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event of “dangers and accidents of the seas, rivers and navigation," only applies to a continuing obstacle to the completion of the voyage, and not to a temporary one (1), such as inability to enter port for want of sufficient water, though it be not safe to remain outside the port (1).
A loss resulting from a collision occasioned by the negligence of the master and crew will not fall within the exception as to dangers and accidents of the seas, &c. (m).
CASES. 1. By charter-party it was agreed that the defendant's ship should proceed to V. in Spain, and there load a cargo of fruit. The Spanish Government refused the ship permission to load, because she had warlike stores on board. The ship then immediately left V. Held, that the plaintiff could not sue defendants for breach of the charter-party, as, through an act of a superior power, he could not load the cargo, and the defendants could not receive it (n).
2. The master and freighter of a ship agreed in writing that the ship should proceed to St. Petersburg, and there load a complete cargo to be delivered in London on payment of freight. The master, after taking in half a cargo at St. Petersburg, sailed away on a rumour of a hostile embargo being laid on British ships by the Russian Government. Held, that the master was liable to the freighter for the short delivery of the cargo, though a hostile embargo was laid on six months after, and though the jury found that he had acted bona fide, and under a reasonable apprehension (o).
3. By a charter-party the defendant's ship was to sail to Galatz, and there load a cargo dangers and accidents of the seas, rivers and navigation mutually excepted." The vessel on reaching the mouth of the Danube could not pass the bar. She accordingly, after waiting for about a month, sailed to Odessa, and there loaded a cargo. Three weeks after there was sufficient water for ships to go to Galatz. Held, that the breach of the contract was not covered by the exception as to dangers of the seas, &c. (p).
(1) The General Steam Navigation Co. v. Slipper, 11 C. B., N. S. 493 ; Harrison v. Garthorne, 26 L. T. 508 ; Schilizzi v. Derry and others, 4 E. & B. 873; see
“ Cases" (3) at end of this g.
(m) Grill v. General Iron Screw Collier Co., L. R., 3 C. P. 476 ;
Lloyd v. General Iron Screw Collier
(n) Cunningham v. Dunn, 3 C. P. D. 443.
(0) Atkinson v. Ritchie, 10 East, 530.
(p) Schilizzi v. Derry and others, 4 E. & B. 873.
$ 40. If the freighter makes the usual covenant to load or Demurrage unload within a certain time, and in default to pay a certain sum for each day's delay, termed demurrage, he must pay it, if he make default, even though the delay (which is also called demurrage) were unavoidable (q).
But where the delay is occasioned not by any default in loading the ship, but by her not being able to sail when loaded, as if she be detained by her damaged condition or by a frost or by an embargo, or if the delay in unloading be due to a similar cause (r), demurrage is not payable (s).
If the owners of the ship interrupt the loading or unloading by their wrongful acts, or if the delay be caused by their neglect or inability to get clearance papers, they will not be entitled to demurrage (t).
Demurrage will cease to run as soon as the ship sails, and if she afterwards be forced to put back, and be then detained in port by bad weather, or by ice, it will not recommence to run (u).
The liability of the freighter for demurrage will not arise till the ship is placed at his disposal by the owner at the place of loading or discharge named in the contract of affreightment. If ships generally only load or unload at some particular part of the port named, the ship must arrive at that spot before the freighter's liability can
(2) Barker v. Hodgson, 3 M. & S. 267; Thiis v. Byers, 1 Q. B. D. 244; see “ Cases" (1) at end of this Ø ; Waugh v. Morris, L. R., 8 Q. B. 202 ; Jones v. Adamson, 1 Ex. D. 60; Coverdale v. Grant, 8 Q. B. D. 600; Kay v. Field, 52 L. J., Q. B. 17; 10 Q. B. D. 241 (C. A.); Dahl v. Donkin or Nelson, 6 App. Cas. 38; 50 L. J., Ch. 411 ; 44 L. T. 381 ; 29 W. R. 543; Marshall v. Bolckow, 6 Q. B. D. 231 ; 29 W. R. 792.
(3) Postlethwaite v. Freeland, 5
App. Cas. 599; 49 L. J., Ex. 630;
(s) Pringle v. Mollett, 6 M. &
(1) Benson v. Blunt, 1 Q. B. 870; Barret v. Dutton, 4 Camp. 333.
(u) Jamieson v. Laurie, 6 Bro. Parl. Cas. 474.
(2) Brereton v. Chapman, 7 Bing. 559; Norden Steamship Co. v. Dempsey, 1 C. P. D. 654.
The clause of demurrage should state whether the days mentioned in it are intended to be working or running days. If it does not, it will be understood to mean running days (1), unless some custom exist to the contrary, as in London (u). A fraction of a day will count as a day.
If demurrage be payable by the hour, the time will run on at night as well as at day (x).
The arrival of the ship at her usual place of loading or unloading will, in the absence of any express stipulation, be the date from which the time will be computed (y). If the usual place be a dock, entering the dock will be sufficient, though the ship does not get into a discharging berth (2). Entering the port merely will not be enough (a).
CASES. 1. The delay in unloading a cargo of timber was occasioned by bad weather, which made it impossible to unload within the stipulated time. Held, that the charterer was liable for demurrage ().
2. A ship chartered to carry a general cargo from Odessa to London was after the cargo was on board prevented for two months from sailing, through being blocked in port by ice. Held, that the charterer was not liable to the owner for such detention (c).
3. A ship under a charter, which provided that she should go to a certain port, and there unload in the usual manner, was in in the act of unloading, when the local authorities refused for several days to allow the unloading to be continued, owing to a threatened bombardment. The shipowner was held not to be entitled to recover damages from the charterer for the delay (d).
(1) Brown v. Johnson, 10 M. & W.331.
(2) Cochrane v. Retberg, 3 Esp. 121.
(x) Laing v. Holloway, 3 Q. B. D. 437 (C. A.)
(y) Kell v. Anderson, 10 M. & W. 498; Broun v. Johnson, ib. 331; Bastifall v. Lloyd, 31 L. J., 413; 1 H. & C. 388.
(z) Brown v. Johnson, 10 M. & W. 331 ; Tapscott v. Balfour, L. R.,
8 C. P. 46.
(a) Brereton v. Chapman, 7 Bing. 559; Capper v. Wallace, 5 Q. B. D. 163; Hayton v. Irwin, 5 C. P. D. 130 (C. A.)
(6) Thiis v. Byers, 1 Q. B. D. 244.
(C) Pringle v. Mollett, 6 M. & W. 80.
(d) Ford v. Cotesworth, L. R., 6 Q. B. 545.
$ 41. Under his contract to supply a cargo, the merchant is The cargo. bound not to ship dangerous or prohibited goods (e). He will not be entitled to fill the cabins (f ), or to load the deck, in the absence of any usage of trade or agreement to carry a deck cargo (9). Otherwise increased freight will be payable according to the current rate of freight at the time of loading (h). Heavy deck loads of timber are prohibited between 31st October and 16th April on ships arriving in the United Kingdom (i). Dangerous goods can be forfeited by any Court of Dangerous
goods. Admiralty (k), when shipped or attempted to be shipped without notice on any vessel, British or foreign ; or they can be thrown overboard (1), without the shipowners or master becoming liable in any way to their owner. On the other hand, the shipowners will be liable to an action by the owners of the other goods on board, if such goods are damaged by the dangerous articles (m).
Where by the terms of a charter-party the charterer is bound to load a full and complete cargo, he must provide such a cargo, though the ship exceeds her capacity as mentioned in the charter-party, provided the excess be not unreasonable (n). Even where the ship chartered catches fire or is otherwise damaged, but subsequently repaired, the charterer will not be freed from his obligation to load (o).
Where power is given by a charter-party to send the ship from the port of discharge to another port, on pay
(e) The Fortuna, 1 Dods. Ad. 81; The Adams, Edw. Ad. 289.
(f) Mitcheson v. Nicol, 7 Ex. 929.
(9) Gould v. Oliver, 2 M. & Gr. 208 ; 4 Bing. N. C. 134 ; 2 Scott, N. R. 241 ; Neill v. Ridley, 9 Ex. 677.
(h) Mitcheson v. Nicol, 7 Ex. 929.
ment of an extra sum for the time so consumed, a cargo cannot be shipped for the intermediate voyage (a).
CASES. 1. Under a charter-party a ship was to proceed to P. and there load a full and complete cargo, the charter-party containing the usual exception of "fire, &c.” The ship, after receiving part of her cargo, caught fire, and had therefore to be scuttled. After being repaired, the ship was tendered to the defendant's agents, who refused to load any further cargo. Held, that the defendant was not discharged from his obligation to load a full and complete cargo (6).
2. A charter-party provided that a ship should proceed to her port of loading, and there load “a full and complete cargo of ore, say about 1,100 tons.” The cargo provided was 1,080 tons, the actual capacity of the ship being 1,210 tons. Held, that the words “say about 1,100 tons,” were words of contract, and that the charterer need not load the ship up to her actual capacity ; but that 3 per cent. was a fair amount of excess over the 1,100 to allow in estimating a full cargo, and therefore that the cargo fell short of the charterer's obligation by 53 tons (c).
3. A ship was chartered to proceed from London to Bombay, and there discharge her cargo, and then to load a cargo with which she was to proceed direct to London. The merchant, however, was to have the right to send the ship to Calcutta from Bombay, on paying for the extra time. Held that the shipowners were not bound, after discharging at Bombay, to load a cargo there for Calcutta (d).
$ 42. Breach of If the freighter, though prevented by accident, fail to charter-party: load within the time agreed on, or, if no date be fixed, 1. By charterer.
within a reasonable time (e), the master may of course sail (f). Then the freight payable will be reduced by any cargo which may have been embarked (9), even though
(a) Cockburn v. Wright, 6 Bing: N. C. 223; sce“ Cases" (3) at end of this $.
(6) Jones v. Holm, L. R., 2 Ex. 335.
(c) Morris v. Levison, 1 C. P. D. 155.
(d) Cockburn v. Wright, 6 Bing. N. C. 223.
(c) Fowler v. Knoop, 4 Q. B. D. 299; Ford v. Cotesworth, L. R., 5 Q. B. 544.
(f) Bradford v. Williams, L. R., 7 Exch. 259; Gosling v. Higgins, 1 Camp. 451.
(9) Puller v. Staniforth, 11 East, 232; Christoffersen v. Hansen, L. R., 7 Q. B. 509.