Scottish Court of Session Decisions

The pursuers in this action were shipowners at Troon, and the defenders were merchants in Glasgow engaged in the Spanish ore trade. The action was for £59, 5s. as demurrage (at 15s. an hour) for 79 hours, during which they alleged that their ship “Mandarin” had been delayed at Glasgow beyond the customary time for discharging. The material facts of the case, as ascertained at the proof, are given in the interlocutor of the Sheriff-Substitute (Erskine Murray), as follows—“Finds (1) that the defenders Harrison & Company are consignees of 800 tons of iron ore conveyed from Bilbao to Glasgow in the ss. ‘Mandarin,’ under a charter-party between pursuers J. & A. Wyllie, shipowners, and Harrison & Company: Finds (2) that under the charter-party the charterers were bound to proceed ‘to Glasgow General Terminus or Queen's Dock, in charterers' option,’ and ‘deliver as customary,’ freight being charged at a certain rate per ton, ‘delivered free into trucks,’ ‘cargo to be discharged as fast as steamer can deliver after being berthed as customary’—‘demurrage, if any, at the rate of 15s. per hour, except in the case of any hands striking work, frosts, or floods, break down of machinery, revolution, or war, which may hinder the loading or unloading of said ship:’ Finds (3) that in the end of October last it was customary to discharge vessels laden with iron ore into trucks at the General Terminus by working continuously day and night, deducting about four hours for meals, thus giving 20 hours' work per day, no work, however, being done on Sundays, and as the only trucks permissible at the General Terminus were those belonging to the Caledonian and North British Railway Companies, it was also customary, after the shipowner had notified to the consignees or charterers the arrival or forthcoming arrival of a vessel, for the said consignees or charterers to notify to one or other of the railway companies that trucks were required for the carriage of the specified quantity of ore, and then for the railway companies to provide according to their ability the necessary trucks, and, on the other hand, for the shipowners or their stevedore to arrange with the river authorities for the use of the cranes for the purpose of unloading: Finds (4) that in the latter part of October there was rather a want of trucks felt at Terminus quay, which appears to have arisen partly from trucks being filled by the day and night system more rapidly at the quays than they could be unloaded at the works they went to, where they were only unloaded by day, and partly because, even though there might be sufficient trucks in the station, works of alteration were going on in it which sometimes only rendered one line available, thus choking the traffic, and delaying loaded trucks from getting away from the quay, or empty trucks getting alongside: Finds (5) that the ‘Mandarin’ arriving in Glasgow on 27th October, notice was sent to the consignees, who elected that the delivery should take place at the terminus, and although the pursuers seem to have pointed out that there might be delay at the Terminus, yet when it was mentioned that the iron was for Dixon & Company, and that therefore the Terminus was more convenient, they made no objection, as indeed they were not entitled to object: Finds (6) that as a good many vessels had preceded the ‘Mandarin,’ she did not get berthed till Thursday the 30th, about 11·30: Finds (7) that the defenders gave due notice to the Caledonian Railway Company to have trucks provided, and a similar notice was also given to them by Dixon & Company, who were to receive about 480 tons of the 800, and who had also received notice from defenders: Finds (8) that except for a short period the pursuers were unable to get the use of more than one crane, which to a certain extent delayed the delivery: Finds (9) that during the Friday night the discharge of the ‘Mandarin’ was altogether stopped by joint arrangement between pursuers' stevedore and the railway authorities, in the hope that by using two cranes at a neighbouring vessel which had the precedence they would be able to get two cranes for the ‘Mandarin’ next day, which hope, however, proved fallacious: Finds (10) that on Monday morning two hours were lost in canting the vessel, which had to be done in order to permit of her discharging further: Finds (11) that the discharging lasted off and on from the berthing of the vessel till 5 p. m. on the Monday, no work being done on the Sunday: Finds (12) that apart from the delays above mentioned great delays took place in discharging caused by the want of trucks being forthcoming, which accounted for the extent of delay above the nominal time for unloading when added to the other delays: Finds (13) that while the nominal time for unloading a vessel of 800 tons like the ‘Mandarin,’ working night and day with two cranes, would have been twenty hours, or one complete working day, provided trucks had been always ready, she ought with only one crane to have been unloaded in about thirty to thirty-five hours, or say one complete working day and ten to fifteen hours of another day, which, allowing for the night during which by arrangement with pursuers' stevedore no unloading took place, would still have completed the unloading sometime on the Saturday evening, say 9 p.m., had it not been for the delay in forwarding trucks: Finds (14) that in the period from 9 p.m. on Saturday till 5 p.m. on Monday, being forty-four hours, two hours delay on Monday were attributable as above mentioned to pursuers, leaving a period of forty-two hours, including the twenty-four hours of the Sunday.”

In respect of these findings of fact the Sheriff-Substitute found on the whole case and in law—(1) That if defenders were responsible at all for demurrage in the circumstances, the time on which it would fall to be calculated would be forty-two hours as above mentioned, bringing out a sum of £31, 10s.; (2) but that in the circumstances they cannot be held liable in demurrage: Therefore assoilzies defenders from the craving of the petition, and decerns, &c.

“ Note.—There is really little discrepancy between the parties as to the facts in this case, and

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the question is simply one of law. But the point of law is a difficult one.

In the first place, this case is not among those which fall to be decided against the charterer or bill of lading holder in consequence of his having engaged to load or to discharge in a fixed time, or at a fixed rate per day, by which a time can be fixed. The charterer is therefore only bound to discharge in a reasonable time. But then it has been held, as in the case of Wright, L. R., 4 Ex. Div. 165, that in a case where there was no provision whatever about discharging, and delay arose by the charterers being unable to get lighters in consequence of stormy weather, the charterers were responsible. As Lord Bramwell lays down, the charterers were bound to have the lighters ready; it was not, properly speaking, the discharging, but the preparation for discharging; they ought to have had all preparations made beforehand, so as to be ready to start at once, and could not excuse the omission by saying that others required and had got the lighters. The same principle is referred to in the recent case of Grant v. Coverdale, 1884, L. J. Rep., 53 Q.B.D. (N.S.) 462, where the circumstances were different, this being a case where the time on demurrage was specified, which always tells against the charterer. It was held that frost which delayed cargo on its way to be loaded did not fall under the description of frost preventing loading, which would have been a very different thing. On this the case turned. But Lord Selborne certainly lays down that each side is responsible for what he undertakes to do, and for all practical impediments that arise in the course of his doing it. Under this rule, as the defenders in the present case certainly had to arrange for the trucks being ready for the pursuers to discharge the ore into, the defenders would have been held responsible had no other considerations entered into account. But then it must be remembered that the delivery is in the present case provided to be ‘as customary,’ and cargo is ‘to be discharged as fast as steamer can deliver after being berthed as customary.’ The custom of the port is thus woven into the contract. The pursuers themselves need to appeal to it, and what is more, need to appeal to it with regard to the last clause above quoted, for unless they did so they could not maintain that the delivery should go on day and night. All they could have insisted on was working days. Such being the facts, the present comes within the category of cases of which Postlethwaite v. Freeland, L.R., 4 Ex. Div. 155, and on appeal in the House of Lords, 5 Ap. Cas. 599, is a type. There it was decided that when the charter-party provided that the charterer was to ‘discharge with all despatch according to the custom of the port,’—words very similar to those in the present case—a delay of thirty-one days before commencing to unload for want of lighters, which in consequence of the custom of the port could not be got till then, was not held to infer liability for demurrage. The same was held in Ford v. Cotesworth, L.R., 4 Q.B. 127, and v. 544, where it was provided that the vessel was to deliver the cargo ‘in the usual and customary manner,’ and where delays arising under the custom were held to be matters over which neither party had control, and neither were responsible.

Here there can be no doubt that at the end of October last it was the known custom that the trucks to be used for discharge were only those of two railway companies; and that all that the charterers could do was to give notice what trucks were wanted, and then, if necessary, hurry and stir up the railway companies to provide them. This they did. They seem, therefore, in the circumstances, not to be responsible for the delay that occurred through the custom of the port, which rendered them dependent on the provision of trucks by the railway companies, which custom was fully known to the pursuers.”

The pursuers appealed to the Court of Session, and argued—The obligation in the charter-party to discharge “as fast as steamer can deliver” meant that it was to be done as fast as it could be done by means of the appliances which the contract provided, and had no reference to the trucks, the forwarding of which was in the charterer's department. The duty of the ship stopped when it tendered the cargo. It was the charterer's business to provide trucks. If he did not, then he (pursuer) was prevented fulfilling his contract by something beyond his control. The case of Postlethwaite v. Freeland, on which the Sheriff-Substitute relied, was distinguishable from this one both in the words of the charter-party and in the introduction of the element of lighters. The case of Lapscott v. Balfour, L.R., 8 C.P. 46, where the charterers were held liable for delay under a similar clause in the charter-party, applied.

The defenders replied—The case was ruled by Postlethwaite, for, substituting lighters for trucks, the circumstances were precisely parallel.

Additional authority—M'Lachlan on Shipping, p. 526.