Scottish Court of Session Decisions

This was an action for demurrage by the owner of the vessel “Presidents Washington” against the charterers thereof. The terms of the charter-party were that the vessel called the “Presidente Washington” should, with all convenient speed sail and proceed to a loading berth in Leith Docks, as ordered, and there load in ten working days, as customary, a full and complete cargo of steam coals. The vessel proceeded to Leith and discharged her cargo. She finished discharging on 14th April. On 15th all was made ready for receiving cargo, and on the 16th notice was given to the charterers that she was ready and lying in the dock. On the 13th April the defenders had entered the vessel's name in the harbour books for a turn for loading at a crane berth, but as a number of ships had been previously entered for their turn, she did not get under the crane until 3d May, and the loading was finished on 12th May. The question was, when the lay days began to run.

The Lord Ordinary pronounced the following interlocutor:—

Edinburgh, 12 th July 1875.—The Lord Ordinary having heard parties' procurators on the closed record, proof, and productions, and having considered the debate and whole process—In the first place, finds as matter of law that, according to the sound construction of the charter-party sued on, No. 6 of process, by which it was contracted that the vessel called the ‘Presidente Washington ’ should, ‘with all convenient speed, sail and proceed to a loading berth in Leith Docks, as ordered, and there load, in ten working days, as customary, a full and complete cargo of steam coals, ’ the lay-day did not begin to run till the ship had reached the loading berth chosen, and to which she was ordered by the defenders, the charterers: In the second place, finds, as matters of fact—(1) That the said vessel was ready to take in the stipulated cargo on 16th April last, and of this intimation was given by the master to the defenders; (2) That there are crane berths, and also other berths at which vessels are loaded by hand, at Leith Docks; but though coal is frequently loaded, and gas-coal is almost always loaded, at these other berths, by much the greater part of the coals shipped at Leith are loaded at crane berths; (3) That though the “Presidente Washington” was, as aforesaid, ready to take in cargo on 16th April, and though on 13th April, in anticipation of this, the defenders entered the vessel's name in the harbour books, that she might obtain from the harbour authorities a turn for loading under the crane, she, in consequence of the number of vessels which had previously been entered for their turn, did not get under the crane till 3d May; and (4) That upon that day a part of her cargo was taken in, and, notwithstanding interruptions in the course of loading, her loading was completed on 12th May, which was within ten days from the day on which she entered her loading berth: Therefore sustains the defences, assoilzies the defenders from the conclusions of the summons, and decerns: Finds the defenders entitled to expenses, of which allows an account to be given in, and remits that account when lodged to the Auditor for his taxation and report.

Note.—The meaning of that clause of the charter-party quoted in the foregoing interlocutor is really the only thing which is in controversy. If the pursuer's reading is to be taken, the defenders do not dispute that the demurrage claimed is due; and, on the other hand, should that of the defenders be adopted, the pursuers admit that the claim must be disallowed.

The pursuers' reading is this—They say that

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once notice was given that the ship was ready for cargo, the defenders were bound to find the berth at which she was to be loaded; and if from any cause—even a cause resulting from harbour arrangements, over which the defenders had no control—the berth ‘as ordered ’ could not be obtained at the time, they must be answerable for the consequences. The defenders, on the other hand, say that they had the selection of the berth, and that, till the ship entered that for which she was ordered the time for loading had not arrived.

The Lord Ordinary's first impressions of the case were in favour of the pursuer's view of the contract, but he has seen cause not to adopt the opinion which originally he was disposed to entertain. What was done and said in Tapscott v. Balfour, decided 23d November 1872, and reported in Law Reports, 8 Common Pleas, p. 46, are the things to which this result is mainly to be ascribed. There the charterers had a choice of docks, as here the defenders have of loading berths; one was chosen in due time, but into that chosen the chartered vessel could not enter till after an interval, because the coal agents employed by the defenders to supply the cargo ‘had three vessels already in the dock, and two others in turn to go in. ’ In an action for demurrage on the charter-party, the Court held that the lay-days did not commence at the time when the ship was ready to enter the dock, but at the time when she got into the dock. If the words ‘loading berth ’ be substituted for the word ‘dock,’ that case and the present, so far as the language of the charter-party is concerned, will be identical; and the actual variance, the Lord Ordinary thinks, is not a difference necessitating or warranting a different decision as to the meaning of the clause which is now the subject of controversy. Were it otherwise, there would, so far as the Lord Ordinary can see, be a denial of the stipulated option, because, though a particular berth might be that desired, and be in consequence the one at which the vessel was ordered to load, that possiby or probably could not be selected unless under the penalty of incurring demurrage, not being open on the day on which it was expected she would be ready for cargo. Hardship has, as usual, been suggested on both sides, but the true view is that there is hardship on neither. The matter is simply one of contract; and, if the consequences of what has happened are in future not to fall on the ship, this must be prevented by a change in the provisions of the charter-party.

“The pursuer has here led evidence of an alleged usage at the port of Leith, but the Lord Ordinary thinks in the first place, that the proof upon this point is not very strong, and, in the second place, that, even if it were much stronger, it could not control the words of the contract. These words are not ambiguous, and their plain, ordinary meaning, whatever others may think, is that to which effect must be given by the Court.”

The pursuers reclaimed, and argued—The true import of Tapscott v. Balfour, and also of Brown v. Johnston, which Tapscott case followed, was against the view taken by the Lord Ordinary. It was clearly settled that once in the dock the lay-days began to run. The words “as ordered” gave the selection of loading berth as to place, but not as to time. The respondents, according to their argument, might keep the ship waiting a year.

Argued for defenders—The contract provided when the lay-days were to begin, i.e., when the vessel had proceeded to a berth, as ordered. She was ordered to a crane berth, and therefore till she got there the lay-days could not begin. The berth here corresponded to the dock in Tapscott's case.

Pursuers' authorities—Abbott on Shipping, p. 268 et mg.; Brown v. Johnston 10 Meeson and Wellsby, 33; Tapscott v. Balfour, L.K. 8 C. P. 46.

Defender's authorities— Tapscott, ut sup.; Brereton v. Chapman, 2 Bingham 559.

At advising—