Scottish Court of Session Decisions

David Ireland & Son, coal exporters and steamship brokers, Dundee, chartered the steamship “Linn o' Dee,” belonging to the Granite City Steamship Company, Limited, Aberdeen, to carry coals from a port on the Tyne to Leith Docks.

The charter-party provided that after loading her cargo the vessel should proceed “to Leith Docks and deliver the same agreeably to bills of lading to the said affreighters or their assignees, alongside any safe wharves, crafts, or depots, as ordered by receivers, on being paid freight at the rate of three shillings and ninepence per ton of 20 cwt, … The freight to be paid on unloading and right delivery of the whole cargo, in cash, at current rate of exchange.

running hours to be allowed the said freighters for loading, as per colliery guarantee, and forty-eight running hours for discharging the said cargo, except in case of holidays, Sundays, colliery pay-days, idle days, riots, strikes, lock-outs, idle time, or restriction of out-put at the colliery or collieries with which the steamer is booked to load, frosts, storms, floods, detention by railway or cranes, accidents to machinery, or any other cause beyond the control of the charterers which may impede the ordinary loading and discharging of the vessel.

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… Demurrage at the rate of ten shillings and pence per hour, to be paid by the freighters for any time expended over and above the said hours allowed for loading and delivery… . Time for discharging to commence when steamer is ready to deliver, reported at Custom House, and according to usual custom at port of discharge.”

The charter-party was for two voyages, and the vessel performed both voyages, and carried two cargoes of coal to Leith for the charterers. Thereafter the shipowners raised an action against them for demurrage upon alleged delay at Leith owing to the failure of the defenders to take delivery of the cargo within the time allowed by the charter-party. The pursuers alleged that upon the occasion of the first voyage their vessel arrived and was berthed in the Old Dock, Leith, and that she was ready to deliver her cargo by 4 p.m. of 27th January 1891, but discharge was not completed until 31st January, being forty-eight hours longer than was stipulated. On the occasion of the second voyage she was berthed in the Edinburgh Dock, and ready to deliver cargo at ten a.m. of 5th February 1891, but the defenders did not take delivery until two o'clock of 10th February, seventy-six hours beyond the time mentioned in the charter-party.

The defenders averred—“On the occasion of both voyages delay took place in discharging the cargo owing to a strike of the servants of the railway companies, which rendered it impossible for these companies and for the defenders to get waggons forward to receive the cargo. The delays thus occurred from causes beyond the control of the defenders. It was impossible to take delivery of the cargo by carts or otherwise than by railway waggons.”

“The pursuers pleaded—“(1) The pursuers' vessel having been in demurrage for the time specified through the fault of the defenders, they are liable in payment to the pursuers of the stipulated sum payable in respect thereof.”

The defenders pleaded—“(2) The delays upon which demurrage arose having occurred through causes beyond the control of the defenders, and falling under the exceptions specified in the charter-party, the action should be dismissed.”

A proof was allowed, which established that the vessel arrived at the Albert Basin, Leith at 4.10 on 27th January 1891; that at 10 o'clock the captain went ashore and landed the ship's papers, and the transire bearing the quantity of cargo shipped in Shields Tyne Dock to the agents of the charterers; it was not necessary to report the vessel, as that was only done in the case of foreign trading vessels, while the “Linn o' Dee” was a coaster; the agent did not lodge these papers with the authorities until the next day; the coal was to be taken by the affreighters to the Edinburgh Gas Company, to whom they had contracted to deliver 2000 tons of coal; the North British Railway Company only had a railway from Leith Docks to the Gas Commissioners' sidings; a strike was in progress among the North British Railway Company's servants which rendered it difficult for the company to supply waggons; the continuance of this strike was well-known to the parties in the case; when waggons were forwarded it was at irregular intervals, and not in large number, so that unloading was frequently stopped from the want of waggons; the agent for the defenders when he found on the arrival of the vessel that waggons could not be got from the railway company, asked one carting contractor to cart the coals from the ship to the gasworks, but owing to the great pressure put upon all means of portage by the railway strike the contractor was unable to do so; a comparatively small amount of coal came into Leith, and most of that was carried away in carts. One carting contractor, who had, at the time the “Linn o’ Dee” was lying in the dock, carted a cargo of 800 tons of coal from another ship, deponed—“I could not have carted 500 tons from the ‘Linn o’ Dee’ to the gasworks at Edinburgh, but we could have carted them to the spare ground round the north side of the Albert Dock or Edinburgh Dock, which is kept by the Dock Commissioners. I do not think the Dock Commissioners would have charged for the storage in the circumstances; they allow vessels to do so in special circumstances. When vessels have sprung a leak they allow them to put coals down there. … I would not undertake carting but for special customers. The defenders are not special customers, but if they had given me exceptional terms I might have done the carting for them; I mean if they had given me a premium. By the Court—(Q) What premium would you have expected? (A) If they had given from 1s. 3d. to 1s. 6d. a ton we would have managed it—that is, to have laid the coals down on the spare ground, and then they would have been carted away at their convenience.”

Upon 10th June 1891 the Sheriff-Substitute ( Campbell Smith) pronounced this interlocutor:—[ After stating the facts as above]—“Finds that on the first voyage in question the ship was reported at the Custom House by 11 a.m. of the 28th January 1891, and that the discharge was finished by 4.30 p.m. of the 31st January, having occupied twenty-nine and a-half hours more than the stipulated forty-eight hour after report at the Custom House, and that on the second voyage the point of time for discharge commencing was 11 a.m. of 5th February, and that it ended at 2 p.m. on 10th February (the second previous day being Sunday), and the excess over the stipulated time, deducting Sunday, being fifty-one hours: Finds that on the two voyages more than twice forty-eight hours was occupied, to the extent of eighty hours, but finds that the charge for demurrage was not incurred in respect that the cause of delay was the failure of the North British Railway to supply waggons to receive the coals carried by the ship owing to a ‘strike’ of their servants,

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and that said ‘strike’ or ‘detention by railway,’ which impeded the discharging of the vessel, fell within the aforesaid exception, expressly, or as a cause not within the defenders' control: Therefore assoilzies the defenders from the conclusions of the prayer of the petition,” &c.

The pursuers appealed, and upon 18th August 1891 the Sheriff ( ) pronounced the following judgment:—“Finds that the delays upon which demurrage arose occurred through a cause beyond the control of the defenders, which impeded the ordinary discharging of the vessel: Finds that by the terms of the charter-party this exempts the defenders from the liability now sought to be imposed upon them; to that extent and effect adheres to the interlocutor appealed from, assoilzies the defenders, and decerns, &c.

“ Note.—I arrive at the same result as the Sheriff-Substitute, but I do not agree with him in some of the views which he has expressed. For example, I am disposed to think that the expression ‘detention by railway’ in the exemption clause applies to loading and not to discharging time. I also seriously doubt if ‘strikes’ can be held to apply in the present case, as there was no strike among the dock labourers or stevedores which prevented the cargo being put out of the vessel within the stipulated time. But the want of waggons, however occasioned, was the proximate cause of the delay; it was beyond the control of the defenders, and I think it is unreasonable to say that they should have taken delivery upon the quay although there were no means available for removing the cargo.”

The pursuers appealed to the Court of Session, and argued—The defender, it was admitted, had not discharged the cargo from the vessel as he was bound to do by the charter-party in forty-eight running hours after she was ready to begin discharging; his failure to do so could only be excused if he could show that it was due to anyone of the excepted causes in the charter-party. The Sheriff-Substitute cited three cases in which the defenders could be exempted:—(1) Strikes—it was plain that this referred to any delay in loading on account of a strike at a colliery from which the coals were to come, but had nothing to do with a strike of railway employees at the port to which the cargo was consigned. It might be conceivable that a strike of stevedores or of dock labourers might come under this head, because that might impede the “ordinary discharge of the cargo.” (2) Detention by rail—that also implied a delay in loading, but it did not provide for the present case. (3) This delay was not occasioned by any cause “beyond the control of the charterers.” They knew of the strike, and if they had acted properly they would have taken measures to have had a supply of carts down at the docks so as to enable them to get out the cargo. The mistake made by the charterers was in confusing the delivery of the cargo to them and their delivery of the cargo to their own customers. The shippers had no concern with the latter; they were willing and ready to discharge the cargo on to the quay for the charterers to take delivery, but if they did not wish to take it until they could get it away from the quay, they were not entitled to use the pursuers' vessel as a warehouse without paying for it. The difficulties which the defenders put forward as bringing them within the excepted causes in no wise interfered with the “ordinary discharging of the vessel”— Kruuse and Others v. Drynan & Co., July 9, 1891, 28 S.L.R. 958; Grant v. Coverdale & Co., March 24, 1884, L.R., 9 App. Cas. 470; Budgett & Co. v. Binnington & Co., October 31, 1890, L.R., 1 Q.B.D. 1891, 235; Hansen v. Donaldson, June 20, 1874, 1 R. 1066; The “ Carisbrooke,” March 13, 1890, L.R., 15 PD 98; Wyllie v. Harrison & Co., October 29, 1885, 13 R. 92. The Sheriff-Substitute was also wrong in the two points he made in the number of hours; the defenders were admittedly beyond the forty-eight running hours. The ship was a coaster, and therefore reporting was not necessary, but the captain had lodged the ship's papers and the transire with the agents of the charterers by 10 a.m. on 27th January; the time of unloading therefore ran from then, and not from the date when the agent actually lodged them with the authorities, as that was owing to his delay. According to a well-known rule, Sunday should be counted in reckoning demurrage.

The respondents argued—It was admitted that some delay took place in discharging the vessel, but the defenders were exempted from responsibility for that delay by the excepted causes in the charter-party. The charterers had agreed that the coal should be loaded into trucks on the quay, and then taken by the railway company to the gas works. When the ship arrived the company could not give them waggons on account of a strike on their railway system, and therefore there was detention by railway on account of a strike. They did endeavour to get carts to carry the coal to the gas works, but owing to the strike and consequent disorder of the railway service, there was such a pressure upon the carting contractors that no one would take the contract. There was no place for storing coal on Leith Docks. All these circumstances happened from causes beyond their control, and therefore the excepting clause applied. This was the same case as Wyllie v. Harrison & Co., cited supra; Postlethicaite v. Freeland, June 7, 1880, L.R., 5 App. Cas. 599. The clause applied to discharging as well as to loading cargoes.

At advising—