Scottish Court of Session Decisions

Messrs Stephens, Mawson, & Goss, shipowners, Newport, chartered the s.s. “Cassia” to J. & A. Wyllie, by charter-party dated 7th June 1890. Upon 5th July 1890 Macleod & Company, merchants, St Vincent Street, Glasgow, who were the receivers of the cargo, undertook, in consideration of the owners not exercising their lien for demurrage, to hold themselves liable for any demurrage that might be due.

The charter-party was in these terms—That the “Cassia” should, “with all convenient speed, sail and proceed to Portugalete, or any other usual ore loading-place in the river Nervion, not above Luchana, as ordered by merchant's agents on arrival, or so near thereunto as she may safely get, and there load in the customary manner from the factors of the said merchant a full and complete cargo of iron ore,” with which she should proceed to Glasgow… . “Steamer to be loaded at the rate of not less than 400 tons, per working day as customary (Sundays and holidays excepted), after being berthed in turn, and ten days on demurrage over and above the said lay-days, at 16s. 8d. per hour, to be paid as the same shall become due.”

The “Cassia” accordingly sailed for and arrived at Portugalete, and was ready to receive cargo upon 17th June 1890. She was not, however, berthed until about 8 a.m. on 27th June, and the loading was not completed until about 6·15 p.m. on 28th June.

Stephens, Mawson, & Goss sued Macleod & Company for 56 hours' demurrage, amounting to £45, 16s. 8d., contending that the steamer ought to have begun loading upon 21st June.

Upon 28th January 1891 the Sheriff-Substitute allowed a proof on interrogatories and cross interrogatories, which established that the load for the “Cassia” was about 1500 tons; that the defenders' agent at Bilbao, on receipt of a telegram announcing the sailing of the ship, ordered Victor de Chavarri, Bilbao, to be prepared to load the vessel with the cargo desired; that at various points on the banks of the river Nervion, including Portugalete, there were different stations at which iron ore was deposited, and that to each station were allotted particular kinds of iron ore. The Bilbao River and Cantabrian Railway Company, Limited, published rules for all vessels loading at Portugalete, as follow—“1. The turn for loading vessels will be taken from the official list of arrivals, each vessel being entered on the company's turn list according to the number given as from the semaphore station at Galea Point. 4. No vessel will be considered as being ready to load or available to take turn unless she has been duly advised to load by the shipper of the mineral, and that all necessary official and customs papers have been lodged at the office of the company's stationmaster at Sestao, also that there exists a sufficient quantity of mineral in the deposit to load a full and complete cargo, or such a quantity as may be asked for by the captain. 5. When two or more vessels are presented, and in turn, to load mineral from the same deposits, the company will use its discretion as to allowing more than one of such vessels to load at the same time.”

The “Cassia” passed Galea Point by the first tide on 17th June and received the official number 4 upon the company's turn list. Upon the same day the captain of the “Cassia” wrote to the defenders—“The present is to advise you that the above steamer ‘Cassia’ under my orders is now ready to receive cargo, and that my time will commence according to charter-party.” When the “Cassia” arrived the master was ordered by the defenders' factor to have her berthed at the Penuco deposit as soon as her turn came. There were three steamers in turn before her at the same deposit. The master of the vessel deponed that the “Cassia's turn for loading arrived on the 21st June at noon. She was not loaded in turn. The “Ingoldsby” and the “Navarra,” which arrived on the 19th, and the “Petunia” which arrived on 20th June, were loaded before her, and after her turn arrived. They were loaded at other deposits than the Penuco. Upon 21st June the master of the “Cassia” wrote to the defenders—“Finding that the s.s. ‘Ingoldsby’ of Cardiff, who arrived at this port on the 19th inst., a later date than my steamer ‘Cassia,’ who arrived on the 17th inst., is now under tips at Portugalete, and has commenced loading, I hereby give you notice that the s.s. ‘Cassia’ time will commence from noon on the 21/6/90, as per charter-party, at Glasgow June 7th, and that I shall also

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protest and hold you responsible for all detention that may ensue.

It was proved for the defenders that they had ordered the “Cassia” to ship ore from the Penuco deposit, and that this ore could only be loaded at certain berths; that the “Cassia” was admitted in turn with other vessels to ore of these berths, and no undue delay took place at her loading.

The Sheriff-Substitute ( ) upon 5th May 1891 pronounced this judgment—“Finds that the pursuers' ship ‘Cassia’ arrived at Bilbao River to fulfil the contract contained in the charter-party, No. 8/1 of process, on the 17th of June 1890, and completed loading a cargo of iron ore at Portugalete, as ordered, upon Saturday, 28th June, at 8 p.m.: Finds that, according to the custom of the port, she was in turn for being berthed, and was berthed at 8 a.m. on June 27th, and that she was thus loaded within the lay-days provided by the charter-party, her carrying capacity being 1500 tons: Therefore assoilzies the defenders, and decerns.”

“ Note.—This case appears to be a clear one. In the reading of clauses in charter-parties as to loading and discharging, the custom of the port is an implied term, even if not expressed, and the question for consideration is, whether by the practice of the port of Bilbao, or the loading-places on the river Nervion, to which this vessel was chartered, and which, it is assumed, are included in that port, the turn of the ‘Cassia’ arrived on the 21st June, as alleged by the pursuers, or not until the 27th. It seems to me that the only ground on which the former contention can be supported involves the proposition that the defenders were bound to alter their loading orders and supply a different kind of ore, or ore from a different ‘deposit’ or mine from that which they had provided for the ‘Cassia’ before her arrival, and for which she had been booked. For the evidence sufficiently instructs that the regular practice of the port is for vessels to take their turn at the particular ‘deposit’ or loading-place to which they are ordered, and that if several vessels are waiting for cargo from the same loading-place, the last comer must just be served in its rotation. It is hardly suggested that the charterers should be deprived of their choice of a cargo, and have their arrangements with the mineral owners deranged, in order that the ship may be loaded at another ‘deposit’ which happens to be immediately available. But it is said that the defenders should have known and did know that the turn list for the deposit of ore to which the ‘Cassia’ was ordered was very full, and that her detention was probable. Detention in this way is not in any fair or reasonable sense attributable to the merchant. The delay is occasioned by the state of the port, and unless he has guarded against it by his bargain, falls upon the ship, which is only entitled to be berthed in turn at the place where alone the cargo arranged for her can be loaded. The defenders were bound to have a ready cargo, and it is not disputed that they had one at a certain place; but if at a port where there are various ores, and various loading-places or deposits for these ores, a shipowner means to get dispatch by being allowed to load that ore which happens to be lying at a vacant loading-place, irrespective of the merchant's previous arrangements, he must surely stipulate for it. I cannot accept the view that under this charter-party, and the practice of the river, the merchant was bound to supply such ore as would give the ship regular turn in the sense for which the pursuer contends. That view ignores the requirements of the consignee to whom the charterer may have sold his cargo, and there is no attempt to prove that all the ores shipped in Bilbao river are equally useful to all buyers in all parts of the world, or even at Glasgow, whither the ‘Cassia’ was to proceed.”

The pursuers appealed, and argued—The defenders were liable in demurrage from the 21st June, as that was the date at which the vessel was intimated as being ready to receive her cargo. The charter-party provided only that the ship should be berthed “in turn,” that is, in turn according to the number she got on passing Galea Point. She was however kept waiting till 27th June, because she could not get to the particular deposit from which she was ordered to load; the defenders were therefore liable. The alleged custom of the port could not be read into the charter-party if there was no precise statement concerning it, and the words “customary manner” could not be taken as incorporating the custom of the port— Dall'Orso v. Mason & Company, February 4, 1876, 3 R. 419. All days lost after the date at which the ship might have loaded could be claimed as demurrage days— Holman v. Peruvian Nitrate Company, February 8, 1878, 5 R. 657.

The respondents argued—The charterers were not liable. The ship passed Galea Point on 17th June, and received a number in accordance with the rule. She was however directed to take a particular kind of ore for cargo, which could only be obtained at a particular deposit. It so happened that three other ships were loading at that deposit, but when their cargoes were completed the “Cassia” came next. That was loading in turn in the customary manner as provided for in the charter-party. The rules of the port, under the fifth of which the “Cassia” had berthed, were imported into the charter-party as being the custom of the port, and if the vessel was berthed “in turn” according to the custom of the port, demurrage was not due. There was no objection taken that she was kept longer than was proper to enable her to load at the particular deposit to which she was sent— Postlethwaite v. J. & A. Freeland, June 7, 1880, L.R., 5 App. Cas. 599; King and Another v. Hinde, April 27, 1883, L.R., Ireland, 12 Q.B.C.P. and Ex. Div. 113.

At advising—