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BRETT, L. J. I do not differ from the decision at which the LORD JUSTICES have arrived, for to decide otherwise would be to break many settled rules of law. The bill of lading is," on paying freight for the same goods and all other conditions, as per charter-party." I endeavoured in Gray v. Carr, L. R., 6 Q. B. at p. 533, to give what I thought was a reasonable interpretation to those words, " and all other conditions as per charter-party; but my interpretation was not accepted by the majority of the Court. I take the decision in Gray v. Carr to have been that those words in a bill of lading are to be treated as words of reference to the
charter-party, and that they therefore introduce into the [* 542] bill * of lading every condition that is in the charter-party
by way of reference; so that they bring into the bill of lading every condition of the charter-party iu its terms, and make every one of those conditions part of the bill of lading, as if they had been originally written into it. But then there is another rule which applies, which is, that if taking all the conditions to be in the bill of lading, some of them are entirely and absolutely insensible and inapplicable, they must be struck out as insensible; not because they are not introduced, but because being introduced they are impossible of application. The bill of lading must therefore be considered as if all the conditions of the charter-party had been absolutely written into it originally, and then we have a bill of lading in this form : fourteen working days for loading and unloading, and ten days on demurrage. It is impossible to say that condition is not applicable to a bill of lading, although the bill of lading represents only part of the cargo. It is applicable, although it seems to me strange that a person should enter into such a contract. Then there is another rule. The bill of lading claims to be a contract between the shipowner and the person taking the bill of lading. There is no relation whatever between the holders or takers of other bills of lading and any one holder of a bill of lading. They are not co-sureties. When, therefore, it is said we can look at all the bills of lading and then divide the days of demurrage or the lay-days between them, we are looking at other bills of lading which cannot be given in evidence. They cannot be received in evidence in an action between the shipowner and the holder of a bill of lading, and therefore when it is said that the bill of lading represents a part of the cargo, and that the other bills of lading are in the same form, we break the rule
which does not allow us to look at them, for we do not know whether the other bills of lading are in the same form. Then what is the contract represented by the bill of lading with the conditions in it? It seems to me that the cases of Randall v. Lynch, 2 Camp. 352 (11 R. R. 727), and Leer v. Yates (p. 219, ante), 3 Taunt. 387, and particularly the case of Thiis v. Byers (p. 225, ante), 1 Q. B. D. 244, show what the contract is, when that contract is in this form. It is not that the holder of the bill of lading will discharge his cargo * within a reason- [* 543] able time after he is able to do so; it is that if the ship is not able to discharge the whole of her cargo within the given number of days after she is at the usual place of discharge, the holder of that bill of lading will pay a certain sum for each day beyond those days, however the delay may be caused, unless it is by default of the shipowner. That is stated to be so in Thiis v. Byers. Therefore the holder of a particular bill of lading is bound to pay according to that contract for every day beyond the stipulated days, during which the ship remains with the cargo in her, unless the delay is caused by the fault of the shipowner.
Now in this case there is no fault on the part of the shipowner; the delay might be caused by accidents over which none of the holders of the bills of lading had any control, or it may have been caused by delay of the holders of cargo above that of the defendant. But even supposing it is by their neglect, in the contract between the shipowner and the defendant there is no stipulation about the negligence of other people. The defendant is to pay, unless it is the fault of the shipowner. The negligence of the owners of the cargo above is not the fault of the shipowner. Therefore the negligence of owners of cargo above would be one of those negligences the consequence of which the defendant has undertaken to pay for. Therefore whether they were negligent or not, it seems to me on his contract he must pay. If I could arrive at an opposite conclusion I would, for I do not share the doubt of THESIGER, L. J. I think that if the consignee of a portion of the cargo had a bill of lading in the same words, and had been called upon to pay, and had paid the whole demurrage to the shipowner, the holder of another bill of lading, if sued, could not set that up as a defence. That defence would arise in respect of a wholly independent contract between the shipowner and the holder of the other bill of lading. He could not set it up as a defence, because
- Porteus v. Watney, 3 Q. B. D. 543, 544.
he would have no right to prove that other and wholly independent contract. I accept the proposition that it would be no defence for the owner of the bill of lading, to say that the shipowner had been paid the same sum by all other holders of bills of lading for cargo in the ship. Therefore I think that we are bound to follow
the decision of Leer v. Yates. I cannot do so without [* 544] considerable * hesitation, after the expressions of opinion
of eminent Judges, of the authority of Lord TENTERDEN and Sir James MANSFIELD. We have to decide on a conflict of cases, and I prefer the decision of Leer v. Yates to the rulings laid down in Rogers v. Hunter and Dobson v. Droop.
There is another solution of the problem, which has been ingeniously suggested by Mr. Maclachlan in the last edition of his book, at p. 496, where he suggests that there are two elements which enter into this question, namely, time and amount, and he proposes a solution somewhat between the opinion of Sir James MANSFIELD and Lord TENTERDEN; but his solution would break the settled rules of law, and cannot be admitted.
It has suggested itself to me that, if the holder of the bill of lading of cargo above were to delay the ship unreasonably, it is possible that the holder of the bill of lading of cargo under him might have an action against him for damages. It may be they owe the duty to each other, that no one of them shall negligently delay; but there may be difficulties in bringing an action. He may not have notice of the contract, or there may be other difficulties, still I think it is possible he may have that remedy — it is reasonable -- but he certainly can have no other; he cannot maintain an action against the others for contribution; and it does not seem to me that there is any equity between them. So that I accept the whole consequence that was seen by Sir James MANSFIELD in Leer v. Yates; but at the same time I think the rules of law oblige me to say that the holder of each bill of lading is liable if the ship is delayed beyond the number of days allowed in his bill of lading. The judgment of LUSH, J., is correct, and must be affirmed.
In Wegener v. Smith (1854), 15 C. B. 285, 24 L.J. C. P. 25, the bill of lading which comprised the whole cargo stipulated that the cargo was to be delivered “ against payment of the agreed freight and
No. 10. — Portens v. Watney. — Notes.
other conditions as per charter-party; ” and it was held that under this contract the assignee of the bill of lading might be liable for demurrage, if he received the goods.
In Gray v. Carr (1871), No. 2 of “Dead Freight,” 8 R. C. 479 (L. R., 6 Q. B. 522, 40 L. J. Q. B. 257, 25 L. T. 215, 19 W. R. 1173), the charter-party gave the owners an absolute lien on the cargo for demurrage. The loading having been completed after considerable delay, bills of lading were signed which stipulated that the consignees were to receive the cargo, "paying freight and all other conditions or demurrage (if any should be incurred) for the said goods as per the aforesaid charter-party.” It was held by a majority of the Court of Exchequer Chamber that the lien was retained by the terms of the bill of lading. The comments upon these cases by the judges who decided the ruling case should here be referred to.
But where the consignees, before the arrival of the vessel at the port of discharge, refused to pay demurrage incurred at the port of loading, but paid the freight and took delivery of part of the cargo, the owners exercising their lien for demurrage over the residue, it was held that the consignees were not liable, notwithstanding that the bill of lading contained the clause "all other conditions as per charter-party." Steamship “ County of Lancaster” v. Sharpe (1889), 24 Q. B. D. 158, 59 L. J. Q. B. 22, 61 L. T. 692.
It would seem, however, that if the bill of lading contains no reference to the stipulation for demurrage in the charter-party, the consignee will not be liable. Thus in Smith v. Sieveking (1855), 5 El. & Bl. 589, affirming 24 L. J.Q. B. 257, it was held that a consignee entitled to goods under a bill of lading, on "paying for the said goods as per charter-party," did not by taking the goods at the destination make himself liable to pay for demurrage at the port of loading for which a lien was given by the charter-party.
In Young v. Moeller (1855), 5 El. & Bl. 755, 25 L. J. Q. B. 94 (reversing 5 El. & Bl. 7, 24 L. J. Q. B. 217), the charter-party provided for delivery of the cargo on payment of freight and for demurrage if the ship were detained beyond the lay-days. The bill of lading stipulated for delivery to the consignees “on paying freight for the said goods as per charter-party.” The owner delivered a portion of the goods and demanded payment of freight in respect thereof, and the consignees refusing to pay, the lay-days expired before the residue was delivered and the freight paid. It was held that there was no evidence of any agreement by the consignees to take the cargo in a reasonable time.
And where the bill of lading made the goods deliverable to the consignee on his paying freight according to the charter-party, and in the margin thereof were the words “ there are eight working days for
No. 10. — Porteus v. Watney. – Notes.
unloading in London,” it was held that the consignee was not liable in an action for demurrage for detention at the port of discharge beyond the time allowed by the charter-party, as there was no intention apparent on the bill of lading that the person receiving the goods thereunder was to pay demurrage. Chappel v. Comfort (1861), 10 C. B. (N. S.) 802, 31 L. J. C. P. 58, 4 L. T. 448, 9 W. R. 694.
In Christoffersen v. Hansen (1872), L. R., 7 Q. B. 509, 41 L.J.Q. B. 217, 26 L. T. 547, 20 W. R. 626, in a charter-party by which it was agreed that the defendant should load the plaintiff's ship, it was provided that, the charter-party being concluded by the defendant on behalf of another party resident abroad, “all liability by the defendant should cease as soon as he had shipped the cargo." In an action upon the charter-party for delay in loading, the defendant pleaded that before action brought he had shipped the cargo, and that therefore his liability had ceased under the charter-party. It was held that, on a true construction of the charter-party, it only meant that the defendant should be exonerated from liability for anything that occurred after shipment, and that he was not exonerated for breaches occurring before the completion of the shipment although not sued for until afterwards.
In giving judgment in the last mentioned case, BLACKBURN, J. and LUSH, J. relied upon the circumstance that no lien was given for demurrage or delay in loading; LUSH, J., observing, — " If there had been any provision in the charter-party giving the shipowners a lien for damages caused by that delay in putting the cargo on board, there would be some reason why the defendant should be absolved from all liability. But there is no such lien in law, and the charter-party does not confer it.” On this ground the case was distinguished in Francesco v. Massey (1873), L. R., 8 Ex. 101, 42 L. J. Ex. 75, 21 W. R. 440, where the clause was: - Charterer's liability to cease when the ship is loaded, the captain having a lien upon the cargo for freight and demurrage; "and the Court held the charterer protected from an action brought after completion of the loading. A similar decision is given, and the authority of Francesco v. Massey confirmed, by the Exchequer Chamber in Kish v. Cory (1875), L. R., 10 Q. B. 553, 44 L.J.Q. B. 205, 32 L. T. 670, 23 W. R. 880.
In Lockhart v. Falk (1875), L. R., 10 Ex. 132, 44 L. J. Ex. 105, 33 L. T. 96, 23 W. R. 753, the ship was to load “in the customary manner.” She was to discharge in ten working days. “Demurrage at £2 per 100 tons register per day. ... The ship to have an absolute lien on cargo for freight and demurrage, the charterer's liability to any clauses in the charter ceasing when he has delivered the cargo alongside ship.” It was held that the demurrage and the lien and exception clauses did not apply to damages for undue detention of the vessel at the port of lading.