Scottish Court of Session Decisions

This action was brought by Messrs La Cour & Watson, merchants and ship brokers in Leith, owners of the steamer Enniskillen, against George Donaldson & Son, timber merchants, Alloa, for (1) £100, for demurrage of the said vessel for four days, and (2) the sum of £5, Is., 11d. as the ballance of freight due to the pursuers.

The Lord Ordinary pronounced the following interlocutor

“ Edinburgh, 23d December 1873.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, including the proof, finds it established by the pursuers that there is resting-owing to them by the defenders, 1st, the sum of £100 sterling in respect of demurrage; and 2d, the sum of £5, Is. 11d. sterling in respect of freight, with interest on these sums respectively at the rate of 5 per cent. per annum, from the 11th of July 1873 till payment, and decerns accordingly against the defenders for payment to the pursuers of said sums and interest: Finds the pursuers entitled to expenses; allows an account thereof to be lodged, and remits it, when lodged, to the Auditor to tax and report.

Note.—The pursuers' claims for demurrage and balance of freight have reference to a cargo of railway sleepers which the pursuers, as owners of the steamship ‘Enniskillen,’ contracted to bring from a port in Sweden to the defenders at South Alloa.

According to the charter-party, which is dated 27th May 1873, it was agreed between the parties, the pursuers, as owners of the ‘Enniskillen,’ on the one hand, and the defenders, as the affreighters, on the other, that the steamer, having taken on board a cargo of railway fir sleepers, should proceed therewith to ‘South Alloa, or as near thereunto as she may safely get,’ and (with the usual exceptions of the act of God, the Queen's enemies, &c.) ‘deliver the same to the affreighters, or to their assigns,’ on being paid freight in the manner and at the rates therein stipulated; and the charter-party farther bears, ‘cargo to be brought to and taken from alongside at merchant's risk and expense. The steamer to be loaded and discharged as fast as she can load and deliver, demurrage over and above the said lying days at £25 per day.’

The ‘Enniskillen’ arrived with her cargo of railway sleepers at South Alloa on Tuesday evening the 1st of July 1873. She could not then, however, or until the Monday following, the 7th of July, get alongside of the quay but remained moored about 50 or 60 yards from the quay. Part of the cargo was delivered to and received by the defenders on Saturday the 5th of July, and the remainder of it on the Monday, Tuesday, Wednesday. Thursday, and Friday of the following week. So far the Lord Ordinary did not understand there was or could be any dispute. But while the pursuers maintain that four lay days only—viz., Wednesday the 3d of July, the day after the arrival of

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the ‘Enniskillen’ at South Alloa, and the following Thursday, Friday, and Saturday, ought to be allowed for discharging her cargo, and that the five days of the next week during which she was unloading must be reckoned for demurrage, the defenders dispute that they are liable for any demurrage at all. In order to arrive at a sound conclusion on the dispute thus raised between the parties, there are various points of interest and importance in the law and practice of shipping which require explanation.

1. The first and main question is, What, in this case, and in the true sense of the charter-party, must be held to be the place at which the defenders were bound to take delivery of the cargo? Was it where the steamer was moored on her arrival at South Alloa, as the pursuers contend, or at the quay at which she was ultimately berthed, as contended for by the defenders?

It is important, with reference to these questions, to keep in view that, according to the terms of the charter-party the destination of the ‘Enniskillen’ was ‘South Alloa, or as near thereunto as she may safely get.’ Nothing is said about her being berthed at the quay, and it is not left to the discretion of the defenders to fix any particular point at South Alloa where her cargo should be discharged. It is clear from the proof, however, that the steamer could not have got a berth at any quay on her arrival at South Alloa, or sooner than she did—viz., on Monday the 7th of July. But it is sufficiently proved, the Lord Ordinary thinks, that the cargo of the ‘Enniskillen’ might have been discharged at the place where she was moored on Tuesday evening the 1st of July, and where she lay during the four following days, if the defenders had adopted the necessary means for taking delivery of it. Supposing, however, that the cargo could not have been discharged till the ‘Enniskillen’ was got alongside of the quay, and that this could not have been accomplished sooner than it was owing to the berths at the quay being otherwise occupied, still the lay days must, in the Lord Ordinary's opinion, be held to run and be counted against the defenders from the morning of Wednesday the 2d of July, or at any rate from the hour on that day when the vessel was reported and cleared at the custom-house, although at her moorings, some distance from the quay. In the words of Mr Bell (Commentaries, vol. ii. p. 575), the affreighter is liable for demurrage ‘where the delay shall have arisen from circumstances over which he has no control, provided they are not ‘such as to dissolve the contract. His engagement is absolute that the thing shall be done within the time.’ And among other illustrations of this rule, Mr Bell gives that of delay being occasioned by the crowded state of the docks, or the order of warehousing the goods, or a prohibition of intercourse on account of an infectious disease. In short, Mr Bell adds:—‘In such cases the rule is, that during the loading or unloading of the ship the merchant runs all the risk of interruptions from necessary or accidental causes; while the shipowners have the risk of all interruptions from the moment the loading or unloading is completed. Even the unlawful seizure of goods by revenue officers, occasioning delay, or detention by port regulations or custom-house restraints, is no defence against demurrage.’ The law is stated to the same effect in Abbot on Shipping (11th ed., p. 629), where it is remarked that the general rule appears to be, that if the merchant covenant to do a particular act which it becomes impracticable for him to do, he must answer for his default, unless the act be or become contrary to the laws of his country—as a trading with an enemy.’ And the decided cases cited, as well in Mr Bell's Commentaries as in Abbot, appear amply to support the law as so stated.

The Lord Ordinary may in particular refer to the cases of Randall v. Lynch, in 1809 ( 2 Campbell, 352, and 12 East, 179), and Brown v. Johnstone, in 1842 ( 10 Mees, and Wel., 331), where it was held that the press of business at the port of discharge having delayed or obstructed the unloading of a vessel, did not prevent the running of the lay days against the affreighter. Nor does the Lord Ordinary think that the present case is taken out of the general rule, as was maintained on the part of the defenders, on the ground that the quay of South Alloa must be held to be the usual place of discharge there, for this is not established by the proof, according to his reading of it; and even if it had, such a circumstance does not appear to him to be sufficient to render the general rule inapplicable. In the most favourable view for the defenders that can be taken of the proof, it merely appears that it is usual for a vessel to unload at the quay at South Alloa when there is a disengaged berth there, and when it can otherwise be got at. In the present instance, however, it has been distinctly shown, on the one hand, that the ‘Enniskillen’ could not have obtained a disengaged berth at the quay, and could not have been laid alongside of it sooner than Monday, the 7th of July; while, on the other hand, it has also been distinctly shown that she might quite well have been unloaded if the necessary means had been taken for the purpose at the place where she was moored on her arrival on the evening of Tuesday, the 1st of July, and where she lay from that time till her removal to the quay on the Monday following; and also that it has been as usual to discharge vessels, whether steamers or sailing ones, from such a place as from the quay. The cases of Parker v. Winlo ( 27 L. J. Q. B., p. 49), and Batisfell v. Lloyd ( 31 L. J. Ex., p. 413), cited in the argument for the defenders, appear to the Lord Ordinary to be distinguishable from the present, and those relied on by the pursuers, inasmuch as in the former it seems to have been held by the Court that by the terms of the charter-party the ship was bound to go to any point at the port of destination that might be pointed out by the affreighters, and in the latter, that she required to be brought to the particular wharf named in the charter-party. And it has also to be remarked, in reference to both cases, that the wharf where it was held the cargo was deliverable was not preoccupied or obstructed, as in the present case, by other vessels.

2. Assuming then that the voyage of the ‘Enniskillen’ must be held to have terminated when she anchored, as she did, on the evening of Tuesday, the 1st of July, at ‘South Alloa, or as near thereunto as she could safely get,’ the Lord Ordinary thinks the lay days must be held to have commenced on the following day—viz., Wednesday, the 2d of July. The proof shows that notice was immediately given on the part of the pursuers to the defenders that the ‘Enniskillen’ was ready to be unloaded, and that it was expected that they, the defenders, would take delivery early on the morning of Wednesday, the second day of July.

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Not only was such notice given to the defenders by the pursuers' clerk Mr Wade, and by the captain of the ‘Enniskillen,’ but they were telegraphed to from Leith to the same effect by the pursuers themselves. But the defenders delayed taking delivery of the cargo, or using the necessary means for that purpose, till the morning of Saturday, the 5th of July. They have, no doubt, put forward various excuses or reasons for this, although they seem to have at first maintained that the cargo could only be taken delivery of from the ‘Enniskillen’ where she lay by means of lighters; and that the pursuers, if they desired it, were bound to provide lighters at their own expense. But the defenders afterwards appear to have taken up the somewhat inconsistent ground, which they maintained in the course of the proof and at the debate, that although the deck load of the ‘Enniskillen’ might have been taken away by rafts, which they caused to be put alongside of her on Thursday the 3d of July, they could neither get that or any other part of the cargo delivered to them by the pursuers till Saturday the 5th of July. The Lord Ordinary does not think this view or defence is supported by the proof. On the contrary, it appeared to him that although two rafts were sent out to the ‘Enniskillen’ on Thursday or Friday, the third or 4th of July—it is not quite certain which of these days—no offer was then made, and no lumpers or other persons were then ready to receive or take delivery for the defenders of the cargo. The mere taking out of rafts to the vessel by two individuals, who immediately left to resume the work in which they were elsewhere engaged for the defenders, was a very idle and useless proceeding, which cannot, the Lord Ordinary thinks, afford the defenders any aid whatever in the present dispute. Neither does the Lord Ordinary think that the defenders have been successful in showing that the delay till Saturday the 5th of July in the unloading of the ‘Enniskillen,’ was caused by the fault of the pursuers or their shipmaster in not being able to commence the delivery sooner. It may be true that the five lumpers who acted on the part of the pursuers on board of the ‘Enniskillen’ in delivering the cargo did not commence that work till the Saturday, but the crew of the vessel were on board till the Friday afternoon, and would have been engaged till then from the morning of the preceding Wednesday in delivering the cargo if the defenders on their part had offered and used the necessary means, and employed the necessary hands to receive it.

3. The next matter in regard to which the parties were at variance was the number of lay days which ought to be allowed for the unloading of the cargo of the ‘Enniskillen,’ supposing that it ought to have commenced and gone regularly on at the place at which she was moored on her arrival at South Alloa on Tuesday evening the 1st of July. The pursuers have maintained that, according to the proof only four days ought to be allowed, viz., Wednesday, Thursday, Friday, and Saturday, the 2d, 3d, 4th, and 5th of July; while the defenders contended that, even supposing it were to be held that the vessel ought to have been discharged of her cargo at the place referred to, and that the pursuers were ready to deliver it there, five lay days at least ought to be allowed, commencing as from the morning of Thursday the 3d of July. It appears to the Lord Ordinary that, according to the proof, it may be not unreasonably held that the ‘Enniskillen’ might and ought to have been discharged, if all necessary despatch had been employed, in four days. It is expressly stipulated by the charter-party that the vessel was ‘to be loaded and discharged as fast as she can load and deliver,’ and it has been proved that she had been on other occasions unloaded in four days.

4. But at what precise time the four days must be held in the present instance to commence is a more difficult question; for, while it has been proved that the ‘Enniskillen’ was not formally reported and cleared at the custom-house till shortly before noon on Wednesday the 2d of July, it has also been proved that verbal permission had been obtained from the customs’ officers for the discharge of the vessel at the earliest hour of Wednesday, and that this was immediately made known to the defenders. The Lord Ordinary is disposed, looking at all the circumstances, to hold that the clearing at the custom-house must be taken as the time at which the discharge of the ‘Enniskillen's’ cargo ought to be held to have commenced, for he can see no reason why it can only be held to have commenced the day following, as was contended for by the defenders. The weight of the evidence, as applicable to steamers, if not sailing vessels, is against the defenders on this point, and the express terms of the charter-party are not to be overlooked. If, therefore, the discharge of the cargo of the ‘Enniskillen’ had commenced at 12 o'clock of Wednesday the 2d of July, previous to which hour she had been reported and a clearance obtained at the custom-house, and reckoning four days from that time, it ought to have been completed at or before 12 o'clock on Monday the 7th of July. But here again it was contended by the defenders, not without some ground in the proof, the Lord Ordinary thinks, that the crew of the ‘Enniskillen’ having been paid off on Friday afternoon, and the five lumpers engaged in their stead to deliver the cargo on Saturday having, along with the defenders' lumpers, who were engaged in taking delivery of the cargo, stopped work earlier than usual that day, they are consequently entitled to the whole, in place of the half, of Monday. Taking it so, there would remain four days—viz., Tuesday, Wednesday, Thursday, and Friday, the 8th, 9th, 10th, and 11th of July, in respect of which the pursuers have a claim for demurrage at the rate of £25 a-day, or in all £100, in place of £125 as concluded for by them.

5. The only other matter which requires a word or two of explanation is the pursuers' conclusion for £5, 1s. 11d. as the balance of freight due to them by the defenders. It is not disputed that the whole cargo on board the ‘Enniskillen’ as she lay at South Alloa was delivered; and it is proved that none was lost on the voyage to that place. The bill of lading, which it is not said was in any respect erroneously made up, must therefore be taken to instruct the amount of the cargo for the freight of which the defenders are liable, and on this assumption it is not, and could not be, disputed that the balance of £5, 1s. 11d., concluded for by the pursuers, is still rest-owing to them. The Lord Ordinary has only further to add on this point that, in the circumstances, the onus of proving that there was a short delivery lay upon the defenders, and that they have failed to relieve themselves from that onus.”

The defender reclaimed, and pleaded inter alia:—

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“(1) The place at which the ship lay in Alloa Roads not being the proper port of discharge for said ship, under and in terms of the charter-party and custom averred, the pursuers are not entitled to reckon the time the ship remained in said roads as lay days. (2) The defenders having used all due diligence in taking delivery of said cargo, and any delay that may have arisen in the discharge thereof having been attributable to those in charge of the ship, for whom the pursuers were responsible, they are not entitled to claim demurrage therefor. (3) In any view, and in respect of the custom second above averred, the pursuers are not entitled to reckon as a lay day the day on which the vessel was reported at the custom house.”

Authorities—Bell's Prin., 431, 432; Hillstrom v. Gibson and Clark, 2 Feb. 1870, 8 Macph. 463; Rogers v. Forrester, 2 Campbell, 488; Burmester v. Hodgson, 2 Campbell, 483; Abbott, p. 275; Brereton v. Chapman. 7 Bing. 559; Kell v. Anderson, 10 Mees. and Wel. 498; Tapscott v. Balfour, 8 L. R., C. P., 46; M'Lean and Hope v. Fleming, March 27, 1871, 9 Macph. 38 H. L.; Dishington v. Gifford, July 19, 1871, 9 Macph. 1045; Shankland v. Athya & Co., Nov. 28, 1865, 3 Macph. 810.

At advising—