chartered to carry steel rails from Barrow-in-Furness to East London in South Africa, a port situate on a river with a bar at the mouth, there to be discharged with all despatch according to the custom of the port. Ships of the tonnage of the Cumberland Lassie are unable to cross the bar until a part of their cargo has been discharged into lighters which are warped over the bar to and from the vessel by an ingenious contrivance described in the judgments in the case. When the Cumberland Lassie arrived at East London on August 31, 1875, there were already in the roadstead seven vessels with similar cargoes of steel rails which had the preference in being supplied with lighters. The East London Landing and Shipping Company controlled the warp and owned nine or ten lighters for work in conjunction with the warp; of these only four were suitable to receive the discharge of steel rails, and in consequence a delay of twenty-four days occurred before the unloading of the vessel commenced. The evidence established that the time occupied in discharging the vessel was not greater than the average time occupied in discharging vessels of the like tonnage in the autumn of 1875. At the trial, Lord Coleridge C.J. asked the jury whether in the year 1875, at the port of East London there was any settled practice or custom as to the unloading of sailing vessels laden as the Cumberland Lassie was laden. And if so, whether the vessel was unloaded with all despatch according to that custom. The jury answered both questions in the affirmative, and the charterers had the verdict and a new trial was refused by the Exchequer Division, by the majority of the Court of Appeal, and by the House of Lords. In the Court of Appeal, Cotton L. J. adhered to the opinion expressed by him in Wright v. The New Zealand Shipping Company1, and dissented on the ground that the insufficient number of lighters could not be considered to be a matter regulated by or dependant on the custom or practice of the port, and that in the absence of any express stipulation it was the duty of the charterers to provide appliances of the kind ordinarily in use at the port for the purpose of taking delivery of the cargo. On the other hand, Brett and Thesiger L.JJ. were of opinion that the use of the warp and lighters formed part of the 'custom of the port,' that the charterers did all that they were bound to do, and that they were excused by the custom of the port from doing that which the plaintiffs complained of as an omission. The House of Lords affirmed that decision. If an obligation,' said Lord Selborne L.C., 'indefinite as to time is qualified or partially defined by express or implied reference to the custom or the practice of a particular port, every impediment arising from or out of that custom or practice which 11879, 4 Ex. D. p. 169. the charterer could not have overcome by the use of any diligence ought (I think) to be taken into consideration 1.' reasonable In Good v. Isaacs 2 the charter party provided that the steamship Artemis should load a cargo of oranges in Spain and proceed to Hamburg to be discharged at usual fruit berth as fast as steamer can deliver as customary, and when ordered by the charterers.' It is the practice at the port of Hamburg to discharge fruit by means of cranes into a fruit warehouse. The warehouse and the cranes are under the control of government officials, without whose sanction the appliances cannot be used for the discharge of a cargo. The Artemis was, with the consent of the officials, moored at a usual fruit berth opposite the fruit warehouse on March 8, 1889, but by reason of the warehouse being full, the discharge did not commence until March 11. It was completed on March 12. Charles J. held that the shipowners were entitled to demurrage, but the Court of Appeal reversed his decision on the ground that the cranes could only be used to unload the oranges according to the custom and regulations of the port when, and if, there was room in the warehouse, to receive the fruit as it was discharged. Lord Herschell founded his judgment on the Scotch case Wyllie v. Harrison 3, where the charter party provided that the cargo was to be discharged as fast as the steamer can deliver after having been berthed as customary.' In that case the rule of the port of discharge was that pig iron should not be laid on the quay, but should be discharged into trucks provided by the railway companies. On the arrival of the vessel due notice was given to the railway company by whose lines the cargo was to be forwarded, and the delay was occasioned by the failure of the company to provide the necessary trucks. The Lord President and the other judges of the Court of Session held that the consignees of the pig iron were not liable for demurrage. The last case is the Castlegate S. S. Company v. Dempsey. The Castlegate arrived in Garston Dock on November 10, 1890, and commenced unloading on November 14. On November 15, the labourers refused to unload a ship called the Jessie, from Barrow, which had been blocked' by their Trades Union. The Dock Company locked out the men and brought in strangers; owing to the lock out and the incompetence of the strangers, the unloading of the Castlegate was not completed until December 3. The charterers had contracted to discharge the vessel with all despatch as customary.' Wright J. found as a fact, that the cargo should, 6 in the absence of a strike, have been discharged in ten days, and he held that the charterers were liable for demurrage. He declined to apply the rule adopted by the Court of Appeal in Hick v. Rodocanachi1. He said, 'The result of doing so would, in effect, be to give to a charter party which specifies that the unloading is to be" with all despatch as customary," the same meaning as if it contained no such words,' and he distinguished Postlethwaite v. Freeland 2 on the ground that there the impediments arose from or out of the custom and position of the port itself, and were not extraneous, such as a strike which in no way arises from or out of the custom of the port. The Court of Appeal reversed this decision. The headnote of the decision is, Held that the words "with all despatch as customary fixed no time for unloading, and that therefore the discharge must be carried out within a reasonable time in the actual circumstances existing at the port.' Mr. Kennedy, Q.C. who argued for the appellants, is reported to have contended that where there was a fixed time for unloading, the charterers took the risk of delay, but not where no fixed time was named for unloading: that there were only these two classes and that the words 'to be discharged with all despatch as customary' did not refer to time but meant with all despatch, using the customary means of despatch available at the port under the actual circumstances. The Master of the Rolls could not distinguish the case from Postlethwaite v. Freeland 2, and quoted a passage from his own judgment in that case: To me this clause " with all despatch according to the custom of the port" seems to mean that the ship was to be discharged with all such despatch as was consistent with the manner and process wherewith every vessel going to that port is discharged 3. That is he accepted the argument of the appellants that the clause regulated the manner and not the time of the discharge, and that, there being no other provision applicable to the time of discharge, the rule in Hick v. Rodocanachi1 governed the case. Mr. Carver in his book on The Law of Carriage by Sea, writes: When the time is to be with "usual despatch of the port" or "in the usual and customary time," this is in effect giving a fixed time for the work, namely such a time as would under ordinary conditions be usually occupied at that port,' and he doubts the decision in Rodgers v. Forrester 5 on the ground that it makes the phrase 'in the usual and customary time' equivalent to 'in the usual and customary manner.' This passage is in agreement with the judgment of Wright J., but opposed to that of the Court of Appeal in Castlegate S. S. '91, 2 Q. B. 626. 1st edition, § 611. 2 1880, 5 Ap. Ca. 599. 1879, 4 3 Ex. D. p. 164. '92, 1 Q. B. 54. Company v. Dempsey, for the latter has decided that the word customary refers to the mode and not to the time of unloading. In Postlethwaite v. Freeland in the House of Lords, Lord Blackburn said: 'I do not think that this (the clause as to discharging “with all despatch as customary ") alters the question, as the express reference to the custom of the port of discharge is no more than what would be implied. For I take it that a charter party in which there are stipulations as to loading or discharging a cargo in a port is always to be construed as made with reference to the custom of the port of loading or discharge as the case may be 2? The judgment of Mansfield C.J. in Burmester v. Hodgson is precisely to the same effect 3. If this be so, the result of the cases is that the merchant either engages by the contract to unload in a certain number of days, or he does not so engage; either he promises absolutely to discharge the vessel in a certain number of days after the voyage has ended, or he promises to use reasonable diligence, under the actual circumstances existing at the time of the discharge. In the absence of express stipulation, in the first case he is, and in the second case he is not, liable to pay damages where he is not in default, for the detention of the ship by causes over which he has no control. In the first case the loss resulting from the detention of the ship by strikes, bad weather, crowded docks, &c., falls on the merchants, in the second case on the shipowners. It would be well if the House of Lords, which has not spoken on this subject since 1880, could speak again with authority, for in commercial law it is of more importance to attain to certainty than to abstract justice. But for the present shipowners may be advised to press for the insertion of definite laydays in charter parties and bills of ladings, and merchants should strive to have the time for discharge left vague and uncertain. ΑΝ MARRIAGE LAW IN MALABAR. N interesting attempt is now being made to put on a better footing the family law of the people who follow what is called the Marumakkathayam rule. The chief representatives of the classes subject to this rule are the Nairs, and, as they stand in the social and intellectual scale high among the peoples of Southern India, it is no matter for surprise that, in the place of rules indicating a backward state of civilization, they should seek to establish a system more in accordance with modern ideas. According to ancient custom regulating the lives of about seven hundred thousand persons in Malabar the family is based on the matriarchal system; the line of descent is traced from the common female ancestress, and it is not a man's own children but his sister's sons that may be said to be his heirs. The family or tarwad in a simple form consists of a mother, her brothers and her children, living together in one house. The property of the family, other than that acquired by any individual member by his own exertions, belongs to them jointly, and except by common consent is indivisible. Each member is entitled to be maintained out of the profits of it, but he cannot otherwise deal with any part of it as his own. The management and control of it is vested in the eldest male, who is called the karnavan. Property acquired by an individual is his own to deal with it as he pleases during his life-time, but he cannot dispose of it by will, for on his death it becomes merged in the family property. This state of things makes it probable that the institution of marriage was unknown, and other circumstances in Malabar point in the same direction. In the opinion of the High Court, expressed more than twenty-five years ago and since acted on, the union of the sexes is simply a state of concubinage into which the woman enters of her own choice, being at liberty to change her consort when and as often as she pleases. There is no reason to suppose that the Court will alter this opinion or dignify as a marriage a connection which either party may terminate for any reason or no reason. Nevertheless in point of fact it would be a gross libel on the Nairs to say that public opinion sanctions a system of promiscuous intercourse. Polyandry, if in strictness it can be said ever to have existed among a people ignorant of marriage, has disappeared, and it is said that the free |