Scottish Court of Session Decisions

By charter-party dated 16th December 1902 Messrs William Cruickshank & Company, iron ore merchants, Glasgow, chartered from Messrs Turnbull, Scott, & Company, steamship owners, London, the s.s. “East-gate” to proceed to Aquilas, Carthagena, or Almeira, as ordered by the shippers, and load a cargo of iron ore, and thereafter “proceed to Glasgow or Ardrossan and there deliver the same as customary where and as directed by consignees … The cargo to be shipped at the rate of 500 tons per working day of 24 consecutive hours (weather permitting), Sundays and holidays always excepted; and to be discharged on same conditions. (Except in the case of strikes of miners or workmen, accidents or stoppages caused by frost at any mine or mines from which shippers may receive part or whole cargo, epidemics, riots, insurrections, quarantine, stoppage of trains, interventions of sanitary, customs, and other constituted authorities, or any cause beyond the personal control of shippers, charterers, or consignees, which may hinder the loading or discharge of the said vessel.) In these cases lay-day hours not to count and demurrage not to accrue. Days to be averaged to avoid demurrage. In case charterers can arrange to load or discharge ship on Sundays or holidays, captain to allow work to be done, half such time to count. Time not to count at port of discharge between the hours of 5 p.m. on Saturdays and 7 a.m. on Mondays, unless used. Loading time to count from 6 a.m. after ship is reported at Custom House and ready, unless work should have commenced earlier, and for discharging when ship is in every respect ready in berth, and in free pratique, as per custom of port; written notice of such readiness being given to consignees during usual office hours. The ship to unload barges sent alongside with all possible despatch (should this mode of shipping be used); and captain to be responsible for any delay incurred by not doing so. Ship to work day and night if requested to do so, and to give use of winches, with necessary steam power and hands, charterers paying all extra expenses. Ship to keep the steam winches in good working order. Demurrage (if any) at the rate of 16s. 8d. per hour.”

The “Eastgate” as instructed proceeded to Aquilas, loaded a cargo, and reached Ardrossan on 22nd January 1903, where she discharged. Thereafter Messrs Turnbull, Scott, & Company brought an action against William Cruickshank & Company in the Sheriff Court of Lanarkshire at Glasgow, concluding for £80, 8s. 4d. of demurrage incurred during the discharge.

A proof was taken by the Sheriff-Substitute ( A. O. M. Mackenzie).

The case involved two separate questions—(1) Had there in fact been demurrage? (2) If there had been, were the defenders liable? Upon the first question the parties were agreed as to the time actually occupied in discharging, but differed as to the time allowed by the charter-party, the question depending solely upon the different interpretations they gave to the expression in the charter-party “working day of twenty-four consecutive hours.” If the pursuers' interpretation was the correct one, admittedly there had been demurrage, whereas if the defenders were right there had been none. The respective contentions of the parties upon this point are set forth by the Sheriff-Substitute in the note appended to his interlocutor.

Upon the second question the pursuers averred that it was customary to discharge iron ore at Ardrossan not only into trucks but also on to the quay, and that at the time when the “Eastgate” was unloading there was ample quay space and trucks available to have enabled the defenders to discharge her within the lay-days had they used all the available means.

The defenders averred that the only customary mode of discharge at Ardrossan was into trucks, and that if any delay had occurred it was due to a deficient supply, for which they were not liable, and which was covered by the clause of exception in the charter-party. They further averred that while the “Eastgate” was discharging there was no available space upon the quay where cargo could have been discharged.

It was proved that the customary method of discharge at Ardrossan was into waggons, and that it was only in exceptional circumstances and under special arrangements that cargoes of iron ore were put on to the quay. The customary hours of working were from 6 a.m. to 6 p.m., but sometimes for special reasons ships discharged during the night. The “Eastgate” did not obtain a full supply of waggons,

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and this was due to the fact that the Caledonian Railway Company, which alone had direct access to the quay, had not sufficient waggons to supply. The defenders endeavoured to prove that the Caledonian Railway Company withheld their waggons because of a block at the Clyde Ironworks, the destination of the cargo, which made it useless to give a full supply. There was a conflict of evidence as to whether the defenders had applied to the Glasgow and South-Western Company for trucks when the Caledonian Company failed them, and as to whether the former could or would have supplied them; also as to whether at the time there was room for the cargo on the quay.

The Sheriff-Substitute on 6th April 1904 decerned against the defenders for £69, 11s. 6d. In his interlocutor he found in fact, inter alia, as follows:—“(1) That the defenders chartered the steamship ‘Eastgate’ from the pursuers as per charter-party to proceed to Aquilas, there load a cargo of iron ore, and being so loaded to proceed to Ardrossan, and there deliver the same as customary; … (3) that the said ship duly proceeded to Aquilas in terms of the charter-party, and there loaded a cargo of 2241 tons of iron ore, and that the time occupied in loading was six working days of twenty-four consecutive hours each; (4) that the ship reached Ardrossan on Thursday, 22nd January 1903, and was ready to discharge cargo on Friday, 23rd, at 10 a.m., and that the discharge of cargo was finished at 10·30 a.m. on Saturday 31st January; and (6) that the detention of the ‘Eastgate’ beyond the lay-days specified in the charter-party is not proved to have been due to any of the causes enumerated in the charter-party as exceptions to the charterers’ liability to pay demurrage.” He accordingly found in law that the defenders were liable in demurrage.

Note.—“This is an action by shipowners against charterers for payment of demurrage, and the first point in dispute between the parties is as to the meaning of the provision in the charter-party—‘The cargo to be shipped at the rate of 500 tons per working day of 24 consecutive hours (weather permitting), Sundays and holidays always excepted, and to be discharged on same conditions.’ The pursuers submit that the words ‘consecutive hours’ are used in their ordinary sense, and that, excepting Sundays and holidays, each period of 24 consecutive hours elapsing after loading or discharging should have begun must be reckoned as a working day in terms of the clause. The defenders on the other hand maintain that the meaning of ‘working day of 24 consecutive hours’ is working day of 24 consecutive working hours, and that non-working hours of working days—that is, hours during which, in accordance with the custom of the ports of loading or discharging, work did not proceed—were not to be counted as part of the ‘24 consecutive hours’ which go to make up each ‘working day.’ I am of opinion that the construction put upon the clause by the pursuers is the right one. It appears to me that the defenders' construction denies all proper effect to the word ‘consecutive.’ I cannot read ‘consecutive hours’ as equivalent to consecutive working hours, or as meaning anything else than hours following one another immediately and without interval of time. This construction is entirely consistent with the other provisions of the charter-party as to the time to be allowed for loading and discharging, and, it may be added, with the interpretation which the defenders themselves put upon the charter-party while the contract was being carried out, as is shown by the letters from the defenders to John Craig, Captain Evans of the ‘Eastgate,’ and the pursuers' agents, Robert Mackill & Company, dated respectively January 24th, January 27th, and February 13th 1903.

“In support of their contention the defenders founded on the case of Rhymney S.S. Co. v. Iberian Ore Co., 79 L.T. 240, affirmed sub nomine The Forrest S.S. Co. v. Iberian Ore Co., 16 T.L.R. 59, but there is a material difference between the terms of the charter-party in that case and this. In the first place, the words which had there to be construed were ‘working day of 24 hours,’ and not as here ‘working day of 24 consecutive hours.’ In the second, the charter-party in that case, after providing that the ship was to work at night if required, provided further that such time was not to count unless used, which, in effect, limited the ‘working day’ in the ordinary case to the hours usually worked, whereas here the charter-party, while providing that the ship is to work at night if requested, does not contain the further provision that the time is not to count unless used, except in regard to the period between 5 p.m. on Saturday and 7 a.m. on Monday, and the fair inference is that hours not worked on working days were intended to count whether used or not.…

“The only remaining question is whether the detention of the ship beyond the stipulated time was due to any of the causes specified in the charter-party as exceptions to the defenders' obligation to pay demurrage. The defenders submit that it was, and it is for them to establish this. They contend that by the terms of the charter-party the cargo was to be delivered ‘as customary’; that this provision is to be read into the clause of exceptions; and therefore that they are exempt from liability if by reason of any of the excepted clauses they were prevented from discharging the cargo in the customary manner within the stipulated time. They allege that by the custom of the port of Ardrossan iron ore is discharged into railway trucks, which was the mode of discharge they adopted, and that the detention of the ship was due to the insufficiency of the supply of waggons given by the Caledonian Railway Company. This they say was within the meaning of the clause of exceptions a ‘stoppage of trains,’ or, at any rate, ‘a cause beyond the personal control of the charterers’ hindering the discharge of the ship.

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“In considering this argument I assume that the defenders would, as they contend, not be liable for the detention of the ship beyond the time stipulated, if owing to any of the excepted causes its discharge ‘as customary’ within that time was rendered impossible. But even making this assumption I am of opinion that it is not enough for the defenders to show that the mode of discharge which they adopted, namely, into trucks, was the most usual method of discharging iron ore at Ardrossan. They must, I think, show further that it was the only mode of discharging ore recognised by the practice of the port which it was within their power to adopt. They bound themselves to load and discharge the vessel at a certain rate per day, and the clause of exceptions only frees them from liability for failure to fulfil their engagement if the impediment arising from the excepted cause be one hindering the discharge of the ship, and I do not think the insufficiency of the waggon supply could be regarded as such an impediment if they could have resorted to another method of discharge recognised by the custom of the port, although not so commonly used or so convenient as that which they adopte.— Granite Steamship Co. v. Ireland & Son, 19 R. 24, 29 S.L.R. 115.

“It is necessary, therefore, to inquire whether there was any other mode of discharging ore than into trucks recognised by the custom of the port of Ardrossan, and on this point the result of the evidence is clear. On the one hand it is clearly proved that much the most usual mode of discharging ore at that port is into trucks, but on the other it is proved just as clearly that if quay space is available the Harbour Company are glad to allow it to be put on the quay, and that this is a recognised method of discharging ore at the port when necessity arises, although it is not generally adopted except where a cargo arrives which has not been sold, or in the case of a sold cargo, where there is a special desire to get the ship away and its departure can be accelerated by discharging part of its cargo in this manner. It is true that only a small proportion of the total iron ore brought to Ardrossan is discharged on to the quay, and that most of the witnesses who speak to the point deny that it is the customary method of discharge, but all I think admit that it is a known method permitted by the harbour authorities, which can be resorted to in cases of emergency, and in this state of the evidence I am unable to hold that the method in question is not in accordance with the custom of the port. It is quite possible that there should be more than one customary method of discharging cargo at a port, and where the charterer's obligation is to discharge ‘as customary,’ his engagement will not, in my opinion, be fulfilled unless he use all the usual methods of dispatch.

“The defenders further argued that in the case of the ‘Eastgate’ the cargo could not have been put on the quay, because there was no quay space available at the time, but I do not think they succeeded in proving this. The only witnesses to the point are Captain Evans of the ‘Eastgate,’ and Mr Craig, who took charge of the unloading of the ship. Captain Evans states that there was ample room on the quay alongside the ship to accommodate the cargo. Mr Craig's recollection is to the contrary, but it is certain that no application was ever made by the charterers to have the cargo put there, and that being so I cannot regard Mr Craig's evidence, founded as it is upon his recollection of the condition of the quay at a time more than a year past, and contradicted, as it is, by that of Captain Evans, as proving that there was no room on the quay for the ‘Eastgate's’ cargo.

“I was referred by the defenders to the cases of Wyllie & Co. v. Harrison & Co., 13 R. 92, and Letricheux & David v. Dunlop & Co., 19 R. 209, in which charterers were held not liable for detention arising from an insufficient supply of railway trucks, but I do not think these cases are applicable as authorities in the present case, as in neither was there any method of discharge available except that which was adopted, viz., into trucks.

“For these reasons I am of opinion that the defenders have failed to show that the detention of the ‘Eastgate’ beyond the stipulated time was due to any of the causes specified in the clause of exceptions, and that I must give decree for the sum sued for in the summons as restricted.”

The defenders appealed to the Court of Session, and argued—(1) There had been no demurrage, the time occupied in loading and unloading not having been in excess of that allowed by the charter-party. The respondents' interpretation of “working day of 24 consecutive hours” adopted by the Sheriff-Substitute was wrong. The true meaning was a day made up of twenty-four consecutive “working” hours, and non-working hours of working days were not to be counted as part of the “24 consecutive hours” which went to make up each “working day.” That neither party contemplated periods of twenty-four consecutive hours was indicated by the exception clause in the charter-party, which provided for breaks due to bad weather, &c., and by the provision—“Ship to work day and night if requested,” which showed that night work ( i.e., work in non-working hours) was abnormal. The provision “days to be averaged” meant that the number of days occupied in the work was to be arrived at by adding up odd hours of work, and then dividing by twenty-four. The respondents' interpretation conveyed no meaning beyond what might have been conveyed by the single word “day.” The expression was practically identical with that in the “ Forrest” S.S. Co. v. Iberian Ore Co., 1898, 79 L.T. 240, aff by H.L., 1879, 16 T.L.R. 59, which ruled the present case. (2) If there had been demurrage the appellants were not responsible, as it was due to a cause covered by the clause of exceptions, viz., scarcity of waggons, a cause ejusdem generis with “stoppage of trains”— Mein v. Ottmann—“ The Lady Palmer,” December 11, 1903, 6 F. 276, 41 S.L.R. 144; Letricheux & David

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v. Dunlop & Co., Dec. 1, 1891, 19 R. 209, 29 S.L.R. 182; J. & A. Wyllie v. Harrison & Co., October 29, 1885, 13 R. 92, 23 S.L.R. 62. Discharge into trucks was the only customary method at Ardrossan, and therefore the only one they were bound to adopt— Ardan Steamship Co. Limited v. Weir & Co., Jan. 19, 1904, 6 F. 294, 41 S.L.R. 230. But even had it been customary to discharge on to the quay, it was proved that in the present case that method was impossible owing to lack of room. The respondents' suggestions that the Caledonian Railway had withheld trucks because of a block at the Clyde Ironworks, for which the appellants were responsible, or that trucks could have been supplied by another railway company, were unfounded. They were entitled to deduct all the time, night as well as day, during which trucks were not supplied.

Argued for the respondents—(1) There had been demurrage, for the interpretation of “working day of twenty-four consecutive hours” adopted by the Sheriff, viz., each period of twenty-four consecutive hours elapsing after loading or discharging had begun, was the correct and natural one. Otherwise no meaning was given to the word “consecutive,” for there never could be twenty-four consecutive “working” hours. The evidence showed that night-work was done at Ardrossan, and night-work was treated as normal in the charter-party, no special rate of remuneration being provided. The expression “days to be averaged” meant merely that the times occupied in loading and unloading the cargo were to be looked at together and any time saved over the one operation could be added to the time taken over the other. 2. The appellants were liable, because (1) on the assumption that the delay was caused by want of trucks (a) that was not a cause covered by the clause of exceptions, want of trucks and “stoppage of trains” not being ejusdem generis, the latter referring only to detention or stoppage en route— Granite Steamship Company v. Ireland & Son, November 20, 1891, 19 R. 124, 29 S.L.R. 115; Kruuse v. Drynan & Co., July 9, 1891, 18 R. 1110, 28 S.L.R. 958. (b) Even if it were, it was not a cause beyond the personal control of the appellants, as the want of trucks was due to the block at the Clyde Ironworks, for which they were responsible— Holman & Son v. Harrison, 29 S.L.R. 47, and also to the fact that they made no effort to get trucks from other railway companies. (2) The delay was caused by the failure of the appellants in the absence of trucks to unload on to the quay— Gardiner v. Macfarlane, M'Crindell, & Co., February 24, 1893, 20 R. 414, 30 S.L.R. 541 Unloading on to the quay was one of the customary methods at Ardrossan. In any event the appellants were not entitled to deduct the night hours, during which it was not customary to supply trucks.

At advising—