. 10. Porteus v. Watney, 3 Q. B. D. 539, 540.

practicable, the parties to the bill of lading contract could only be held to have adopted it by giving a strained interpretation to the words used by them. But then it has been urged upon us that the inconvenience and hardship, which would arise if the consignee of a small parcel of goods were held liable for the whole demurrage under the charter-party, afford a strong practical argument against the construction of the bill of lading contended for by the plaintiffs. This might be so if it were possible to construe the bill of lading so as to exclude altogether the condition as to demurrage, but if that condition must be included, as for the reasons I have already given I think it must, and the words by which it is included in their natural meaning import, as I also think they do, that the condition is to be read as if it was introduced into the bill of lading, while any other construction of the bill of lading would lead to an utterly impracticable result, the argument founded upon the alleged inconvenience and hardship to the consignee becomes of little force. It is no doubt a startling

consequence if by the construction which this Court puts [* 540] upon the bill of lading as it has been suggested, * and as I understand BRETT, L. J., holds the shipowner can recover the demurrage against all as well as against any one or more of the consignees, so that he may be paid over and over again. If the words of the charter-party are to be read in to the bill of lading in such a manner as that reference to the charterparty and to what is done under the charter-party, except for the purpose of reading the words in, cannot be made, such a consequence would follow; but in that case, Leer v. Yates, 3 Taunt. 387 (ante p. 219), becomes an authority that, notwithstanding that consequence, the consignee is liable for the entire demurrage, and Leer v. Yates, notwithstanding the dissent from the doctrine laid down in it expressed by Lord TENTERDEN in the cases of Rogers v. Hunter, Moo. & M. 63, and Dobson v. Droop, Moo. & M. 441, still stands as an authority.

But, on the other hand, without taking upon myself to express an opinion upon a point which is not directly before us, especially in the face of the opinion of BRETT, L. J., I must at least say that I do not think it altogether clear that when a bill of lading stipu lates that a consignee under it is to have his goods on payment of freight and on the performance of all other conditions of the charter-party; and, in point of fact, all demurrage due under the

No. 10.-Porteus v. Watney, 3 Q. B. D. 540, 541.

charter-party has been paid to the shipowner by some other consignee under a similar bill of lading, so that the condition in the charter-party as to demurrage has been performed, although not by the particular consignee; that fact would not constitute in equity, if not at law, a defence to an action for demurrage brought against the first consignee. Be this how it may, I feel bound by the language of the contract between the parties in this case to hold that the plaintiffs were entitled to recover against the defendants the demurrage claimed, and that consequently the decision in their favour by the learned Judge in the Court below was right and should be affirmed.

COTTON, L. J. I agree in the decision, and also in the reasons which have been given by THESIGER, L. J., for the conclusion at which he has arrived. The question is, what is the contract the parties have entered into by the bill of lading? The

words of the bill of lading are " paying freight for the [* 541] same goods and all other conditions as per charter-party." There is an express provision in the charter-party that the shipowner shall have an absolute lien on the cargo for all freight, dead freight, and demurrage. It is impossible not to import that into the contract entered into by the bill of lading. We are not at liberty to reject the words "all other conditions," unless there is something manifestly inconsistent in introducing them. The lien is on the cargo and on every part of it; and although the bill of lading refers to one part of the cargo, yet my opinion, as a matter of construction of the contract between the parties, is, that this condition shall be introduced, and being introduced, there is a lien on every part of the cargo for demurrage; and therefore, on the construction of the contract, the plaintiff is right. If parties choose to make these contracts they must take the consequences, and not come to the Court to enforce an unnatural construction of words simply for the purpose of avoiding an inconvenience which possibly they may not have conceived, but which is the result of a fair construction of the contract into which they have entered. As regards the question whether the plaintiffs could recover from each holder of a bill of lading the full amount of the demurrage, the question does not arise before us, therefore I think it better not to express any opinion upon it. I think that the plaintiff has, under his contract with the defendant, a right to recover the sum. sued for.