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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hough and Others v. Athya & Son [1879] ScotLR 16_553 (27 May 1879)
URL: http://www.bailii.org/scot/cases/ScotCS/1879/16SLR0553.html
Cite as: [1879] SLR 16_553, [1879] ScotLR 16_553
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SCOTTISH_SLR_Court_of_Session
Page: 553↓
Court of Session Inner House First Division.
[
v.
Facts:
Where a ship spent four and a-half days at the port of call over and above the period allowed for orders, and five and a-half at the port of discharge— held that in calculating lay-days a fraction of a day was to be counted as an entire day, and consequently that eleven lay-days were to be credited to the shipowner.
The pursuers in this case, the owners of the steamship “Polam,” sued the defenders, who were endorsees of the bills of lading and consignees of the cargo, for two days' demurrage at the rate of £40 per diem. By the charter-party it was agreed that the “Polam” should proceed to Odessa, and after loading there return to a safe port in the United Kingdom, calling at Queenstown or Falmouth for orders, which were to be given within twelve hours after arrival, or lay-days to count. It was further stipulated that “thirteen running days are to be allowed to the said merchants (if not sooner despatched) for loading and unloading, and ten days on demurrage over and above the said laying-days at £40 per day.” The “Polam” arrived at Falmouth on the 16th November 1876, between 10 and 11 a.m., and consequently the twelve hours allowed by the charter-party expired between the same hours that night; but she did not leave Falmouth till about 7 p.m. on the 21st, having received orders to do so about 1 o'clock. She reached Glasgow on the evening of the 24th, but the unloading was not completed till the afternoon of the 30th. On these facts the pursuers claimed two days' demurrage, contending that eleven days had been occupied in place of the nine which under the charter-party still remained to the merchant after deducting four which had been made use of in loading at Odessa. The defenders resisted this claim.
The point of controversy related to the manner of computing lay-days. The pursuers maintained that in calculating lay-days, both at common law and under this charter-party, a fraction of a day was to be credited to the shipowner as an entire lay-day, even although the remainder was devoted to purposes of navigation. The defenders, on the other hand, contended that at common law, or at all events under this charter-party, a lay-day meant a day of twenty-four hours, which, they contended further, need not run on continuously, but might be spent partly at one port and partly at another. In accordance with the one view, five days were spent at Falmouth and six at Glasgow—making in all eleven; in accordance with the other, four and a-half were spent at Falmouth and five and a-half at Glasgow—or in all ten. The defenders also resisted payment of the second day's demurrage on a different ground, viz., that the delay in discharging the cargo was caused by the fault of the ship.
After a proof the Lord Ordinary (
Rutherfurd Clark ) issued an interlocutor decerning against the defenders in terms of the conclusions of the libel. He added this note—Note—The first question in this case is, whether the running days are to be counted by hours or by days, so that a part of a day counted for a whole day. There is little authority upon it, but following the decisions in the Commercial Steamship Co., 10 L.R., Q.B. 346, the Lord Ordinary thinks that the computation must be by days.
The result is, that when the ship arrived at Glasgow on 24th November the running days had been exhausted except four. Four had been occupied at the port of loading, and five had been allowed to pass at Falmouth, where in terms of the charter-party the ship called for orders.
The ship was berthed and ready to discharge on 25th November, and the discharge was not completed till 30th November. Hence, apart from any specialty, the ship is entitled to two days' demurrage. But it is said by the defenders that the discharge was unduly delayed by the fault of the ship. On this point there is a great conflict of evidence. But the Lord Ordinary thinks that the defenders, on whom the onus lies, have not proved their allegation. It is a very material circumstance in favour of the pursuers that they complained in writing that delivery was not being taken with due dispatch, a complaint of which the defenders seem to have taken no notice.
Page: 554↓
A question of some importance was noticed in the discussion, viz., whether the pursuers were bound to give delivery otherwise than by the crew, or by a number of men equal to the crew. But in the view which the Lord Ordinary has taken of the case it is not necessary to enter on that question.”
The defenders reclaimed, and argued—The Commercial Steamship Company, infra, was a case of demurrage, and there was a clear distinction between lay-days and demurrage. In the latter case a fixed sum was settled as the value of the day, and therefore it was intended that in that case a fraction of a day should count for the whole day. Lay-days, on the other hand, were given to the merchant for his own purposes, to be arranged as he thought fit. Lay-days consequently were periods of twenty-four hours, provided only that if there was a fraction over at the end that should be treated as a whole day. That was the general rule of law—but even if it was not, the stipulation regarding the twelve hours given for orders at the port of call made it quite plain that hours were the basis of calculation here.
Authorities — Commercial Steamship Company, June 17, 1875, L.R. 10 Q.B. 346; La Cour v. Donaldson, May 22, 1874, 1 R 912; Hansen v. Donaldson, June 20, 1874, 1 R. 1066; Dickinson v. Martini, July 11, 1874, 1 R. 1185; French v. Gerber, February 6, 1877, 2 Com. Pleas Div. 247.
Argued for the respondents—The stipulation regarding the twelve hours really did not alter the rule of law, and that was settled by the Commercial Steamship Company's case, for between lay-days and demurrage no sound distinction could be drawn. The rule was by far the more convenient.
At advising—
The provisions of the charter-party here do not seem to raise any specialty. The only point applicable to the general question is, that it was stipulated that the vessel having arrived from the foreign port at Falmouth or Queenstown was to have orders given there within twelve hours, and that lay-days were to count after the expiry of these twelve hours. But this does not appear to affect the question at all. The general provision of the charter-party is—“Thirteen running days are to be allowed to the said merchants (if not sooner despatched) for loading and for unloading, and ten days on demurrage, over and above the said laying days at £40 per day.” Now, it is under this clause that the lay-days must be computed, and it appears to me that they begin to run twelve hours after arrival, exactly in the same way as if it had been from the hour of arrival, so that the interposition of the twelve hours does not raise a different question from what would have been raised if we had had to count from the arrival of the vessel.
Now, the one side contend that the lay-days were not completely exhausted when the discharge of the vessel was finished at Glasgow; the other side say that not only had the entire lay-days been exhausted, but that two days' demurrage had been incurred. The facts are these. Of the thirteen lay-days allowed by the charter-party, four were exhausted at the port of loading, and therefore according to the certificate in the log-book nine days were still available to the merchant. The vessel arrived at Falmouth on November 16, somewhere between 10 and 11 in the morning—the exact hour is not of much consequence—while the twelve hours within which orders were to be given, and after the expiry of which the lay-days were to begin to run, would bring the time down to 10 or 11 in the evening of the same day. Nothing can be counted to the lay-days as occurring on that 16th November, and therefore the first lay-day must be Friday the 17th. The vessel sailed on Tuesday the 21st at seven in the evening, and thus five lay-days were spent at Falmouth, unless we are to count lay-days as periods of twenty-four hours each. According to the one mode of counting, the shipowner counts the 17th, 18th, 19th, 20th, and 21st; according to the other, there are only four and a-half days—that is to say, periods of twenty-four hours. The vessel arrived in Glasgow on the evening of the 24th, and the unloading was not finished until about the afternoon of the 30th. In that way six days were spent at Glasgow, not including the first evening — so that the six at Glasgow and the five at Falmouth make up eleven days, being two in excess of the nine allowed to the merchant. But here again, if the calculation is by hours and not by days, a different result is reached.
Now, it appears to me to be an important circumstance that this method of computing lay-days by hours is a novelty. There have been many cases in which the Court has had to consider the number of lay-days, but it has never, so far as I am aware, been suggested previously to this case that the calculation is to be by hours. Now this is important, because in administering law of this description custom is of more weight than in almost any other branch of the law. Further, in this matter I can see no difference between lay-days and demurrage, and in regard to demurrage there is an express authority in the case of the Commercial Steamship Company, in which the Court of Queen's Bench ruled that fractions of a day were to count as entire days for the purpose of calculating the amount of demurrage. I do not see why that rule should not apply to lay-days also if it is sound in law. My own impression is that it is a sound rule, and I have less hesitation in coming to that conclusion because it would be extremely unfortunate were we obliged—as we might have been—to lay down a different rule for this country from that which prevails in England. But the principle is a sound one, as the Judges in that case observed.
As to the conflict of evidence, I agree with the Lord Ordinary that the onus lies on the defenders, and there being this conflict he gives a perfectly good ground of decision in holding that they have not discharged this onus.
Page: 555↓
The Court adhered.
Counsel for Respondents (Pursuers)— Trayner— Shaw. Agent— H. W. Cornillon, S.S.C.
Counsel for Reclaimers (Defenders)— Mackintosh— Dickson. Agent— J. Gillon Fergusson, W.S.