Scottish Court of Session Decisions

The owners of the steamship “Chassie Maersk,” pursuers, brought an action against Messrs Love & Stewart, Limited, pit-prop importers, Glasgow, defenders, concluding (1) for £260 damage incurred through undue delay at the port of discharge, and (2) for £87 for balance of freight.

The defenders pleaded, inter alia—“3. Any delay in regard to the discharge of the cargo having been occasioned by a strike of the defenders' employees, and not by any circumstance for which the defenders are responsible, the pursuers are not entitled to damages for detention.… (6) The defenders having paid freight on the quantity of cargo shipped, et separatim on the quality set forth in the bill of lading, they are entitled to be assoilzied from the second conclusion of the summons.”

The facts are given in the opinion ( infra) of the Lord Ordinary ( Dewar), who on 3rd April 1914, after a proof, decerned against the defenders for payment to the pursuers of the sum of £220, with interest as concluded for, in full of the conclusion for demurrage, and the sum of £87 as concluded for in full of the conclusion for freight.

Opinion.— Demurrage.—The ‘Chassie Maersk’ was chartered by the defenders to bring, and did bring, a cargo of pit-props from St Petersburg to Granton. In ordinary circumstances she would have discharged in about five days, but owing to a strike among the workmen in the defenders' woodyard they had difficulty in disposing of the cargo, and the vessel was delayed for a considerable time.

The charter-party, which is dated 13th March 1913, provides (I omit all reference to loading as the question only arises on discharge) that the cargo was to be discharged with customary steamship dispatch, as fast as the steamer can deliver, during the ordinary working hours of the ports, but, according to the custom of the ports, Sundays, general or local holidays (unless used) excepted. Should the steamer be detained beyond the time stipulated as above for discharging, demurrage shall be paid at twenty pounds per day, and pro rata for any part thereof.

There being no lay-days specified in the contract it was the duty of the defenders to perform their part of the discharging within a reasonable time—that is to say, a reasonable time in the circumstances which then existed, even although the circumstances were unusual. The pursuers say that the defenders have failed to do so and are consequently liable in damages.

The defenders admit that the vessel was detained, but they deny that they are responsible for such detention, because they say it was caused by a strike which rendered it impossible to discharge the cargo with ordinary dispatch, and they found upon clause 5 of the charter-party, which provided (I again omit reference to loading)—‘If the cargo cannot be discharged by reason of a strike or lock-out of any class of workmen essential to the discharge of the cargo, or by reason of epidemic, the time for discharging shall not count during the continuance of such strike or lock-out or epidemic (a strike or lock-out of … receivers' men only shall not exonerate them from any demurrage for which they may be liable under this charter if by the use of reasonable diligence they could have obtained other suitable labour).’

The facts upon which the question of the defenders' liability turns are briefly these—There are two methods of discharging pit-props customary in Granton docks. At the middle wharf, where small vessels can be accommodated, the props are taken from the vessel and piled upon the quay; and at the west wharf, where the ‘Chassie Maersk’ was berthed, there being no space on the quay for piling, the props are placed upon railway waggons and taken to any destination the receiver may direct. The defenders usually direct them to be taken to their woodyard, about a quarter of a mile from

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the dock; but on the occasion in question there was a strike among the men in their yard, and although there was no difficulty in removing the props from the ship to the railway waggons, the defenders could not send the waggons to their yard because their men would not unload them. The defenders disposed of part of the cargo by dispatching it direct from the ship to a colliery, but they did not succeed in disposing of it all in this or any other way, and the vessel was detained until the strike terminated.

In these circumstances the first question is whether the strike in the defenders' wood-yard may fairly be regarded as a strike of workmen ‘essential to the discharge of the cargo’ within the meaning of the contract? I do not think it can. The men on strike were probably essential to the disposal of the cargo in the yard, but they were not essential to the discharge of it from the ship. That was done by dock labourers, and there was no strike among them. To ‘discharge’ a cargo means to deliver it over the side of the ship. It is a joint operation in which both the shipowner and the consignee are concerned. The one delivers and the other receives the cargo, and when it is received the ship is ‘discharged.’ It is no concern of the shipowner how the consignee may dispose of it—he may or may not take it to his yard—that is his own affair, and is no part of the operation of discharging. I do not think that the pursuers in this case took the risk of any strike except a strike among the dock labourers who actually received the cargo from the ship. The case of Langholm Steamship Company v. Gallacher, 2 Irish Reports (1911), p. 248, appears to me to be in point. In that case a strike among carters rendered it impossible to accept delivery of the cargo, there being no space for it in the docks or means of taking it away when tendered over the side of the ship. It was held (under a strike clause similar to this) that carters were not a class of workmen essential to the discharge of the cargo within the meaning of the clause, and that the shipowners did not take the risk of a strike except among dock labourers, who alone were essential, and that the taking away of the cargo in carts was no part of the operation of discharging.

But the defenders argued that the customary method of discharging pit-props at Granton was to convey them from the docks to their woodyard, and as the obligation to discharge was indefinite as to time and qualified by reference to the custom of the port, every impediment arising out of the custom which they could not overcome by reasonable diligence ought to be taken into account. But I do not think that it is the custom of the port to convey props to the consignee's yard. It is true that the defenders usually directed the railway company to take the waggons to their yard. It apparently suited them to do so, as it probably suited other consignees to transmit goods to their premises. But that was only one way of disposing of the cargo, and cannot, I think, be regarded as a custom of the port. The custom of the port was, as I have said, to pile the props on the quay or load them on waggons. There it ended. In Coverdale v. Grant, 9 App. Cases, 470, a ship was chartered to load iron ore ‘in the customary manner … cargo to be supplied as fast as steamer can receive … except in case of hands striking work, or frost or flood, or any other unavoidable accidents preventing the loading.’ The charterer had iron ore in a canal outside the dock. Frost prevented the transit of this ore by water. It was possible, though expensive, to bring it by land. It was held that the charterers were liable for delay as the frost did not prevent the loading but only the transit of the cargo to the place of loading by one of the ways usual at the port. I think that principle is applicable here. The strike in the defenders' yard prevented the disposal of the cargo in one of the usual ways. But there were other ways of disposing of it. Part of it was in point of fact sent to a colliery direct from the ship, and if the defenders had used reasonable diligence I am of opinion that they could have disposed of it all in the same way. There was a brisk demand from the collieries at the time owing to the strike. Mr Reid admits that they were getting good prices, but it apparently did not occur to him to offer special terms in the circumstances. There is no evidence that any special efforts were made at all. The defenders appear to have been willing to sell if they got good prices, but not otherwise. I do not think that they were entitled to adopt that attitude at the expense of the pursuers. Then it appears that they were dispatching pit-props from two of their own vessels—the ‘Faerder’ and the ‘Sheaffield,’ while they kept the ‘Chassie Maersk’ waiting. It was said that the props from these vessels were of more suitable lengths, but I am not satisfied that that is the correct explanation. Mr Reid stated—‘I admit that there were sent away from Granton to various collieries consignments of props from other vessels than the “Chassie Maersk” at a time when the “Chassie Maersk” was standing and not being discharged. My explanation is that the props were of more suitable lengths for the orders we had on hand.’ But he does not appear to have made very careful inquiry on this matter, because he is asked—‘(Q) Are there not various orders prior to this period for props of the lengths which the “Chassie Maersk” was carrying?—(A) I am not prepared to say.… (Q) Taking an example, have you any explanation why on 31st May you confirmed having an order for props of 6 1 2 feet, and props of that size were on the “Chassie Maersk,” and were not being discharged?—(A) I cannot give any explanation.’ And finally he admitted that ‘the collieries were taking any size we sent them, but they had a preference for what was nearest their dimensions.’ If good prices were being obtained and collieries were taking any size sent them, I do not think it would have been difficult to dispose of this cargo if the defenders had made any real effort to do so. But even if they had not succeeded in selling it all I can see no reason why they should not have

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stored it. Mr Wood says—‘We made no attempt to find any place where we could discharge the props because we knew that it could not be done.’ But one never knows what can be done until one tries. Most things can be obtained if one is willing to pay the price, and I see no reason why space to accommodate pit-props should not be found by anyone who looked for it and was willing to pay for it. They are light and easily handled and do not require to be under cover. Any field would do, and it is out of the question to say that there was no field available. Sooner or later the whole cargo found its way to the collieries, and I see no reason why, by arrangement, it should not have been stored temporarily at or near some of them. It is admitted that the workmen made no objection to the wood being handled except in the yard. I think the admission that no attempt was made to find any place to discharge the cargo shows that the defenders did not use reasonable diligence.

Mr Sandeman referred me to the case of the ‘ Alne Holm,’ 1893, Probate, p. 173, where the charter-party provided that the cargo was to be discharged with ‘the customary steamer dispatch of the port … strikes, lock-outs, or combination of workmen … not to count as part of the discharging time … the usual custom of the wood trade to be observed.…’ There was a strike among men in the timber trade who discharged the lighters, so that the lighters were not available, and it was held that the defenders were relieved from liability, the ground of judgment being that ‘the only customary mode of discharging of such a cargo as that of the “Alne Holm” was by lighters in which the timber is lightered to Gloucester, and it is clear to us that the parties contemplated that discharge should take place in that manner, and in fact it was the only practicable way in which it could be done. But in the present case I do not think that the parties had in contemplation that the defenders were to dispose of the cargo in their yard, nor was that by any means the only way in which it could have been disposed of.

The defenders further founded on the fact that the railway company had refused to supply waggons to convey the props to their yard, and they argued that this was a matter for which they were not responsible under their contract. As the contract is silent as to the time within which they were to discharge the cargo their obligation was only to discharge in a reasonable time under the circumstances, and if the difficulty in obtaining waggons had not been caused or contributed to by the defenders themselves I do not think that they could have been held liable— Lyle Shipping Company v. Corporation of Cardiff [1900], 2 Q.B. 638. But I think the failure to get waggons was really their own fault. The railway company refused to send waggons to the yard, where they admittedly could not be unloaded, but they were quite willing to send them to any other place the defenders might name, and did in point of fact send them to the collieries when asked. There was no scarcity of waggons and no refusal on the part of the railway company to supply them. They offered them for transit but declined to supply them for the purpose of storing pit props. In these circumstances it is for the defenders to prove that they ‘had done the best in the actual circumstances to make the appliances of the port available’—‘ Arne’ [1901], P. 184. In my opinion they have not done so. If they had used reasonable diligence they would have discovered means of disposing of the cargo, and would have had no difficulty about waggons. I am therefore of opinion that the defence on the question of demurrage has failed and that the defenders are liable in damages.

If I am right in thinking that the defenders are liable, the next question is the amount of damages.

The ‘Chassie Maersk’ left St Petersburg on 17th May. Parties had arranged that she should proceed to Granton Roads and there wait instructions, as the defenders had not decided whether she would be discharged at Bo'ness or Granton. She reached Granton Roads at 4·10 p.m. on Saturday, the 24th. The captain came ashore and telegraphed to the defenders at their Glasgow office, but it was after office hours and the message was not received until Monday morning. Instructions were sent on Monday afternoon and the vessel was berthed in Granton Docks the same evening, and ready to discharge on Tuesday morning, the 27th. The pursuers argued that Monday, the 26th, was lost through the fault of the defenders in respect that they ought to have anticipated the arrival of the ship and left instructions at the docks or with the pilot. If they had done so the pursuers say that she could have been berthed on Saturday and ready to unload on Monday morning. The defenders deny that there was any obligation upon them to make arrangements before they received notice of the actual arrival of the vessel, and they explain that it would have been inexpedient for them to decide until the last moment whether to send the vessel to Bo'ness or Granton-everything depended on the progress of the strike. I think this is a narrow point. The defenders must have known that there was a probability of the vessel arriving after office hours on Saturday, and it would have been easy, and I think reasonable, for them to have left a message at Granton which the captain could have received, and if they had done so discharging could have commenced on the Monday. And I doubt whether it was legitimate to take a strike which did not concern the pursuers into consideration. But, on the other hand, they were not, I think, legally bound to make arrangements or take action before they received notice that the ship had arrived. Something unforeseen might have occurred to detain her, and arrangements which may have involved cost would be rendered useless. And as they did not, in fact, receive notice in the ordinary course of business until Monday, I cannot hold them responsible for the loss of that day. The first day, therefore, which I take into account is Tuesday, the 27th May. Discharging ought

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to have commenced then. Parties are I think agreed—in any case it is proved in evidence—that discharging should have been completed in five days—that is to say, on Saturday, the 31st. It was not, in fact, completed until Wednesday, the 11th of June, at 5·45 p.m. The ‘Chassie Maersk’ was therefore unduly detained for eleven days, which, at the rate of £20 per day, represents a loss of £220 to the pursuers, and I accordingly grant decree for that amount.

Freight.—I now come to the other branch of the case—the question regarding the balance of freight. The pursuers say that the cargo consisted of 653 fathoms, while the defenders maintain that it was 595 fathoms, and they have only paid freight on that amount. The claim is for the difference between these two amounts, viz., 58 fathoms at £1, 10s. per fathom—£87.

The dispute on this question of fact arose in this way. The pit-props in question are taken from a forest which is situated near Lake Ladoga, about 100 miles from St Petersburg. When the wood is cut it is customary to bring it down to the shore of the lake, where it is measured. After the quantity is ascertained it is then put upon lighters. The lightermen give certificates or bills of lading for the amounts, and the cargo is taken down to St Petersburg, where it is transferred to the steamer from the lighters. The defenders say that the cargo in question was carefully measured in this way, and that they received bills of lading from the lightermen who conveyed it certifying the amount to be 595 fathoms. But the shipowner does not usually accept the up-country measurement, at which he is not represented, and takes a tally of his own at the ship's side as the wood is being put on board. The pursuers measured this cargo in that way conform to the terms of the charter-party, which provides ‘per in-taken piled fathom of 216 cubic feet.’ The tally was taken by the ship's officers, assisted by two independent professional checkers engaged and paid by the pursuers. The wood is measured in a double frame made of wood, 7 feet long by 3 feet high. The props are placed in this frame until it is full, and then they are slung into the ship. The cubic contents of the frame are ascertained by multiplying the length of the frame by its depth and the length of the props. That is what is known as a ‘pile of in-taken fathoms.’ The captain asked the defenders' representative at St Petersburg to send men to check the measurements as the wood was taken on board, but he said that he already knew the accurate measurements, viz., 595 fathoms, which had been taken up country, and had bills of lading for it and did not require to do it again. When the pursuers' tally was completed it showed a cargo of 653 fathoms. The defenders' representative challenged the accuracy of this and insisted on his own figures being put in the bill of lading, and this was done. But the pursuers protested, and the captain signed ‘under dispute for quantity.’

In these circumstances the question is, Whose measurement is correct?

The first and second mates gave evidence for the pursuers (the evidence of the first mate was taken on commission). They both describe the manner in which the measurement was taken and speak to the accuracy of their figures. They both kept tally books in which they jotted down the number of fathoms as they were put on board [see also Lord Dundas’ opinion on this evidence], and every night the chief mate added up the figures and noted the sum total in another note book which is produced, No. 132 of process. The tally books have gone amissing and are not produced, but they were examined by Mr Wark, Messrs Boyd, Jameson, & Young's assistant, and he found that the figures noted in them correspond with the figures in No. 132 of process. This, together with the fact that the ‘Chassie Maersk’ was fully loaded, and is capable when fully loaded of carrying a cargo of 653 fathoms, is practically the whole evidence for the pursuers. They put in process certificates by the independent checkers, but these checkers were not examined as witnesses and the documents were not proved, and I do not therefore take them into consideration.

It is possible that the pursuers' figures may not be accurate, because the method of measurement, although customary, is necessarily rough and ready, especially with props of different lengths; but I see no reason to doubt that the tally was quite bona fide and the evidence honestly given.

The defenders do not dispute that the pursuers adopted the customary method of measuring at the ship's side, but they led a good deal of evidence to show that it could not be accurate. That is probably true. If the props had been all of the same size each frame load would have been of the same weight. But they are of different lengths, and although the men loading endeavoured to keep those of similar lengths together that was not easy in the limited space, and it was not disputed that estimates and allowances had to be made which are not consistent with complete accuracy. The defenders also led evidence to show that the up-country system of measurement was much more likely to be accurate. I think that that is also probably true. The system is to pile the props on the shore of the lake, sort them out into similar lengths, and measure them in the presence of the men who cut them and who are paid by measurement. That is the usual system, and the probability is that it is accurate, and the lightermen appear to accept it as accurate and grant bills of lading without question; and if the defenders had proved by competent evidence that the props in question were measured in that way I should have been disposed to accept their measurements. But I do not think they have. They produced certificates dated February 1914 which are said to be from the men who measured, but the men did not appear as witnesses. They also produced bills of lading said to be granted by the lightermen, but the lightermen are not examined. These documents were not proved, and cannot therefore be received in evidence— New Line Steamship Company v. Bryson & Company, 1910 S.C. 409.

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Mr Saxbeck, the defenders' superintendent at Lake Ladoga, gave evidence and described the system, but he did not make the measurements and obviously did not know anything about them, for he thought it necessary to obtain a certificate from the actual measurer. I think the defenders have failed to prove the quantity of props they aver were put upon the lighters at Lake Ladoga, and even if they had proved that, they have not proved that the same quantity was put upon the ‘Chassie Maersk.’ The lighters came down to St Petersburg in October and lay all winter in dock, and it appears to be customary to permit the lighters to use the props for firewood, and it is at least possible that some of it might go amissing in other ways. Perhaps that is not very probable, but the possibility of it has not been excluded. It is possible, as I have said, that the pursuers' figures may not be quite accurate, still they are at least substantially accurate, and they were ascertained by the method provided for in the charter-party and in accordance with the usual custom. The defenders were invited to check them and declined to do so. They relied upon their own figures, and have not proved that they were correct. I am therefore of opinion that they have failed in this branch of the case also.

The defenders argued that they are only liable for freight on the quantity of cargo shipped as set forth in the bill of lading. No doubt this would have been so if the pursuers had agreed that the figures in the bill of lading were correct, but they protested against the figures at the time, and the captain signed as I have said ‘under dispute for quantity;’ and further, the bill of lading states that ‘weight, measure, quality, and condition’ are unknown. It was settled in the case of Jessel v. Bath, 1867, 2 Exch. 267, that a person signing a bill of lading under such circumstances does not bind himself to the quantity mentioned therein.

“On the whole matter I am of opinion that the pursuers are entitled to decree for (1) £220, and (2) £87, with interest, and expenses.”

The defenders reclaimed and argued—(1) On the Question of Demurrage.—The defenders were bound to discharge with customary dispatch. Customary dispatch at Granton meant by means of waggons. The supply of waggons was, however, conditional on the capacity of the charterers to take discharge at their yard. Here there was no provision for lay-days, and therefore no absolute and unconditional duty on the charterer to take discharge within a fixed period. The charterers’ part of the duty of discharge was merely to take reasonable means to provide waggons in the circumstances then existing, and the means by which and the conditions upon which waggons might be provided were among the “circumstances then existing,” and subject to the same standard of reasonableness— Postlethwaite v. Freeland, 5 A.C. 599, per Lord Selborne at 608, Lord Hatherley at 611, and Lord Blackburn at 613; Ford v. Cotesworth, 1868, 4 Q.B. 127; Hulthen v. Stewart & Co., 1902, 2 K.B. 199, per Collins, M.R., at 204, and 1903 AC 389, per Lord Halsbury at 391. The onus was on the pursuers to show that the defenders had not exercised reasonable diligence— Hick v. Raymond & Reid, 1893 AC 22, per Lord Herschell at 28 and 32. The immediate reason for the failure to discharge was not the strike at the defenders' yard, but the declinature of the railway company to give the means of discharge in the customary manner, i.e., by waggons. In Wyllie v. Harrison, October 29, 1885, 13 R. 92, 23 S.L.R. 62, the charterers were relieved because of a failure in the supply of waggons as here. So also in the “ Alne. Holme,” 1893 Prob. 173, per Gorell Barnes, J., at 178, where there was a failure in the supply of lighters. Regard must be had to the actual circumstances at the time of discharge, and also to what was customary— The Lyle Shipping Company, Limited v. The Corporation of Cardiff, [1900] 2 QB 638, per Romer, L. J., at 648. The proximate cause of the delay must be looked to, i.e., the refusal of the railway to give waggons— Letricheux & David v. Dunlop & Company, December 1, 1891, 19 R, 209, per Lord President at 213, 29 S.L.R. 182, at 185; Mein v. Ottman, December 11, 1903, 6 F.276, 41 S.L.R. 144. The case of Grant & Company v. Coverdale, Todd, & Company, 9 A. C. 470, relied on by the respondents, had no application, for there there were lay-days. Neither had Hudson v. Ede, L.R., 1868, 3 Q.B. 412; Good & Co. v. Isaacs, [1892] 2 QB 555; Budgett & Company v. Binnington & Company, [1891] 1 QB 35; The Sailing Ship “Allerton” Company v. Falk, 1888, 6 Asp. M.C. 287; Langham Steamship Company v. Gallacher, [1911] 2 I.R. 348. The loading cases cited by the respondents were no guide. It was clear from them that the obligation to provide a cargo was absolute unless specially qualified, and this independently of the charter-party, and separate from any question of mutual duties in loading and discharging. The obligation to load was an absolute obligation on the charterer. Loading cases had nothing to do with the question what was the obligation at the other end, and had no application to the question of reasonable diligence— “Ardan” Steamship Company, Limited v. Andrew Weir & Company, 1905 AC 501, per Lord Halsbury, 509; Gardiner v. Macfarlane, M'Crindell, & Company, February 24, 1893, 20 R. 414, 30 S.L.R. 541; Kay v. Field & Company, 1882, 10 Q.B.D. 241; “Arden” Steamship Company, Limited v. Mathwin & Son, 1912 S.C. 211, 49 S.L.R. 143. The case of “ The Arne,” 1904 Probate 154, turned on its own particular circumstances, the main question being whether the shipper should not have exercised the option of taking alternative modes of discharge. The case of Dampskibssel-skabet Danmark v. Paulsen & Company, 1913 S.C. 1043, 50 S.L.R. 843, also was special. The agreement here was to provide and make proper use of sufficient means of discharge within reasonable time under the circumstances then existing. Where, as here, there was in the charter-party a reference to the custom of the port, every impediment arising out of it which the charterer could not overcome by reasonable

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diligence had to be taken into consideration. On the evidence the appellants gave no preference to other vessels over the “Chassie Maersk” and tried all the substitute means. In any event, clause 5 of the charter-party exempted the respondents from liability to pay demurrage, for here there had been a strike of workmen essential to the discharge within the meaning of that clause. The Lord Ordinary had gone wrong, and his interlocutor should accordingly be recalled. (2) On the Question of Freight.—The figure in the bill of lading was 595 fathoms, and it was for the respondents to upset that figure—Carver, Carriage by Sea (5th ed.), section 69; M'Lean v. Hope & Fleming, March 27, 1871, 9 Macph. (H.L.) 38, 8 S.L.R. 475; Harrowing v. Katz & Company, 1894, 10 T.L.R. 115 and 400; Smith v. Bedouin Steam Navigation Company, [1896] AC 70, per Lord Halsbury at 75. The bill of lading was signed under protest it was true, but it was for the master and his employers to make good the protest. They had failed to do so. The only complete tally at the first mate's end of the ship was by the independent tallyman. He was not brought as a witness. The mate's method of checking was bad. Neither party had by any evidence proved any other figure than 595— The NewLine Steamship Company, Limited v. Bryson & Company, 1910 S.C. 409, 47 S.L.R. 346. The case of Spaight v. Farnworth, 1880, 5 Q.B.D. 115, per Bowen, J., at 119, had no application to the present case. The defenders should accordingly be assoilzied from the second conclusion of the summons.

The respondents argued—(1) On the Question of Demurrage.—If a shipowner proved that the ship took longer than usual his onus was discharged, and it is for the charterer to show some special circumstance which prevented him taking delivery sooner. The ordinary custom of discharge at Gran—ton was to put the cargo over the ship's side into railway trucks. As soon as the sling went into the truck the operation of discharging was complete. There was no evidence of a custom to take the cargo to the consignees’ yard. The operation of discharge was alone in question, and anything beyond that was of no moment. The strike was in the defenders' yard, and in no way prevented the discharge proper. Discharging was a joint operation, but the disposing of the cargo after discharge was a matter with which the shipowner had nothing to do, just as the providing of a cargo by bringing it to the ship's side was an operation with which the shipowner had nothing to do. This was so whether there was a time fixed for discharging or not. In the joint operation of discharging proper, the charterer was only bound, where there were no lay-days, to do what was reasonable in the circumstances, and outside that the shipowner took the risk. Further, exceptions in the charter-party applied only to the operations of loading and discharging proper, and were presumed not to apply to anything further. This was clear as regarded loading. If not so clear as regarded discharging, at all events the charterer was not excused unless he could show that circumstances quite beyond his control prevented him taking discharge—Carver on Carriage by Sea (5th ed.), sections 617 and 257. In the “Ardan” Steamship Company v. Andrew Weir & Company ( cit.), and in Gardiner v. Macfarlane, M'Crindell, & Company ( cit.), which were loading cases, it was held that the duty on the charterer to bring the cargo forward was an absolute one, and this reasoning applied directly to the present case. In all the cases cited in favour of the defenders the impediment was owing to the lack of something necessary to the actual discharging— Grant & Company v. Coverdale, Todd, & Company ( cit.); Langham Steamship Company v. Gallacher ( cit.); Granite City Steamship Company, Limited v. Ireland & Son, November 20, 1891, R. 124, 29 S.L.R. 115 per Lord Trayner; Kay v. Field ( cit.); Ford v. Cotesworth ( cit.); Wyllie v. Harrison ( cit.) The preventing cause must be beyond the control of the charterer— Holman v. Harrison, March 16, 1887, 29 S.L.R. 47; Postlethwaite v. Freeland ( cit.); Good v. Isaacs ( cit.); Hick v. Raymond & Reid ( cit.). Delay must not be due to the charterer's failure to do anything he could possibly have done to avoid delay— Hulthen v. Stewart ( cit.). The shipowner did not take the risk of a strike which was not interfering directly with the discharge. The appellants confused the necessity for trucks with the sending of waggons to his yard. The latter operation was something after the actual operation of discharge was complete. The charterers must consider the shipowner's interests. There was no evidence to show they discharged that onus. On the evidence it was plain the charterers made no effort to relieve the ship. They discharged other ships that came in later. The shipowner could not know when he loaded at St Petersburg that the yard was full or that there was a strike at Granton. In The Lyle Steam Shipping Company, Limited v. The Corporation of Cardiff ( cit.), Romer, L.J., at p. 648, said there was no absolute obligation on the charterer to have appliances ready, but that case was not against the respondents, for here waggons might have been available. The same might be said of the cases of Postlethwaite v. Freeland ( cit.); “ Alne Holme” ( cit.); The Sailing Ship “Allerton” Company v. Falk ( cit.); Hudson v. Ede ( cit); and “ The Arne” ( cit.) Even though there was a strike clause there was a duty on the charterer to do everything to avoid delay— Dampskibsselskabet Danmark v. Paulsen & Company ( cit.) In Letricheux & David v. Dunlop & Company ( cit.); and Mein v. Ottman ( cit.) the only question was whether an exception clause applied, and nothing was decided affecting the present case. In Holman v. Harrison ( cit.) as in the present case there was no real shortage of waggons at all. Accordingly apart from the exception clause no defence was open to the charterers. The strike clause, however, had no application to the present case at all. This was a printed form of charter-party and meant to be applicable to all cases of this class of charter-party. The meaning of the clause was “workmen essential to the actual

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operation of discharge”— Langham Steamship Company v. Gallacher ( cit.). That was the commercial meaning of “discharge.” The case of Steven v. Harris (1887, 57 L.J., Q.B. 203) was a loading case, but showed that the strike covered by the exception clause must be one interfering with the actual operation of loading. The strike clause accordingly did not apply, and the Lord Ordinary was right in holding the respondents entitled to demurrage. (2) On the Question of Freight.—On this question regard must be had to the provisions of the charter-party. It showed that it was contemplated by the parties that measurement was to be taken when the cargo was taken into the ship by intaken piled fathoms. It was the duty of both parties to see that such measurement was taken. The pursuers measured according to the usual practice. The charterers on the other hand took up the attitude that no measurement should be taken by them, but that the Lake Ladoga measurement embodied in the bill of lading should stand. In the case of The New Line Steamship Company, Limited v. Bryson & Company ( cit.), the in taken measurement was unreliable and a measurement taken at unloading was preferred. If the intaken measurement had been reliable it would have displaced the later measurement. The charterer here ought to have checked the cargo at intaking, and having failed the onus shifted on to him to prove the ship's measurement wrong— Bain and Others v. The Assets Company, Limited, June 4, 1905, 7 F. (H.L.) 104, 42 S.L.R. 835; Spaight v. Farnworth ( cit.); Merryweather v. Pearson & Company, 1914, 19 Com. Cas. 402. The real question here was not how much cargo was taken on board, but how much freight was due on a proper measurement made at the port of loading. It was contrary to the terms of the charter-party to say the pursuers should have made a measurement at the port of discharge. There was in any case in the documents before the Court formal proof of measurement. The pursuers had proved an actual measurement taken. On the evidence the vessel was fully laden and capable of taking the larger number of props. As to the bill of lading it was only prima facie evidence against the shipowner. Where, as here, intimation was given by the ship that it would not be bound by the bill of lading, statements in it were of no value at all for or against the ship — Merryweather v. Pearson & Company ( cit.); Lebeau v. The General Steam Navigation Company, 1872, L.R. 8 C.P. 88; Jessel v. Bath, 1867, L.R. 2 Ex. 267; Carver on Carriage by Sea (5th ed.), section 581.

At advising—