having a right to receive them. L. R., 4 H. L. 317.

Meyerstein v. Barber, L. R., 2 C. P. 661;

Where the bill of lading provided "average, if any, to be adjusted according to British custom," the admitted custom of average adjusters is. made part of the contract, and the custom, though erroneous, is binding. Stewart v. W. India, &c. Steamship Co., L. R., 8 Q. B. 88. See also cases cited, ante, p. 400.

The mortgagee of a ship is bound by bills of lading given by the mortgagor before the mortgagee took possession of the ship. Keith v. Burrows, 2 Ap. Ca. 636, D. P.

As to stamp duties on bills of lading, vide ante, p. 232.

Shipowner against Charterer or Merchant.

Although there is a charter-party by deed, yet if there is a subsequent agreement by parol, for the use of the ship, at a period before the charterparty attaches, but embodying its terms, this may be proved, and the demand recovered as on a simple contract. White v. Parkin, 12 East, 578. So, for other matters of agreement, express or implied, extra the contract. Fletcher v. Gillespie, 3 Bing. 635.

Where a charter-party contained the clause "in the event of war," &c., "this charter-party to be cancelled," it was held to be determined on war breaking out without the election of either party. Adamson v. Newcastle, &c. Ins. Assoc., 4 Q. B. D. 462, diss. Lush, J.

Compliance with warranties or conditions.] In an action for not loading, the plaintiff must prove compliance with warranties or conditions. On the mere contract by the shipowner to carry goods, shipped on board his vessel, there is no implied condition that his vessel shall be seaworthy. Schloss v. Heriot, 14 C. B., N. S. 59; 32 L. J., C. P. 211, post, p. 419. By undertaking that the vessel shall be seaworthy, at the time of receiving the cargo, there is no warranty against "suspicion" of unfitness; therefore, where the master took antimony on board as ballast, so as to fill no more room than ballast, and the jury found it not injurious to a cargo of tea, it was held that the charterers, who were bound to load a "full cargo" of tea, were liable for refusing to put it on board, although this ballast might raise suspicions" as to the ship's fitness for such a cargo. Towse v. Henderson,

66

4 Exch. 890.

The description of a ship in the charter-party may be a warranty, or condition precedent. Thus, if it is described as of the class called A 1, and it is not so, it would be an answer to an action for not loading; but, such a warranty only applies to the classification at the time of the contract. Hurst v. Usborne, 18 C. B. 144; 25 L. J., C. P. 209 ; Trench v. Newgass, 3 C. P. D. 163, C. A.; Routh v. Macmillan, 2 H. & C. 750; 33 L. J. Ex. 38. So, now at sea; having sailed three weeks ago," is a condition; Ollive v. Booker, 1 Exch. 416; though had "or thereabouts" been added, as is wrongly stated in the marginal note in 1 Exch., the decision would probably have been otherwise. Per curiam in Behn v. Burness, infra. So, a description of the ship as "now in a particular port,” amounts to a warranty; Behn v. Burness, 3 B. & S. 751; 32 L. J., Q. B. 204, Ex. Ch.; and, in arriving at the true construction of the document, the court must look at the surrounding circumstances (as found by the jury) at the time the contract is made. S. C. So, a stipulation to sail, or be ready for loading, on a particular day is a condition precedent. Glaholm v. Hays, 2 M. & Gr. 257; Oliver v. Fielden, 4 Exch. 135; Croockewit v. Fletcher, 1 H. & N. 893; 26 L. J., Ex. 153; Seeger v. Duthie, 8 C. B., N. S. 45, 72; 29 L. J., C. P. 253; 30 L. J., C. P. 65.

In

Shipowner against Charterer, &c.—Demurrage.

419 such case readiness to sail on a particular day is not disproved by the fact that the captain, bona fide, though wrongly, thinking the ship already sufficiently loaded, refused to receive additional goods on board, and the dispute, decided ultimately against the captain, caused delay in sailing until after the day. S. C. Where the charter-party is for a stipulated time, time is of the essence of the contract. Tully v. Howling, 2 Q. B. D. 182, C. A. Delay, caused by the excepted perils, when so great as to put an end in a commercial sense to the speculation, entered into between the shipowner and charterers, exonerates the charterer from loading; Jackson v. Union Marine Insur. Co., L. R., 8 C. P. 572; L. R., 10 C. P. 125, Ex. Ch. ; such delay has not, however, this effect under any other circumstances; Hurst v. Usborne, ante, p. 418; Tarrabochia v. Hickie, 1 H. & N. 183; 26 L. J., Ex. 26; Jones v. Holm, L. R., 2 Ex. 335; but, gives only an action for damages. MacAndrew v. Chapple, L. R., 1 C. P. 643, 648, per Willes, J. Where the

ship was not chartered for any particular cargo, and a small loss of freight was all the loss occasioned by the delay: it was held, that the stipulation that the ship should with all convenient speed proceed to E., and there load a full cargo was not a condition precedent. S. C.

A statement of tonnage is not a warranty, or condition precedent. Barker v. Windle, 6 E. & B. 675; 25 L. J., Q. B. 349, Ex. Ch. See Pust v. Dowie, 5 B. & S. 20; 32 L. J., Q. B. 179; 5 B. & S. 33; 34 L. J., Q. B. 127, Ex. Ch. To an action by shipowner, against shipper, for contributions to general average, it is no answer that the ship was not seaworthy, unless it be shown that its unseaworthiness at the commencement of the voyage caused the loss, in which case it is a good defence, in order to avoid circuity of action. Schloss v. Heriot, 14 C. B., N. S. 59; 32 L. J., C. P. 211. the ship be not fit to carry a reasonable cargo of the kind for which the ship was chartered, the charterer is not bound to load. Stanton v. Richardson, L. R., 7 C. P. 421 ; L. R., 9 C. P. 390, Ex. Ch.

If

The question as to what representation amounts to a condition precedent, or to a warranty, depends entirely on the intention of parties, as apparent on the contract itself; there is no general rule that representations in a charter-party are equivalent to warranties, or to conditions precedent. Croockewit v. Fletcher, ante, p. 418; see MacAndrew v. Chapple, supra.

San

Demurrage.] It is usual for the merchant to undertake to load and unload within a certain number of days, called lay days; with liberty to delay the ship for a longer specified period on payment of a daily sum, which, as well as the delay itself, is called demurrage. If the charter-party contains a fixed number of demurrage days, as well as lay days, and the ship is, by the fault of the merchant, delayed beyond them both, that is a detention, and is to be compensated for by damages; but, where no demurrage days are mentioned, all detention beyond the lay days is demurrage. guinetti v. Pacific Steam Navigation Co., 2 Q. B. D. 238, 251, per Brett, L. J. The days are, in the absence of contrary usage, to be taken as consecutive or "running" days; Brown v Johnson, 10 M. & W. 331; but, by the custom of the port of London, the days in the clause of demurrage mean working days, which exclude Sundays and holidays at the custom house. Cochran v. Retberg, 3 Esp. 121. For the purpose of a demurrage clause, a day is to be taken as of its natural length of 24 hours. Laing v. Hollway, 3 Q. B. D. 437, C. A. A fraction of a day counts as a day. Commercial S. S. Co. v. Boulton, L. R., 10 Q. B. 346. The lay days, allowed for loading or discharge, begin to run when the vessel arrives at the usual place of loading, or discharge, and not at the port merely. Brereton v. Chapman, 7 Bing. 559; Bastifell v. Lloyd, 1 H. & C. 388; 31 L. J., Ex. 413; Nelson v. Dahl, post, p. 421. Where the place of discharge is a dock, the days run from the

time the ship enters the dock, and not from when she reaches her berth for loading or discharge; Brown v. Johnson, ante, p. 419; Davies v. McVeagh, 4 Ex. D. 265, C. A.; see however Murphy v. Coffin, 12 Q. B. D. 87, contra. When the ship has reached her place of discharge, the days continue to run, even though excepted perils cause delay in unloading; Thiis v. Byers, 1 Q. B. D. 244. Where goods are shipped under a bill of lading, which allows 3" days to discharge the whole cargo, or 30l. per day demurrage," the days run, although the consignee cannot take his goods away, owing to the default of the consignees of other goods in not removing their goods. Straker v. Kidd, and Porteus v. Watney, 3 Q. B. D. 223; Id., 534, C. A. As to damages for detention, see Jones v. Adamson, 1 Ex. D. 60. The lay days allowed for loading and for unloading are usually to be kept distinct. See Marshall v. Bolckow, 6 Q. B. D. 231.

When the charter-party is silent as to the time of loading, reasonable time under ordinary circumstances is implied, and a strike in the collieries, whence the freighter was to get his cargo, is no excuse for delay. Adams v. R. Mail Co., 5 C. B., N. S. 492; 28 L. J., C. P. 33. So, where a cargo was to be loaded with "usual dispatch," this was held to mean usual dispatch, of persons who have a cargo in readiness, for the purpose of loading, and did not excuse a merchant, who had been prevented, by frost, from bringing his cargo to the place of loading. Kearon v. Pearson, 7 H. & N. 386; 31 L. J., Ex. 1; see also Fenwick v. Schmalz, L. R., 3 C. P. 313. With regard to unloading, both the shipowner and merchant are bound to use reasonable diligence, with regard to all the circumstances. Ford v. Cotesworth, L. R., 4Q. B. 127; L. R., 5 Q. B. 544, Ex. Ch. And, neither party can sue the other, for delay arising from a cause over which the latter had no control. S. C.; Cunningham v. Dunn, 3 C. P. D. 443, C. A. The question as to whether the defendant has loaded or unloaded within a reasonable time where the contract is "to be ready to load or unload in regular turns" is to be governed by the usage of the port as to the turns or order of loading or unloading. Leidemann v. Schultz, 14 C. B. 38; 23 L. J., C. P. 17; see Shadforth v. Cory, 32 L. J., Q. B. 379, Ex. Ch.; Bastifell v. Lloyd, ante, p. 419; Lawson v. Burness, 1 H. & C. 396; Cawthorn v. Trickett, 15 C. B., N. S. 754; 33 L. J., C. P. 182; Tapscott v. Balfour, L. R., 8 C. P. 46; Ashcroft v. Crow Orchard Colliery Co., L. R., 9 Q. B. 540; and Postlethwaite v. Freeland, 5 Ap. Ca. 599, D. P., where the earlier cases are collected and reviewed. See also ante, p. 21, et seq. Where there is no usage of the port, the charterer must discharge the cargo in a reasonable time. Fowler v. Knoop, 4 Q. B. D. 299, C. A. When the charter-party is entered into by the shipowner with full knowledge of all the circumstances under which the cargo is to be obtained and loaded, delay in getting the cargo may be an excuse. Harris v. Dreesman, 9 Exch. 485; 23 L. J., Ex. 210. So, where the charter-party provided that "detention by ice should not be reckoned as laying days," it was held that this must be construed with reference to the particular nature of the place of export, S., and, as there were no warehouses there, and the cargo had to be brought down to S. in boats for loading, a detention of these boats by ice was within the exception of the charter-party. Hudson v. Ede, L. R., 2 Q. B. 566; L. R., 3 Q. B. 412, Ex. Ch. But, the exception does not in general apply to delay caused by ice before the cargo has reached the limits of the place of loading. Kay v. Field, 10 Q. B. D. 241, C. A.; Coverdale v. Grant, 11 Q. B. D. 543, C. A.

The defendant, an English subject, chartered the plaintiff's ship to take on board a cargo at Odessa, a port of Russia, 45 running days being allowed for loading and unloading. When there, the defendant's agent told the master that there was no cargo for him and urged him to sail; the master refused; and continued to demand a cargo until, the running days not having

Shipowner against Charterer, &c.-Freight and Damages. 421

expired, war was declared between England and Russia: held, that no action would lie against the defendant, as the refusal by his agent, not having been accepted by the master as a renunciation of the contract, there had been no breach of contract by the defendant, when the war put an end to it. Avery v. Bowden, 5 E. & B. 714; 25 L. J., Q. B. 49; 6 E. & B. 962; 26 L. J., Q. B. 3, Ex. Ch.; Reid v. Hoskins, 5 E. & B. 729; 25 L. J., Q. B. 55; 6 E. & B. 953; 26 L. J., Q. B. 5, Ex. Ch.

Where the charter makes "the charterer's liability to cease when the ship is loaded, the captain having a lien upon the cargo for freight and demurrage," the charterer is discharged from liability incurred for demurrage during the loading; Francesco v. Massey, L. R., 8 Ex. 101; Kish v. Cory, L. R., 10 Q. B. 553, Ex. Ch.; Sanguinetti v. Pacific Steam Navigation Co., 2 Q. B. D. 238, C. A.; and the term demurrage will include damages for detention, not strictly demurrage. S. C. cited ante, p. 419. The clause extends to all liability under the charter arising after the ship is loaded. French v. Gerber, 1 C. P. D. 737; 2 C. P. D. 247, C. A. See further on modifications of the clause, Lister v. Van Haansbergen, 1 Q. B. D. 269, and Lockhart v. Falk, L. R., 10 Ex. 132. As to when demurrage is chargeable on goods delivered under a bill of lading, on the ground that the bill of lading incorporates the provisions of the charter-party, vide post, p. 428.

Freight and damages.] Freight is regulated by the contract, or, if none, by usage, or a quantum meruit, or by the course of former dealing between the parties. As a general rule, no freight is due until the goods be carried to the destined port. See Duthie v. Hilton, L. R., 4 C. P. 138, cited post, p. 425. Where charter-party freight is payable on unloading and right delivery of the cargo, the freight is not earned, until the unloading and delivery of the whole cargo has been completed. Brown v. Tanner, L. R., 3 Ch. 597. The delivery and payment are concurrent acts. Paynter v. James, L. R., 2 C. P. 348; W. N. 1868, p. 141, Ex. Ch.

Where a ship is to proceed to certain "docks or as near thereto as she may safely get," it is not sufficient for her to go to the dock gates only; Nelson v. Dahl, 6 Ap. Ca. 38, D. P.; if she cannot enter on arrival there, by reason of the docks being full, her obligation to wait to enter depends on the question of fact, whether, under all the circumstances, it is reasonable that she should so wait; if it be not reasonable, the charterer must take delivery as near to the dock as the ship can safely get. S. C. See on the construction of the words in a charter-party "as near thereto as she may safely get," the judgment of Ld. Blackburn in S. C., Id. pp. 50, 51, and cases there cited. Where a ship is to go to a safe port, or so near thereto as she may safely get, and "always lie and discharge afloat," the master is not bound to discharge at a port where she could not so lie without being lightened. The Alhambra, 6 P. D. 68, C. A. Where the ship is to unload at S., or "so near thereto as she may safely get at all times of the tide and always afloat," and pay demurrage for delay, and she cannot, on account of the tide, reach S. until 4 days after she had arrived at K. R., the nearest point where she could float; it was held that demurrage was payable from the arrival at K. R. Horsley v. Price, 11 Q. B. D. 244. Where by the charter-party a ship was to proceed with a cargo to a port, "to discharge in a dock as ordered on arriving if sufficient water, or so near thereunto as she may safely get always afloat," it was held she was only bound to discharge in a dock named if there was sufficient water when the order was given. Allen v. Coltart, Id. 783.

Where the shipowner carries the cargo to the port of destination, but from the nature of the cargo, is unable to land it there, the freight becomes payable; and, if the prudent course for the master to adopt is to bring the cargo

home again, he is entitled to be paid back-freight as well as the expenses incurred in endeavouring to land the cargo. Cargo ex Argos, L. R., 5 P. C. 134, 155. So, freight is payable where the cargo is delivered at a port included in a charter-party, but not at the port named by the charterer, that port having become dangerous for the ship, a foreign one, by reason of war having broken out. The Teutonia, L. R., 4 P. C. 171.

The freight is sometimes made wholly or partly payable at the port of loading. If part of it is made payable on the "final sailing" of the ship from the port of loading, it is not payable if the ship is wrecked in an artificial canal within the limits of the port on its way out to sea, with the clearances on board, and all ready for sailing; Roelandts v. Harrison, 9 Exch. 444; 23 L. J., Ex. 169; and, where the ship has got out of port and cast anchor some miles off, but was not in a condition to proceed on her voyage, the shipowner was held not entitled to freight payable "on sailing." Thompson v. Gillespie, 5 E. & B. 209; 24 L. J., Q. B. 340. But, it is otherwise where the ship has gone some miles to sea in a state ready for the voyage, although not beyond the fixed limits of the port; and it is immaterial that she has been driven back by stress of weather into the port in its commercial sense. Price v. Livingstone, 9 Q. B. D. 679, C. A. See further, ante, p. 383. Payments made in advance, on account of freight, cannot be recovered back, though the ship be lost. Anon., 2 Show. 283; Byrne v. Schiller, L. R., 6 Ex. 20; Id. 319, Ex. Ch.; Allison v. Bristol Marine Insur. Co., 1 Ap. Ca. 209, D. P. Where the freighter has contracted to pay a minimum freight, or the highest that the shipowner could "prove to have been paid" for ships on the same voyage, the plaintiff, who claims a higher freight, must prove by evidence that such higher freight was actually paid, or contracted to be paid, on a voyage between the two places; and proof of the highest current freight is not enough. Gether v. Capper, 15 C. B. 696 ; 24 L. J., C. P. 69.

Where the merchant agreed to find a full return cargo of various articles, each to pay a stipulated freight from the port, but he finds none, or articles not enumerated, the measure of damage is the average freight of all the articles. Thomas v. Clarke, 2 Stark. 450; Capper v. Forster, 3 N. C. 938. When the owner stipulates for a full cargo, he is entitled to full freight, as if a full cargo had been put on board, irrespective of the tonnage of the ship mentioned in the charter. Hunter v. Fry, 2 B. & A. 421. Aliter, when the amount of cargo is mentioned. Morris v. Levison, 1 C. P. D. 155. Where the charter-party stipulated for a "full and complete cargo of sugar and other lawful produce," rates were mentioned for timber and other goods, and the charter-party proceeded, "other goods, if any be shipped, to pay in proportion to the foregoing rates, except what may be shipped for broken stowage, which shall pay as customary;" a full cargo of mahogany logs was shipped; it was held that the shipper was bound to supply broken stowage to fill up the interstices. Cole v. Meek, 15 C. B., N. S. 795; 33 L. J., C. P. 183. Where the contract stipulated for a full cargo of wool, tallow, bark, hides, and other legal merchandise, fixing the freight and quantity of each, except of wool and "other merchandise," it was held, that the merchant might load entirely with "other" legal merchandise, but, must pay freight as if the cargo had consisted of the stipulated quantity of tallow, bark, and hides, and the residue of wool. Cockburn v. Alexander, 6 C. B. 791. In this case, the court considered the words "other merchandise" applying to goods producing the amount of freight, contemplated by the contract, and that the difference was the measure of damage. Warren v. Peabody, 8 C. B. 800, was decided on the same principle. But, where the charterer undertook to load “ a full and complete cargo of oats or other lawful merchandise," to be delivered by the shipowner on payment of freight

as