Scottish Court of Session Decisions

The “Abchurch” Steamship Company, Ltd., 5 Fenchurch Street, London, owners of the s.s. “Abchurch,” of London, pursuers, brought an action in the Sheriff Court at Glasgow, against Hugo Stinnes, coal exporter, Glasgow, defender, for payment of £77, 8s., being demurrage which they alleged to be due to them in terms of a charter-party, dated 18th May 1909, at the rate of 16s. 8d. per hour during 3 days 20 hours 53 minutes, from 13th to 17th August 1909, during which time their vessel had been detained over her stipulated lay time in loading a cargo of coal at Methil.

The charter-party provided, inter alia — “That the said ship being tight … shall, with all convenient speed, sail and proceed to a loading-berth, as ordered by the freighter or agents at Grangemouth, Leith, Methil, or Burntisland Docks, as ordered before leaving last discharging port, and there load in the customary manner a full and complete cargo of coal, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture … The cargo to be brought to and taken from alongside at merchant's risk and expense, according to the custom of the ports. The vessel is to be loaded in 66 running hours (from 2 p.m. Saturdays to 6 a.m. Mondays, colliery and other holidays excepted unless used) … The time for loading is to commence from the first high water after arrival in Roads, and written notice of readiness, given in ordinary business hours.… Demurrage at the rate of 16s. 8d. per hour to be paid for all detention over the specified time for loading … accidents, holidays, strikes, lock-outs, or stoppages at the colliery or collieries with which ship is booked to load, or of frost, floods, riots, storms, detention by railway or cranes, stoppage of trains, accidents to machinery or any other unavoidable cause preventing the loading … of the cargo, excepted from hours named for loading.”

The defenders pleaded—“(1) The delay in respect of which the present claim for demurrage is made having arisen from a detention by cranes, and the same being an exception from the lay time expressly provided for by the charter-party between the parties, the defender is entitled to absolvitor. (2) The delay complained of being due to an unavoidable cause preventing the loading of the cargo, expressly provided for by the charter-party in question, the defender is entitled to absolvitor.”

The facts are given in the note of the Sheriff-Substitute (A. O. M. Mackenzie), who on 23rd July 1910, after a proof, pronounced this interlocutor—“ Finds in fact (1) that by charter-party the defender chartered the pursuers' s.s. ‘Abchurch’ to carry a cargo of coal from Methil to Rouen; … (3) that the only method of loading at Methil Harbour is by cranes; (4) that the ‘Abchurch’ arrived at Methil Harbour on the morning of Tuesday, 10th August 1909, and the first high water after she arrived and gave notice of the readiness to load was at 9·27 a.m. on the same day, but owing to a congestion of traffic in the harbour she did not obtain a berth opposite a crane until 10·15 p.m. on Saturday, 14th August, and did not complete her loading and sail until 1·20 a.m. on 17th August; (5) that the detention of the ‘Abchurch’ beyond the hours named for loading in the charter-party was caused by her inability to obtain the use of a crane for loading, and could not have been avoided by the defender: Finds in law, in these circumstances, that the detention of the ‘Abchurch’ was a detention by cranes in the sense of the charter-party, and that the defender is not liable to the pursuers in demurrage: Therefore assoilzies the defender from the conclusions of the petition.”

Note.—“The material facts of the case have now been clearly ascertained by admission and proof, and are as follows — The port at which the ‘Abchurch’ was required to load was Methil Harbour, in the county of Fife. The only method of loading at that port is by means of hydraulic hoists or cranes on the quay wall. Of these cranes there are six, and until a vessel is berthed opposite one of them her loading cannot proceed. By the authorised bye-laws, which have been confirmed by the Sheriff, ships are entitled to have a loading berth assigned to them according to the order in which they arrive and give notice of their readiness to load, but besides the authorised bye-laws there are certain private regulations of the railway company which owns the harbour, which are enforced by the harbour-master, and which provide that as regards two of the loading berths priority is to be given to ‘regular traders,’ and as regards the other four to ‘ordinary traders’ — ‘regular traders’ are steamers which trade regularly between Methil and certain specified ports; ‘ordinary traders’ are steamers which are not ‘regular traders.’ The ‘Abchurch’ was not a ‘regular trader.’ The regulations referred to were known to the defender and to the shipbrokers through whom the charter was negotiated on the pursuers' behalf, and are generally well known to shipowners and coal exporters in both Scotland and England. The ‘Abchurch’ arrived at Methil on the morning of Tuesday, 10th August 1909. The first high water after her arrival was 9.27 a.m. of that day. Before that time notice of her readiness to

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load had duly been given. A loading berth opposite a crane was not assigned to her until 10·15 p.m. on Saturday 14th August. Prom the time of her arrival in the harbour until 12th August at 7·50 p.m. all the cranes were occupied by ships which had arrived before her, but at that hour a berth opposite a crane became vacant, and being one of the two at which a preference was given to ‘regular traders’ was assigned by the harbour-master to the ‘J. O. Scott,’ a ‘regular trader’ which had arrived at the harbour on the evening of 11th August. The defender's agent did not remonstrate against the harbour-master giving this berth to the ‘J. O. Scott,’ but it is proved that remonstrances had been made against priority being given to ‘regular traders’ on previous occasions without effect. At the time when the ‘J. O. Scott’ was berthed for loading several ‘ordinary traders’ which had arrived before the ‘Abchurch’ were waiting their turn. There is no evidence to show whether or not the cargo of these boats was ready. The ‘Abchurch’ completed her loading and sailed on Tuesday 17th August at 1.20 a.m. Deducting the twenty-four hours from 12 midnight on Saturday the 14th to 12 midnight on Sunday the 15th, which were not used, the time actually occupied in loading the ‘Abchurch’ was twenty-seven hours five minutes, of which one hour was occupied in bunkering. The usual time occupied in loading a steamer of her size at Methil is about twenty-six hours. The whole time from the first high water after her arrival in harbour until she sailed was one hundred and fifty-nine hours fifty-three minutes.

These being the material facts, the first question is whether the detention of the ‘Abchurch’ during the time when she was unable to obtain the use of a crane owing to all the loading berths being occupied by other vessels which had arrived before her was a detention by cranes in the sense of the clause of exceptions. In considering the relevancy of the defence I expressed the opinion that it was, but I was asked by the pursuers' agent to reconsider the question in light of the fact above referred to that the average time required at Methil for the actual work of loading such a vessel as the ‘Abchurch’ is about twenty-six hours. It was suggested as a fair inference that the margin of forty hours allowed by the charter-party had been intended to provide for detention which might be caused by the ship being unable to obtain a loading berth. I have willingly reconsidered the question, as the words to be construed are unusual and their construction by no means free from difficulty, but I am unable to draw the suggested inference, as it seems to me that the margin allowed by the charter-party over and above the time actually required for loading may equally well have been intended to provide for detention due to delay on the part of the collieries supplying the cargo to send it forward, and upon reconsideration I have failed to find any sufficient reason for altering the opinion I previously expressed on the construction of the charter-party. Two things are certain. Some meaning must be given to the words which will not deprive them of all effect, and they cannot be construed according to their plain and literal meaning without denying their effect, because a crane can never detain a ship by its direct action. The question really comes to be whether their meaning is limited to delay caused by the break-down of a crane of which the ship might have obtained the use, or whether they cover delay caused by the ship not being able to obtain a berth opposite a crane and so not being able to obtain the use of a crane for loading. I think that the latter interpretation more probably accords with the true intention of the parties.

The only other question is whether, upon the assumption that the construction I have put upon the words of the charter-party is correct, the detention of the ‘Abchurch’ ceased to be an unavoidable detention by cranes in the sense of the charter-party when the berth became vacant which was assigned to the ‘J. O. Scott.’ In point of pecuniary value this question is not of much importance, as, if it were to be answered in the affirmative, the pursuers would only, according to their own calculation, be entitled to £1, 17s. 6d. of demurrage; but in my opinion it falls to be answered in the negative. The pursuers argued that in making their contract the parties must have contemplated that the authorised bye-laws would be adhered to, and could not have contemplated consequences arising from the enforcement of the unauthorised regulations. I cannot agree. I think that the parties must be held to have contracted with reference to the actual practice with regard to loading prevailing and well known to prevail at the port; and it is, I think, sufficiently proved that the defender could not have done anything to prevent the ‘J. O. Scott’ being berthed before the ‘Abchurch.’

For these reasons I am of opinion that the pursuers' claim for demurrage fails.”

The pursuers appealed to the Court of Session, and argued—This was not “detention by cranes,” because (1) it was failure to obtain a berth, and (2) even if this were not so, it could not be “detention by cranes” if the parties never got cranes at all. If failure to obtain a berth was to excuse the defender it would be natural to look for it expressly in the charter-party and not by implication. This was the case in Lilley & Company v. Stevenson & Company, January 19, 1895, 22 R. 278, 32 S.L.R. 212. In such cases the risk was with the shipowner till a berth was obtained. But the present case belonged to the class of which Horsley Line Limited v. Roechling Brothers, 1908 S.C. 866, 45 S.L.R. 691, was typical, where the lay-days began from the arrival of the vessel in the roads, and in such cases the risk of finding a berth was with the charterer. “Detention by cranes” meant detention through the breakdown of cranes or detention attributable to the cranes. Nor did

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the words “any other unavoidable cause” protect the charterer, because these words must be construed ejusdem generis with those which immediately preceded— Thorman v. Dowgate Steamship Company, Limited, [1910] 1 KB 410. The exception must be something accidental or abnormal and different from delay caused by a crowded harbour— per Lord Macnaghten, ibid., p. 423; in re Richardson v. M. Samuel & Company, [1897] 1 Q.B. 261; Thames and Mersey Marine Insurance Company v. Hamilton, Fraser, & Company, 1887, 12 App. Cas. 484. If it had been intended to exclude the ejusdem generis construction and to include every sort of hindrance, it would have been easy to use words to that effect— Larsen v. Sylvester & Company, [1908] AC 295.

Argued for the respondents—Delay had been caused by a specifically provided-for exception, viz., failure to obtain cranes. No ship was ever directly detained by cranes, just as no ship was ever directly detained by railways— Letricheux & David v. Dunlop & Company, December 1, 1891, 19 R. 209, 29 S.L.R. 182. There it was laid down that “detention by railways” covered failure to supply trucks. Detention by cranes meant, therefore, detention connected with cranes. The exception “accidents to machinery” covered the breaking down of cranes. A clause of this nature was not common in charter-parties, and it must be presumed to have been drawn with a view to the particular custom of this port, the only method of unloading at Methil being to get a vessel into a berth opposite a crane — Postlethwaite v. Freeland, 1880, 5 App. Cas. 599, per Lord Blackburn, p. 613. In any event the charterer was protected by the words “any other unavoidable cause.” In recent cases it had been laid down that the ejusdem generis principle could not be applied so as to limit the universality of the words unless all the enumerated cases fall into the same genus— S.S. “ Knutsford” Limited v. Tillmans & Company, [1908] AC 406; Thames and Mersey Marine Insurance Company v. Hamilton, Fraser, & Company ( cit. sup.). The case of Larsen v. Sylvester & Company ( cit. sup.) showed that if the enumerated cases did not fall into one genus the general words could not be limited. The only genus to which the exception here could be assigned was any cause beyond the control of the charterers, and this particular cause fell within that genus.

At advising—