Scottish Court of Session Decisions

Paterson & Company, merchants, Smyrna, in November 1883 chartered the s.s. “Winchester” from Blindell, Dale, & Company, who represented The Steamship “Winchester” Company, Limited. The charter-party was concluded in behalf of owners and charterers by J. & R. Young & Company, Glasgow, and contained the following provisions:—“That the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall (after discharge of present cargo, if any), with all convenient speed sail and proceed to Ikinjik and Gulf of Macri ( say in Gulf of Macri at Macri &/or Conjek), or so near thereunto as she can safely get, and there load from the said merchants, or their agents, a full and complete cargo of ore, say about 2800 tons,. .. and being so loaded, shall therewith proceed to Glasgow, and discharge cargo, … on being paid freight at and after the rate of (12/) twelve shillings stg. per ton of 20 cwts. delivered. (The Act of God, the Queen's enemies, restraints of princes and rulers, fire, and all and every other dangers and accidents of the seas, rivers, navigation, steam, boilers, and machinery, of whatever nature and kind soever, during the said voyage, always excepted.). .. Cargo to be supplied at the rate of not less than 140 tons per running day, Sundays excepted, are to be allowed the said merchants (if the ship is not sooner despatched) for loading, and to be discharged on berthing as customary as fast as steamer can deliver ^*. And ten days on demurrage, over and above the said lay-days, at eight pence per nett register ton per day.. .. The cargo is to be brought to and taken from alongside at merchants’ risk and expense.”

The “Winchester” at the date when the charter-party was signed, was lying at Port Said. On 21st August 1883 the following notice had appeared in the London Gazette:—“Vessels from Egypt, including those which come through the Suez Canal or from Cyprus, will, if they have had suspicious incidents on board during the voyage, be subjected to twenty-five days' quarantine in Turkish ports.”

_________________ Footnote _________________

* See this sentence explained infra in Sheriff-Substitute's note.

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The “Winchester” proceeded to Ikinjik, a Turkish port on the open coast, where there were no sanitary anthorities, and was allowed to load 1200 tons of cargo, but on arriving at Macri, the next port of loading, she was put into quarantine for twenty days by the Turkish authorities. The facts in connection with the loading at Ikinjik and the detention in quarantine are stated in the opinions of the Sheriff-Substitute and Lord Shand, infra.

The shipowners, in consequence of the vessel's detention in quarantine, made a claim against the charterers for £1152, 6s. 8d., being ten days' demurrage at £47, 16s. 3d., the stipulated rate, eight days over-demurrage at £71, 15s., quarantine dues, and other expenses incurred through the quarantine.

On the vessel's arrival in Glasgow, J. & J. White, as agents and attorneys for Paterson & Company, took delivery of the cargo, on payment of the stipulated freights, and they consigned in bank the above-mentioned sum of £1152, 6s. 8d. to await the decision on the owners' claim above stated.

This was a multiplepoinding in the Sheriff Court at Glasgow, the fund in medio being the sum consigned, and the claimants being the Steamship “Winchester” Company as owners, and J. & J. White, representing Paterson & Company, as charterers of the vessel. Messrs Blindell, Dale, & Company having entered into the charter-party on behalf of The Steamship “Winchester” Company, lodged a minute concurring in the claim made by the company.

A proof was taken. The facts disclosed are fully stated in the opinions printed below.

On 8th June 1885 the Sheriff-Substitute (Erskine Murray) pronounced this interlocutor:—“Finds (1) that Messrs Paterson & Company of Smyrna, now represented by the claimants J. & J. White, chartered from the claimants Blindell, Dale, & Company, representing the owners of the ‘Winchester’ Steamship Company, Limited, that vessel, then at Port Said, for a voyage to certain ports on the Turkish coast, to load there a cargo of ore for Glasgow, all in terms of the contract of charter-party as specified in the note annexed hereto: Finds (2) that after partially loading at one of the ports, and proceeding to a second port, she was sent by the Turkish authorities into quarantine, owing to no fault of either party, and thus detained twenty days: Finds (3) that the shipowners now plead that the vessel was delayed eighteen days more than the period stipulated for in the charter-party through causes for which the charterers are responsible, and therefore demand £1152, 6s. 8d. for demurrage, over demurrage, and other damages: Finds (4) that the charterers have consigned in bank, in the joint names of the nominal raisers, the above sum, which forms the fund in medio in the present multiple ponding: Finds on the whole case and in law, that for the reasons assigned in the annexed note, it must be held that the claimants Blindell, Dale, & Company are entitled to the sum of £944, 11s. in respect of their claim: Therefore finds the nominal raisers liable only in once and single payment of the fund in medio: Ranks and prefers the claimants Blindell, Dale, & Company to the fund in medio to the extent of £944, 11s., and the claimants J. & J. White to the balance of the said fund: Decerns against the nominal raisers in favour of the said claimants Blindell, Dale, & Company for said sum of £944, 11s. out of the fund in medio, and in favour of the claimants J. & J. White for the balance of said fund; and on the nominal raisers making payment of the contents of said decree as aforesaid, exoners and discharges them from all claims under the action: Finds the claimants J. & J. White liable to the claimants Blindell, Dale, & Company in two-thirds of their expenses as taxed, &c.

“ Note.—Under the charter-party between Blindell, Dale, & Company for the owners of the ‘Winchester,’ and Paterson & Company of Smyrna, now represented by Messrs J. & J. White, it is agreed that the s.s. ‘Winchester,’ now at Port Said, should ‘proceed to Ikinjik and Gulf of Macri (say in Gulf of Macri at Macri and/or Conjek), or as near thereunto as she can safely get, and there load from the said merchants or their agents a full and complete cargo of ore, say about 2800 tons.’ The charter-party is partly in print and partly in writing. A clause in writing, ‘Cargo to be supplied at the rate of not less than 140 tons per running day (Sundays excepted)’ is followed by the words in print ‘are to be allowed the said merchants (if the ship is not sooner despatched) for loading.’ As they stand these words are neither grammar nor sense. The print was clearly intended to be filled in with a specified number of days for loading. This has not been done, and a provision as to the rate of supplying cargo per running day is substituted. None of this printed clause can be read with the writing except the closing words ‘for loading’ and the rest must just be held as pro non scripto. If it can be read at all, it can only be taken as implying that it was the intention of parties to fix a time for loading, but that instead of doing it by a slump time, they preferred to do it by a rate. Nor is the reason far to seek. The vessel was to be loaded not at one port alone, but at two at least, and possibly three. In these circumstances a slump number of lay-days, beginning at a certain date and finishing at another, would be inapplicable, for there might be three distinct periods of loading separated by the intervals occupied in sailing from the one place to another. But although no slump number of lay-days is given the result is a simple matter of calculation. The time taken at each of the three places falls to be added together, and it has then to be seen whether it exceeds 20 days plus the Sundays. For 140 tons per day of 2800 tons is just 20 days. The shipowners contend that the 20 days should count from the commencement of loading at the first port and run even on without intermission. Of course the reason of their contention is to enable them to argue that a break of quarantine at the second port was in the middle of a fixed period, which would certainly make the case much more clear in their favour. But the Sheriff-Substitute cannot adopt this contention, and must hold that the time spent at each port must be taken separately. This view also prevents the time taking in sailing between the stipulated ports from being counted against the charterers, which however is a small thing, not amounting to one day altogether, and not affecting the result. The charter-party specifies ‘ten days on demurrage over and above the said lay-days at 8d. per nett register ton per day.’ This would be £47, 16s. 3d. per day.

The next thing to be remarked is that, as

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appears from the London Gazette, the Board of Trade had, on August 20th 1883, received information that vessels from Egypt would, if they had suspicious incidents on board during the voyage, be subjected to twenty-five days' quarantine in Turkish ports; and gave notice accordingly. Neither of the parties nor their joint-broker seem to have known anything of this matter. The ‘Winchester’ came from Egypt, but according to the evidence had had no suspicious incidents on board, and so did not rightly fall under the rule. Such being the bargain of parties, the ‘Winchester’ came to Ikinjik on 12th November 1883. At Ikinjik there are only a few houses, and the Turkish officials are of an inferior description. The charterers had an agent and labourers ready with ore, and the Turkish officials making no opposition, 1200 tons ore were shipped out of lighters. From thence the ‘Winchester’ steamed a distance of four hours to Macri, taking with her the agent and Turkish officials and the lighters in tow with the labourers. Macri is a larger place with higher Turkish officials. These ordained that the ‘Winchester’ before loading must go and lie in quarantine at a place called Marmoritza, farther along the coast. She had to go with the agent, pilot, and officials on board, and lie at Marmoritza twenty days before she was allowed to return and complete her loading at Macri and Conjek. She seems to have taken eighteen days altogether in loading, over and above the quarantine delay. In these circumstances the shipowners claim (1) demurrage as per charter-party for ten days at £47, 16s. 3d. per day, amounting to £478, 6s. 8d.; over demurrage for the next succeeding eight days at £71, 15s. per day; besides quarantine and other expenses—their claim being in all £1152, 6s. 8d. The charterers have lodged this sum in the joint names of the nominal raisers in bank, and it forms the fund in medio claimed by the respective parties.

There is really no disputed question of facts; the only question is, whether in law the loss occasioned by the quarantine is to fall on the charterers or the owners?

In the first place, it falls to be remarked that there is no fault attributable to either party. Neither knew of the quarantine rule; but had they known of it, it would not have been otherwise. For on the evidence it must be held that the rule did not properly apply to the ‘Winchester,’ and that the enforcement of it in her case was an unjust exercise of vis major on the part of the Turkish authorities, perhaps with an eye to backsheesh.

A thorough review of the authorities leads to the conclusion that where in a charter-party there is a fixed number of days for loading, there must be held to be an implied contract by the charterer that after the ship has actually reached the usual place of loading he will take the risk of vicissitudes that may occur to prevent his releasing her, including such delays as quarantine. See Thiis v. Byers, 1876, L.R., 1 QBD 244; Lord Blackburn in Hudson v. Ede, 1867, 2 L.R., Q.B. 566; Barker v. Hodgson, 1814, 3 Maule & Selwyn, 270; Bessey v. Evans, 1815, 4 Camp. 131; Gibbons, 1 Bingham, N.C. 283, or 1 Scott, 133; Abbot, 246. And where, though the number of days is not specified, the rate per day is given, and the number of days allowed is thus just a matter of calculation, as in the present case, the same rule falls to be applied. See Tapseott, 8 L.R., C.P., 46; Holman v. The Peruvian Nitrate Company, 8th February 1878, 5 R. 657. The words ‘running days,’ moreover, which are used in the present case, point to such an obligation, as they include days in which, through no fault of either party, it is impossible to work. On the other hand, if there is neither a fixed time nor a fixed rate by which the time can be fixed, the charterer is only bound to load or discharge in reasonable time; there being no absolute hard and fast time contract on his part, he is not responsible in the case of a vis major or stormy weather interfering. See Postlethwaite v. Freeland, 1880, 5 App. Cas. 599; Ford v. Cotesworth, 1868, L.R., Q.B., iv. 127, and 1870, L. R., Q.B., v. 544. In the case of Cunningham v. Dunn, 1878, L.R., C.P., iii. 443, it had been agreed by the charter-party that the ship after loading dead weight (known to mean military stores) at Malta for the owners was to proceed to Spain and load a cargo of fruit. The charterer knew, and the shipowner did not know, that by the law of Spain a vessel containing military stores would not be allowed to load in Spanish ports. She arrived in the Spanish port; the Spanish authorities prohibited the loading, and the vessel sailed away. The charterer sued the shipowner for damages. The Court assoilzied, holding that the case of Ford v. Cotesworth ruled. In Maude and Pollock, i. 324, this case is quoted as laying down that where the act to be done is such that both must concur in doing it (the reference being to loading), and an unexpected event prevents each doing his part, neither can maintain an action against the other. But this is too broadly laid down. In the case of Cunningham there was no absolute bargain excluding the consideration of reasonableness, and the Court went on the further reasons (1) that there was no warranty by the shipowners that the dead freight was such as to allow the vessel to be loaded in Spain; (2) that if the shipowners were bound not to disable themselves, they did not know that they would disable themselves; and (3) that the charterers had, knowing the Spanish rule, given the ship license to sail with military stores on board. The case of Cunningham cannot therefore be taken as an absolute authority that in all cases, whether there is a fixed time contract or not, the rule as quoted from Maude and Pollock must apply. In Nelson v. Dahl, 1879, 12 L.R., C.D. 581, and 1880–1, 6 App. Cas. 38, the vessel was bound to proceed to London S. C. Docks, or as near thereto as she might safely get; the cargo to be delivered as fast as the steamer could deliver. She was prevented from entering the docks owing to what was held to be a cause attributable to the charterer, or if not so, at anyrate a permanent obstacle, but lay as near as she could. The charterer not interfering, the ship discharged by lighter into the dock. The Courts held the charterer liable in demurrage. This case apparently falls more, though not entirely, under the rule laid down in Postlethwaite, the question of the permanency of the obstacle being, however, the main ground of judgment.

Altogether, applying these principles, it must be held in the present case, that if the delay took place after the ship had reached the usual place for oading at one or other of the specified ports, the

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charterers, as the charter-party is one with a fixed rate enabling a fixed time to be stated, must be held liable for loss occasioned by the delay. Now, the evidence shows that the ‘Winchester’ had reached her place of loading at Macri. The time spent in quarantine must therefore be included in the time taken in loading at Macri. The charterers must therefore be held liable for the eighteen days taken in all above the stipulated days.

As to the amount of damage, the demurrage of the first ten days is regulated by the contract. For the remaining eight days the Sheriff-Substitute prefers much to continue the contract rate than to take as a basis the rate got for a Government contract this year, a much more doubtful authority. The fifth item of the account—[a charge for extra stores consumed in quarantine]—seems to fall under the demurrage charge; the other items seem chargeable. There therefore falls to be deducted £207, 15s. 8d. from the shipowners' account, leaving a balance of £944, 11s. To the former sum the charterers, and to the latter sum the shipowners, fall to be preferred. In the circumstances the shipowners seem entitled to two-thirds expenses.”

J. & J. White appealed to the Court of Session, and argued—The question was, which of the parties had been impeded in fulfilling his part of the contract? Here it was the shipowner, because he did not place the ship at the disposal of the charterer at Macri until after the expiry of the quarantine days. The principle of vis major was applicable— Ford v. Cotesworth, 1868, L.R., 4 Q.B. 127, aff. 1870, L.R., 5 Q.B. 544; Cunningham v. Dunn, 1878, L.R. 3 C.P. 443. The owner was bound to bring his vessel into port so that the cargo might be loaded— Tapscott v. Balfour, 1872, L.R., 8 C.P. 46; Postlethwaite v. Freeland, 1880, 5 Ap. Ca. 579, 1 Bell's Com., 7th ed., 622. The cases cited on the other side were not applicable, because the ship had never come to port. Even if it were held that she had come to port, there was not in the charter-party any contract to keep the ship merely for a specified time, and therefore this was not a case where the charterer had undertaken an absolute obligation, and was liable in any event for non-fulfilment. Even if the charterer was liable for damage he could not be liable for the expenses incident to quarantine.

Argued for the respondents—The charterer was bound by the charter-party to load in twenty days, and in such a case all hazards fell on the charterer. It was sought to take the case out of this general rule, but there was no sufficient reason for doing so. The owner tendered his vessel at Macri, and but for the intervention of the Government he would have fulfilled his part of the contract. By the charter-party the owner was to bring the ship to Macri “or so near thereunto as she can safely get.” The argument in law might be taken on the assumption that neither party knew that the ship would have to undergo quarantine. It was maintained, however, that there was but one presentation and one acceptance, and that was at Ikinjik, and that the vessel was never thereafter out out of the charterer's hands until she was loaded up. That was the way in which the parties dealt with the matter, because the charterer's servants took passage for themselves and towage for their lighters from Ikinjik to Macri. But even if that view was not correct, it was submitted the owner had fulfilled his contract by bringing his vessel as near to Macri as she could get. If that were done, and yet a disability arose which prevented the cargo from being put on board, that raised the question of law, who was to be made responsible for that disability? The principle was, that as the charterer told the vessel where to go, and presumably knew about the port, then, when he undertook to load in twenty days, that was an unqualified obligation on his part. This was a purely local disability—a “port regulation;” cf. Lord Shand in Holman's case, infra. There was no disease or “suspicious incident” on board. If this was a vis major, then the charterer was responsible for it. The expenses incident to the quarantine should be paid by the charterer, because, according to the argument submitted, the vessel was then on the charterer's voyage— Hudson v. Ede, 1867, L.R., 2 Q.B. 566, Blackburn, J., 578; Thiis v. Byers, 1876, 1 QBD 244; Holman v. Peruvian Nitrate Company, February 8, 1878, 5 R. 657; Barker v. Hodgson, 1814, 3 Maule & Selwyn, 267; Barrett v. Dutton, 1815, 4 Campb. 333; Bessey v. Evans, 1815, 4 Campb. 131; Ogden v. Graham, 1861, 31 L.J., Q.B. 26; Nielsen v. Watt, 1884, 14 Q.B.D. 576; Maude & Pollock (4th ed.) 410.