A DOUBTFUL POINT IN COMMERCIAL LAW. HIS article deals with the liability of a merchant, where he is THIS not in default, to pay damages to a shipowner for the detention of a ship at the port of discharge by causes over which the merchant has no control. In the last few months in three cases the decisions on this point by Mathew J., Charles J., and Wright J., at Nisi Prius, without a jury, have been reversed by the Court of Appeal. These cases presented no unusual features, the contracts were in common and recognised forms, the causes of delay (strikes and over-crowded berths and warehouses) are of constant occurrence, and it is strange that all three cases were not concluded by authority so that there should be no room for difference of judicial opinion as to the rule of law applicable to the facts. It is a peculiar coincidence that in each of the three cases the learned judge was persuaded to give judgment for the plaintiff shipowners, and in each case wrongly, according to the Court of Appeal. In charter parties and bills of lading the duty of the merchant to unload the ship at the port of discharge is dealt with in three ways: (1) a certain number of days are allotted, 'The ship to be discharged at such wharf or dock in fourteen like working days1;' 'Thirteen running days, Sundays excepted, to be allowed the freighters for sending the cargo alongside and unloading, but in no case should more than seven days be allowed for unloading 2; ' 'The cargo to be unloaded at the average rate of not less than 100 tons per working day 3,' &c. (2) The contract is entirely silent as to the time allowed for unloading. (3) The contract contains some reference to the custom or practice of the port of discharge: The said freighter should be allowed the usual and customary time to unload the said ship at her port of discharge 5;' The cargo to be discharged with all despatch according to the custom of the port; To be discharged at usual fruit berth as fast as steamer can deliver as customary;' To be discharged with all despatch as customary,' &c. It will be well to consider each of these 1 Thiis v. Byers, 1876, 1 Q. B. D. 245. 2 Budget v. Binnington, 1890, 25 Q. B. D. 320; '91, 1 Q. B. 32. Hick v. Rodocanachi, '92, 2 Q. B. 626. Postlethwaite v. Freeland, 1880, 5 Ap. Ca. 599. Good v. Isaacs, '92, 8 T. L. R. 476. Castlegate S. S. Company v. Dempsey, 1892, 1 Q. B. 54 and 8 T. L. R. 523. classes separately, though the latest decision in the Court of Appeal went on the ground that for the purpose of ascertaining the liability of the merchant for the detention of the ship at the port of discharge, class (2) could not be distinguished from class (3). (1) Where the parties have in the contract specified a certain number of days for the unloading of the cargo there is little difficulty. The detention of the ship was caused by the crowded state of the London Docks in Randall v. Lynch1, by rough weather on the Tees at Middlesborough in Thiis v. Byers2, by the delay of other consignees in removing cargo placed above the grain of the defendant in Porteus v. Watney 3, by the strike of the Bristol Dock labourers, in November, 1889, in Budgett v. Binnington. In these cases the merchant was held liable to compensate the shipowner for the detention of the ship beyond the specified number of days though he was not in default, and could not have prevented the delay. Where the time is thus expressly limited and ascertained by the terms of the contract the merchant will be liable to an action for damages, if the thing be not done within the time, although this may not be attributable to any fault or omission on his part, for he has engaged that it shall be done 5. The contract, when it is in this form, 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 charterer or the holder of the 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. In Budgett v. Binnington the cargo of grain was being discharged at Bristol according to the custom of the port by the joint action of the shipowners and the consignees, who employed separate stevedores, who in their turn engaged the labourers. After the unloading had proceeded for three days, the labourers employed by both firms of stevedores struck work, and for four days no cargo was discharged. The jury found that in consequence the shipowners were not able and were not ready and willing to perform their part of the discharge. Notwithstanding this finding the Queen's Bench Division gave judgment for the shipowners, and this was affirmed by the Court of Appeal. It was decided that there is no implied condition, precedent to the liability of the merchant, that the shipowner should be able and willing to perform his part of the contract, and that the only defence open to 1 1809, 2 Camp. 352. 2 1876, I Q. B. D. 245. 3 1878, 3 Q. B. D. 535. 1890, 25 Q. B. D. 320; '91, 1 Q. B. 35. Abbott on Shipping, 5th edition, p. 181, the last edition published in the lifetime of Lord Tenterden. The last words are put in italics by Lord Tenterden. the merchant is that there were no available means of performing the contract owing to the default of the shipowners. The only condition attached is that the lay days shall have commenced and run out. Directly the shipowner shows this state of facts he has proved his case, and it lies on the other side to show, not that there has been no breach of contract, but that he is excused from the performance. In other words, his case is one of confession and avoidance, and the whole burden of proof is upon him.' 'The strike was an unforeseen occurrence, and nobody's fault, and one of those risks which the merchant contracted to bear. I can therefore find no fault in the shipowner or those for whom he is responsible to excuse the breach of contract by the merchants 2.' (2) If the contract is silent as to the time allowed to the merchant for unloading the cargo at the port of discharge, the question is, What is the liability which the law imposes by implication? 6 6 In Ford v. Cotesworth the agreement in the charter party was that the said vessel should deliver the said cargo in the usual and customary manner agreeable to bills of lading and so end the voyage,' but there was no stipulation as to time. The delay was caused by the refusal of the authorities at Callao, the port of Lima, to allow the cargo to be landed at the Custom House between April 11 and May 12, 1866, in consequence of the apprehended bombardment of the port by the Spanish fleet. At that time there was war between Spain and Chili, and Peru was involved in the hostilities. Under the direction of Cockburn C.J., the jury found that there had been no unreasonable delay either looking to the ordinary state of things at the port or looking to the existing, that is the extraordinary circumstances,' and the defendants, the charterers, had the verdict which they retained in the Court of Queen's Bench and in the Exchequer Chamber. We think,' said Blackburn J., that the contract which the law implies is only that the merchant and shipowner should each use reasonable despatch in performing his part. If this be so, the delay having happened without fault on either side, and neither having undertaken by contract, express or implied, that there should be no delay, the loss must remain where it falls.' It should be noticed that this decision did not proceed upon the ground that both parties were equally in default, and that neither could complain of the other, but upon the ground that neither party was in default, that is, that the shipowners had no cause of action against the charterers 5. In Wright v. The New Zealand Shipping Company Limited, the deten1 Per Lord Esher M.R., 1891, 1 Q. B. 38. 2 Per Lopes L.J., '91, 1 Q. B. 41. 1868, L. R. 4 Q. B. 127, and 1870, L. R. 5 Q. B. 544. 4 1868, L. R. 4 Q. B. at p. 137. 5 See Cunningham v. Dunn, 1878, 3 C. P. D. 443. tion of the ship at Port Lyttleton, New Zealand, was caused by the delay of the firm of lightermen employed by the charterers to send lighters alongside the ship. At the time there was a 'rush' of vessels at the port: about twenty were lying there, one half of which either belonged to or were chartered by the defendants, and it was proved at the trial that after the arrival of the vessel, in respect of which the action was brought, the agents of the defendants gave preference as to discharging cargoes to vessels with 'round' charters, that is to vessels chartered for the voyage from a British port and back again. The charter party contained no reference to the time or to the manner of unloading the cargo at Port Lyttleton. At the trial Pollock B. told the jury that they were to take into account the fact that the port was full of vessels, and the charterers had the verdict. The Exchequer Division and the Court of Appeal ordered a new trial on the ground of misdirection, and the charterers paid into court a sum of money which the shipowners accepted in satisfaction of their claim. This decision can be supported only on the ground that the facts showed that the charterers were responsible for the delay, and had brought their difficulties on themselves, and that the case is an illustration of the principle laid down by Lord Ellenborough in Hill v. Idle1, where the merchant was unable to unload in the usual time because he had shipped a cargo of French wines from Oporto, and he was not allowed to unload them without an order from the Treasury, and a month elapsed before the order was obtained. But the judgments of the Court of Appeal in Wright v. The New Zealand Shipping Company 2, and the reasons there given are at variance with the judgments of Lord Selborne and Lord Blackburn in Postlethwaite v. Freeland 3. In Hick v. Rodocanachi + the unloading was delayed by the London Dock strike of 1889. The charterers were protected by the cesser clause in the charter party, and the defendants were consignees of the cargo under a form of bill of lading which contained no reference to the charter party, and no limit of time within which the cargo was to be discharged. At the trial without a jury Mathew J. gave judgment for the shipowners, on the ground that by implication the consignees had undertaken to unload within a reasonable time and had failed to discharge that obligation. The Court of Appeal reversed this decision. In Wright v. The New Zealand Shipping Company 2 the judges had implied a contract to unload in a reasonable time judged by ordinary circumstances, and the cases show the existence of two distinct and opposing views, (1) that the time is to be measured by something which may be ascertained more or less 2 1879, 4 Ex. D. 165 n. 1 1815, 4 Camp. 327. 3 1880, 5 Ap. Ca. 599. See pp. 609, 616, and 617. 4 '91, 2 Q. B. 627. exactly when the contract is entered into, reasonable time under ordinary circumstances; (2) that the time is to be measured by the actual emergent events, and by the diligence or negligence of the parties concerned under those events, by a measure which cannot be forecast at the time of the contract, but can only be ascertained by the event. Fry L.J. declared that there was a very even balance of authority in favour of each view, and this made the case difficult to decide, but a consideration of two railway cases (Biddon v. G.N.R. Co.1, where a snow storm delayed a cattle train, and Taylor v. G.N.R. Co. 2, where the delay was owing to the breakdown of a train belonging to another company which had running powers over the defendant's line), in which it had been held that in the absence of any stipulation the obligation of a common carrier must be measured by his diligence or negligence in all the circumstances of the case, tended in favour of the view that reasonable time means reasonable time under all the circumstances of the case. The decision of the Court of Appeal proceeded on the maxim, 'Lex non cogit ad impossibilia.' 'We have,' said Lindley L.J., 'to do with implied obligations: I am aware of no case in which an obligation to pay damages is ever cast by implication upon a person for not doing that which is rendered impossible by causes beyond his control 3." (3) The third class of cases presents the greatest difficulties, but it is to be hoped that two very recent decisions of the Court of Appeal have cleared the air. The clause containing the reference to the usage or custom of the port as to the discharge of a cargo takes various forms, and strictly a decision as to the meaning of one form is not conclusive authority as to the meaning of another form. An examination of some cases will show how far it is possible to deduce a general rule. In Rodgers v. Forrester the shipowner agreed that 'the freighter should be allowed the usual and customary time to unload the said ship or vessel at her port of discharge.' Owing to the crowded state of the London Docks the ship could not get a berth and deliver her cargo of wines from August 26th to October 20th, 1809. Lord Ellenborough said, 'What is the usual and customary time for a ship to unload a cargo of wines in the port of London? According to the evidence, when the ship gets a berth by rotation, and the wines can be discharged into the bonded warehouse;' and the defendants had the verdict. In Postlethwaite v. Freeland 5 the ship Cumberland Lassie was 11859, 28 L. J. Ex. 57. 3 21866, L. R. 1 C. P. 385. '91, 2 Q. B. p. 638. |