Scottish Court of Session Decisions

Rickinson, Sons, & Company, managing owners of the s.s. “Arachne,” pursuers, brought an action against the Scottish Co-operative Wholesale Society, Limited, defenders, concluding for decree for £2625 in name of demurrage.

The pursuers pleaded, inter alia—“1. The defenders as charterers of the said vessel, et separatim as holders and endorsees of the said bills of lading, having failed to take delivery of the cargo in terms of the said charter-party and bills of lading as fast

Page: 413↓

as the vessel could deliver, are liable to the pursuers in demurrage at the charter rate, and the pursuers are accordingly entitled to decree against them for the sum sued for. 2. Separatim, the custom of the Port of Leith being expressly excluded from the contract of affreightment, the defenders were bound to take delivery of the cargo continuously without regard to weather conditions or the customary modes in operation at Leith of discharging grain cargoes, and they are liable to the pursuers for all loss and damage sustained by them in consequence of the defenders insisting on taking delivery according to the custom of the Port of Leith.”

The defenders pleaded—“The defenders having taken delivery of the cargo with reasonable dispatch, and in terms of the charter-party and bills of lading, should be assoilzied from the conclusions of the summons. 2. Separatim, any delay in taking delivery having been due to causes outwith the control of the defenders, they should be assoilzied from the conclusions of the summons.”

On 9th November 1917 the Lord Ordinary ( Salvesen) for Lord Dewar, after a proof, pronounced this interlocutor—“Finds in fact (1) That the steamship ‘Arachne’ arrived in Leith on the evening of Friday, the 26th November 1915, and was berthed on the west side of the island in the Edinburgh Dock opposite C Shed; that she was ready to commence delivery of her cargo at 9 a.m. on Saturday, 27th November, and that this was timeously intimated to the defenders: (2) That no work was done at all by the defenders on the 27th, 29th, and 30th November, but a commencement was made by them on 1st December, when 276 quarters were discharged by two tackles: (3) That on the 2nd, 3rd, and 4th December the defenders worked four tackles: (4) That on the 6th, 10th, and 11th December no work was done on account of the wet weather, and that on the other days, with the above exceptions, eight tackles were worked by the defenders till the 24th of December, when the balance of the cargo was discharged from four tackles: (5) That a reasonable rate of discharge was 250 quarters per tackle per day of eight hours: (6) That Saturdays fell to be counted as half-days and wet days fell to be excluded: (7) That the total amount of cargo discharged was 26,588 quarters: (8) That 12 tackles could have been worked by the pursuers, which at the rate of 250 quarters per tackle would have discharged 3000 quarters per day: (9) That at this rate the whole cargo would have been discharged in nine working days: (10) That after allowing for each Saturday a half-day, and counting out one wet day which fell within the period, the discharge would, if the cargo had been received at the rate of 3000 quarters per full working day of eight hours, have been completed by the defenders on 9th December: and (11) That in consequence of the breach of said contract by the defenders the ‘Arachne’ was thus detained by the defenders for 15 days beyond the period within which the cargo should have been discharged and received: Finds in law that the defenders are liable to the pursuers in demurrage for 15 days at the rate of £125 per day in terms of the bill of lading, amounting to £1875 sterling, for which sum decerns against the defenders, with interest as concluded for,” &c.

Opinion, from which the facts of the case appear:—“In this action the pursuers sue for payment of £2625 in name of demurrage, the claim being based on an alleged detention of their steamship ‘Arachne’ at Leith. The action is directed against the defenders as holders of the bill of lading.

“The defenders were both the charterers and the holders of the bill of lading of the cargo of wheat, which they loaded on board the ‘Arachne’ at Montreal. As, however, there was a provision in the charter-party that it should be superseded on bills of lading being signed in the form and subject to the conditions stated therein, and as these conditions were admittedly complied with, the action is based solely on the contract contained in the bills of lading. The main provision with regard to discharge is in the following terms:—‘Cargo to be received at destination as fast as steamer can deliver during ordinary working hours, any custom of the port to the contrary notwithstanding.’ There are, however, two further stipulations in the printed conditions, which although they do not appear to be quite consistent, may also have some bearing on the obligation undertaken by the defenders as consignees of the cargo. One of them is embodied in article 3 of the printed conditions, and is to the effect that the steamer may commence discharging immediately on arrival, and discharge continuously at all such hours as the Custom House authorities may give permission to the ship to work, any custom of the port to the contrary notwithstanding, provided that all extra expense incurred in working at night or on holidays shall be borne by the party ordering such work. But this seems to be qualified by a later clause to the effect that receivers of the cargo are in no case obliged to take delivery at night, without their consent. As the defenders were neither asked nor consented to receive delivery at night or on Sundays or holidays, all that remains of these clauses seems to be the provision that the steamer might commence discharging immediately on arrival and discharge continuously during ordinary working hours—the reciprocal obligation of the consignees to take delivery on arrival and continuously thereafter being implied.

The ‘Arachne’ arrived in Leith on the evening of Friday 26th November 1915 after office hours. She was berthed on the west side of the island in the Edinburgh Dock and opposite No. C shed, and on the morning of the 27th the defenders were advised that she was in dock and ready to be discharged at 9 o'clock. No work at all was done on the 27th nor on the 29th and 30th, but a commencement was made by the defenders on the 1st of December, when 276 qrs. were discharged at 2 tackles. On the following three days 4 tackles were used in discharging. On the 6th no work was done

Page: 414↓

owing to wet weather, and the same happened on the 10th and 11th. With these exceptions 8 tackles were worked on ordinary working days until the 24th of December, when the balance of the cargo was discharged from 4 tackles. The total amount of the cargo discharged was 26,588 qrs. Assuming that there had been no impediment to rapid discharge of the cargo it would have been possible by the use of reasonable diligence to have discharged the vessel simultaneously with 20 tackles, the output of which is 250 qrs. per day for an average working day of 8 hours. 5000 qrs. could in such circumstances have been lifted from the ship's hold daily, and the vessel's discharge been completed in a little over 5 days or say 5 1 2 days. It is on this basis that the sum sued for is arrived at. In other words the pursuers' maximum claim is the same as it would have been if it had been expressly stipulated that the cargo should be discharged in 5 1 2 days of 8 hours each or at the average rate of 5000 qrs. per working day.

I have no hesitation in rejecting this construction of the contract between the parties as to the discharge of the vessel. No fixed days were provided in the bill of lading nor was any average rate of discharge mentioned. The obligation of the defenders was to receive the cargo at Leith as fast as the steamer could discharge during ordinary working hours, and it has been long settled that such an obligation must be construed with reference to the circumstances existing at the time when the discharge takes place and not with reference to what could be done under ordinary circumstances. Thus, to take a simple case, if there had been a strike in the docks at the time when the ship arrived and was ready to unload, affecting both the labourers employed by the ship and those employed by the receivers, the lay-days would not have commenced to run as against the defenders here until the strike was ended. In other words, the contract does not impose an absolute obligation on the receivers to have the ship unloaded within a given time irrespective of whether the ship was able to give delivery owing to circumstances beyond the control of the owners. The latest case to which I was referred on the subject is one of high authority as it is a judgment of the House of Lords ( Hulthen v. Stewart, [1903] AC 389). The pursuers, however, while recognising the law as laid down in the case above referred to, contend that it has no application to the present case, because the ship was in fact able and willing to discharge from 20 tackles from the morning of Saturday the 27th November. In other words, that under the circumstances that existed from that time onwards there was no obstacle to the ship delivering the cargo at the rate of 5000 qrs. a day, and that there was therefore an absolute obligation on the charterers to receive the cargo as fast as it could be delivered. The parties are however at utter variance on this question of fact, and it is necessary that I should state the conclusions at which I have arrived after a careful perusal of the proof following on the arguments of counsel. I shall embody my conclusions in narrative form.

On 27th November and during the whole period of the ‘Arachne's' discharge the port of Leith was in a very congested state as regards shipping. This was in part due to the fact that Bo'ness and Grangemouth had been closed by orders of the Admiralty and the traffic of these two ports had been in great part diverted to Leith. In part it was due to the fact that more grain cargoes arrive at one time towards the end of the year after the harvests of North America have been reaped and made ready for shipment than in the spring or summer months. The congestion was also largely due to shortage of labour. Conscription had not yet been introduced but a considerable number of the best men who earned their livelihood in the docks of Leith had joined the army, and as there was a great demand for labour generally the amount of casual labour obtainable was greatly diminished. The shortage, however, was more severely felt amongst the men normally employed by the receivers of grain cargoes than amongst those employed by stevedores acting for the owners of ships. The customary method in Leith of discharging a grain cargo in bulk is for the men employed by the ship to fill the grain into buckets in the hold, which buckets are emptied into a standard vessel of which the weigher has charge, and by whom the weight is accurately taken. When weighed the grain is filled into sacks which are carried on the backs of porters either to a cart or railway waggon or emptied into a bulk waggon or put temporarily into a shed. As the bags sometimes weigh over two cwts. only a strong man can carry such a weight ashore. The merchant employs lifters (that is, men who lift the bag) and porters on whose backs the bags are carried, and these latter men belong to a special class and generally work in companies. Casual labourers being generally of inferior physique are not fitted to do this heavy work of carrying the bags ashore, but the work of filling the buckets in the hold of the ship and of trimming the cargo towards the hatchways underneath which the buckets are filled is work that requires no great physical strength and is ordinarily performed by casual labourers. These men go in crowds to the dock gates in the morning and are engaged there by the stevedores according to their requirements. In the case of the ‘Arachne’ the stevedores employed were Saddler & Company, of which firm the witness Mr Saddler is the leading if not the only partner. His evidence is to the effect that if the merchant had been able to take delivery at 20 tackles he would have been able to secure sufficient labour to perform the ship's part of the obligation of unloading at these 20 tackles. Mr Cairns, who is a very candid and apparently fair witness for the pursuers, puts the case rather lower, and thinks there would have been no difficulty in manning 16 tackles, and other witnesses give evidence to the same effect. On the other hand, the defenders' witnesses said that they did not believe the ship could man anything like as many tackles as 16

Page: 415↓

or indeed more than 8 tackles, but they agree with the pursuers' witnesses that the shortage of labour was more acute amongst the class of men who are customarily employed in Leith to take delivery of grain cargoes. Moreover, it is the fact that the supply of ship's men by the stevedores was regulated throughout by the number of tackles at which the defenders were willing to receive, and that in no case did the stevedores find any difficulty in securing the necessary labour to man as many tackles as the defenders were willing to receive at, and this notwithstanding that in the later stages of the discharge more men are required to perform the ship's part of the joint, operation of unloading than are required at the commencement. When the discharge commences only three men employed by the ship are required per tackle; whereas when the cargo has been in great part removed and needs to be trimmed towards the hatchways at least two and possibly three additional men are necessary to keep the buckets at each tackle going. Having in view the nature of the evidence it is a jury question how many tackles the ship's stevedores could have manned, and I think that in reaching the conclusion that they could have manned 12 tackles throughout the discharge—if the receivers had been able to take delivery at so many—I am not doing the defenders any injustice. Messrs Saddler were at the time unloading a number of other ships, some of which are said to have had much longer lay-days than were required for their discharge even in the congested condition of the port at the time, and the evidence of Mr Saddler is that he could have diverted men from these ships to the ‘Arachne,’ and would have done so had the receivers been willing to take delivery as fast as he was able to give it. He says, in addition, that other casual labour was available, but that of course he engaged no more men than he could actually employ, and that the number engaged depended therefore on the number of tackles at which the receivers were willing to take delivery.

Assuming then that 12 tackles could have been manned by the ship's stevedores, Are the lay-days in the present case to be ascertained by reference to the amount of grain that could reasonably have been raised from the holds and delivered on to the deck by means of 12 fully manned tackles? If so the steamer fell to be discharged at the rate of 3000 qrs. per working day of 8 hours, and the discharge ought to have been completed in 9 days from the 29th November counting the Saturday as a half-day, for the discharge was only to go on during ordinary working hours, and on Saturdays these are exactly one-half of a full working day. The question, however, would still have to be solved as to whether days in which no work was done because of wet weather were to be counted as working days. This I think again is a question purely on the evidence. The reason why according to the ordinary custom of the port of Leith the discharging of a grain ship ceases during wet weather is to avoid injury to the cargo. In the present contract, however, the custom of the port was excluded, and had I therefore been satisfied on the evidence that the stevedores' men were willing to work in rain I should not have regarded the occurrence of wet days as modifying the defenders' obligation under the contract. According to the fair import of the evidence, however, I have come to the conclusion that at the time in question when work was abundant, and was paid for at a rate which enabled the dock labourers to make as much in three or four days as they would in normal times have made in a week, stevedores' men would also have declined to work. At that time they could afford to consider their own comfort more than the requirements of the traffic, and even at the high rate of wages that was then paid I think they would have declined to work. I hold therefore in fact that the ship was not in a position to deliver cargo on wet days even if the receivers had been willing to take it.

The defenders' construction of their obligation is that they were only bound to take delivery with such dispatch as was consistent with their engagements to other ships and proportionate to the number of carts and bulk waggons which they in fact had at their disposal. During the last days of November the defenders were in point of fact receiving grain from other two vessels—the s.s. ‘Tafna’ and the s.s. ‘Hurona.’ Sometime later they had also to receive a large parcel which had arrived by the s.s. ‘Cairndhu.’ All the men that they were in the habit of employing as porters were engaged on the two former vessels, which had arrived earlier than the ‘Arachne,’ and were therefore in their view entitled to a preference over her. So also were their carts and their bulk waggons in which in the ordinary course of business they were in the habit of taking away cargoes from the ship's side. This is the explanation of the fact that no work of any kind was done on the ‘Arachne’ on Saturday 27th, Monday 29th, and Tuesday 30th November. Fortunately the ‘Tafna’ was unloaded entirely by the elevator from and after the 1st December, but she had had 4 tackles employed on her on each of the three preceding working days. Similarly the ‘Hurona’ was working with 4 tackles on the 27th, with six men on the 29th, and with eight on the 30th of November. On the 1st of December the ‘Hurona’ was working with 12 tackles, and on the 2nd with 6 and on the 4th with 4. It is a significant fact that it was not until the ‘Tafna’ went to the elevator that any tackles were worked on the ‘Arachne’; and it was not until the ‘Hurona’ had been completely discharged that delivery was taken at 8 tackes of the cargo of the ‘Arachne.’ Up to that time the porters whom the defenders could have obtained for the discharge of the ‘Arachne’ were being employed by them at this other work, and the same is true of the carts and bulk waggons in which they usually receive grain cargoes as they come from the ship's side. The alternative of receiving the cargo and putting it into the shed opposite the berth where the ‘Arachne’ was lying was only available to a limited extent because of the shed being partly filled

Page: 416↓

with other goods which had been discharged from ships with which the defenders had no concern and which had not been removed by the owners owing to the congested condition of the port.

Except on one day when large steel pans supplied by the stevedores were used in discharging the cargo the defenders conducted the discharge in the manner which is customary at Leith and which I have already described. If the cargo had not been weighed before it passed from the ship's side one obstacle to rapid delivery would have been removed, and as the contract expressly provides that all customs of the port are to be excluded, it follows that the defenders are not entitled to maintain that the customary mode of discharge was the only one which they were bound to adopt. Discharge by means of pans is common at the neighbouring port of Granton, and when properly conducted is almost as expeditious as discharge by filling into sacks and having the sacks carried ashore. Where bulk waggons are available I see no reason why it should not be as fast as the ordinary method, but any mode which has not been commonly employed in a port is bound to be slower at first than what the men are used to. The advantage of employing the steel pans is that the porters can be dispensed with and their place taken by ordinary labourers.

Now, these being the facts, I pass to consider the construction of the clause on which the pursuers rely. There is only one reported case where the clause was so far identical with the one that I have now to consider— Crown Steamship Company, Limited v. Leitch, 1908 S.C. 506, 45 S.L.R. 402. I agree with the opinion of Lord Low delivered in that case that there is no ambiguity in the clause, ‘the consignee,’ he says, ‘is taken bound to receive the goods as fast as they can be delivered by the use of the ship's tackles, and that obligation is not to be limited or minimised by any custom of the port. The measure of the consignees’ obligation is the rate at which the ship is able to deliver the cargo under the circumstances that actually existed.’ (sic.) I do not see how language could have been expressed more plainly. No doubt it is assumed in such cases that the shipowner will not employ a larger staff of men than is ordinarily used in discharging a cargo so as to throw a heavier responsibility on the consignees, but there is no suggestion of that kind here. So far as the ship was concerned the tackles were manned in the ordinary way by no more men than the stevedore found necessary consistently with economic working. But for the authorities to which I was referred I should have had no doubt that this was the meaning of the contract. I cannot see how, according to its terms, difficulties which the consignee may have in securing shed accommodation, or an adequate number of carts or waggons to remove the cargo, or a sufficient number of porters to carry it ashore, qualify the obligation there undertaken. It does not seem to me that a provision that the cargo is to be received as fast as the steamer can deliver is to be construed as if it meant as fast as the consignee using reasonable dispatch in the existing circumstances is able to receive, especially when all customs of the port to the contrary are expressly excluded. If I thought that the House of Lords in the case of Hulthen v. Stewart had so decided of course I should be bound to follow it, but having read carefully the opinions both in the Court of Appeal and in the House of Lords I am unable to reach this conclusion.

All that was actually decided was that a provision in a charter-party that ‘the cargo is to be discharged with customary steamship dispatch as fast as the steamer can deliver during the ordinary working hours of the port of discharge, but according to the custom of the port, is not tantamount to fixing a definite number of days or hours during which the discharge is to be completed. To create such a liability the days or hours must be specified in plain terms.’ Now I have no difficulty in accepting that judgment on the facts which were before the Court. The learned judge of first instance (Phillimore, J.) held that the true meaning of the charter-party was not that the ship was to discharge in the number of hours in which she could ordinarily discharge, and on the facts he held ‘that with the appliances that were available at the time the ship could not have discharged her cargo more quickly than she in fact did.’ It is also noteworthy that the clause there expressly embodied the custom of the port. The shipowners in appealing did not challenge the findings in fact, but simply raised the question of law which is thus stated by Collins, M.R.—‘The point therefore comes to this, whether the clause that the ship is to be discharged as fast as the steamer can deliver is to be taken as importing an obligation to discharge in five days, which is the time the vessel would take in being discharged if nothing came in the way of the discharge.’ There was no alternative case presented by the shipowner, such as there is here—that taking into account the actual conditions of the port the shipowner was able and willing to deliver at a given rate—and it is not clear that such a case could have been presented. I rather gather that it could not, because the custom of the port being to discharge into lighters or on to the quay, it appears that the first method was not available at the berth which the vessel might otherwise have got, because no lighters could be obtained, and the second method was impeded because the quay was blocked with other cargo, both causes of delay being entirely beyond the control of the consignee. The amount of delay when the vessel actually got to her berth was very slight; she got into her berth on October 22nd and did not complete her discharge till October 29th so that she used at most seven days, two of which were half days, for a discharge which in normal circumstances would take at least five days. The only argument which was dealt with in the House of Lords was that ‘unconditional liability to take delivery within a fixed limit of time was imposed on the

Page: 417↓

consignee by the clause there considered.’ Their decision which negatived this contention I have given effect to in construing the clause on which the pursuers found.

I admit, however, that there are certain expressions of opinion which taken apart from the context at first sight seem to favour the defenders' contention—thus Phillimore, J., said ‘that the obligation on the defendants was to exercise all reasonable means to procure for the vessel an opportunity to discharge as quickly as she could.’ That of course was not the whole obligation on the defendants, but it was the only one that needed to be considered in that case, for the main complaint was that the ship had not been unloaded by means of lighters in the West India Dock, where she could have got a berth earlier than the quay berth at which she actually discharged if lighters had been available. Lord Macnaghten, after stating that the words used in Hulthen's case did not point to a definite period of time, said, ‘What they do point to is the discharge of the cargo with the utmost dispatch practicable having regard to the custom of the port, the facilities for delivery possessed by the particular vessel under contract of affreightment, and all other circumstances in existence at the time not being circumstances brought about by the person whose duty it is to take delivery or circumstances within his control.’ The assumption of the case was that the consignees had done all that they reasonably could to give discharge of the vessel, and the fact seems to have been that the delay was caused by circumstances which were entirely beyond their control. When carefully considered and analysed it appears to me that the decision in Hulthen's case is not a decision to the effect that a clause providing that cargo is to be received as fast as steamer can deliver is to be universally construed as meaning as fast as the receivers can reasonably take delivery. I am accordingly of opinion that demurrage falls to be paid on the footing that the ship was able and willing to work 12 tackles, and that the obligation of the receiver was to take delivery at 12 tackles even if he was unable to find a sufficient number of men for the purpose.

In the event of it being held that I have wrongly construed the clause with regard to the discharge of the cargo, and that it imposes no higher obligation on the defenders than to discharge the ship with such reasonable dispatch as was practicable in existing circumstances, I should still hold that the pursuers were entitled to demurrage, for the circumstances which largely caused or contributed to the delay were, to use Lord Macnaghten's language, ‘brought about by the person whose duty it was to take delivery or were circumstances within his control. I have already adverted to the fact that during part of the time that the ‘Arachne’ was waiting to be discharged the defenders were unloading or partly unloading other three grain ships. Mr Drummond, their cargo superintendent, was asked ‘Did you sacrifice the “Arachne” until the “Tafna” and the “Hurona” were completed'? answered ‘There was nothing else to be done. I was taking the sensible course. I was taking them in the order of their being ready for me as cargo superintendent.’ A little later he says ‘The defenders must have known that they (these cargoes) would probably come to Leith Docks about that time.’ And Mr Stewart, their commercial manager, gives the following evidence—‘(Q) In point of fact weren't you in December 1915 discharging in Leith exceptionally large quantities of wheat?—(A) We were. (Q) More than your ordinary appliances of bulk waggons and lorries were really designed for handling?—(A) You can put it that way. Much more than we ever did before.’ Now I think that this was a matter which was within the control of the defenders, and that they are not entitled to say, having entered into engagements which fell to be discharged at the same time and which they could not have met even in normal times with fairness to the vessels chartered, that they were prevented from performing their duties as consignees by circumstances over which they had no control. Just as the charterer is bound to make arrangements for having a cargo loaded when a vessel arrives ( Ardan s.s. Company, Limited, 1905, 7 F. (H.L.) 126, 42 S.L.R. 851), so it appears to me that the consignee must make arrangements which will enable him to give such dispatch as he contracts to give. If notwithstanding that he has made such arrangements delay is caused by unforeseen circumstances he will not be liable, but he cannot plead his own want of foresight in justification of delay that might have been avoided had proper arrangements been made. Now applying this view of the defenders' obligations to the circumstances of the present case I think it is plain that the defenders could have had at least 8 tackles working during the whole period from Saturday the 27th of November in the discharging of the ‘Arachne’ if it had not been that they had to turn their men, carts, and bulk waggons in the first instance to the discharge of the ‘Tafna’ and ‘Hurona,’ and later to the ‘Cairndhu.’ That statement shows that on the 27th of November the defenders had men and appliances sufficient for 8 tackles—4 on the ‘Tafna’ and 4 on the ‘Hurona’; on the 29th they had men available for 10 tackles, and on the 30th for 12 between these two vessels. On the 1st of December they had 2 tackles working on the ‘Arachne’ and they had 12 on the ‘Hurona’; on the 2nd they had 10, and on the 3rd 8 tackles between the two ships. At a later period of the discharge they were engaged with the ‘Cairndhu,’ but I do not think there is evidence as to the actual number of tackles worked by the defenders, who were only consignees of part of the cargo. I think, however, it is fair to conclude, and is in accordance with the bulk of the evidence, that they could throughout have worked 8 tackles on the ‘Arachne’ but for their other engagements. The average rate of discharge at one tackle is 250 qrs., and indeed on some days that quantity was considerably exceeded. The discharge ought therefore on this view to

Page: 418↓

have proceeded at a rate of not less than 2000 qrs. per day of eight hours, counting the Saturday as a half day, and excluding wet days for the reasons I have already given.”

Argued for the defenders (reclaimers)—Bills of lading as far as the clauses relating to discharge were concerned were of two kinds—(1) where expressly the receiver was bound to discharge absolutely, e.g., where so many lay-days were contracted for, or where discharge was to be continuous. In such a case the obligation upon the receiver was absolute, and he was liable in demurrage though he had done all he could; (2) where there was no such express obligation. In such a case the whole facts would be inquired into to see if the receiver had done his best. Questions had arisen as to which category various expressions found in bills of lading fell into, and until comparatively recently all the usual expressions had been dealt with except the words in the present case, viz., as fast as steamer could deliver. Such words fell into the second category and did not import an absolute obligation to take delivery, and the receiver would be liable in demurrage only if upon an inquiry into the whole facts it was shown that he had failed to avail himself of available means for discharge—Carver, Carriage by Sea (5th ed), section 614; Hulthen v. Stewart, [1902] 2 KB 199; [1903] AC 389, per Lord Halsbury, L.C., at p. 390; Lord Macnaghten, at p. 392; Lord Davey, at p. 394. The decision in that case would have been applied in Crown Shipping Company v. Leitch, 1908 S.C. 506, per Lord Low, at p. 514, 45 S.L.R. 402, had it been a demurrage case; Temple, Thomson, & Clarke v. Runnalls, 1902, 18 T.L.R. 18 and 822, per Collins, M.R., at p. 822. Hulthen's case ( cit.) followed upon and laid down the same principles as were laid down in Good & Company v. Isaacs, [1892] 2 QB 555; Lyle Shipping Company v. Corporation of Cardiff, [1900] 2 QB 638; Hick v. Rodocanachi, [1891] 2 QB 626, per Lindley, L.J., at p. 638, [1893] AC 22; Wyllie v. Harrison & Company, 1885, 13 R. 92, 23 S. L.R. 62, where the clause was identical with the clause here. Hulthen's case ( cit.) had been regarded as a reiteration of the already existing law—The “ Arne,” [1904] P 154, and the “ Kingsland,” [1911] P 17, per Sir Samuel Evans at p. 22; Rowtor s.s. Company v. Love & Stewart, 1916 S.C. (H.L.), 199, per Lord Sumner at p. 201, 53 S. L. R. 706; Postlethwaite v. Freeland, [1880] 5 A.C. 599, per Lord Selborne at p. 608. The obligation on a shipper to have a cargo ready to load was absolute, but that was all the length it went—Carver ( cit.), sections 618 and 619; Postlethwaite's case ( cit.), per Lord Blackburn at p. 619 (foot). On the evidence it was proved that the defenders had done all they could and the delay was caused by circumstances beyond their control. Further, it was not proved that the defenders could have taken labour from other ships which arrived before the “Arachne” and used it to discharge her. But in any event they were not bound to do so, and were not liable in demurrage for having failed to do so. To hold the contrary would be unreasonable and impracticable. The consignee could not tell when the ship would arrive, for there was a latitude of time for loading, consequently it was impossible for him to time arrivals to suit the labour available. Ashcroft v. Crow Orchard Colliery Company, 1874, 9 Q.B. 540, was distinguished. Charterers' engagements could not be made a ground of fault— The Barque Quilpué, Limited v. Brown, [1904] 2 KB 264. Harrowing v. Dupré, 1902, 7 Com. Cas. 157, per Bigham, J., at p. 163; Postlethwaite's case ( cit.), per Lord Blackburn at p. 622; Tapscott v. Balfour, 1872, L.P. 8, C.P. 46; Coulthurst v. Sweet, 1866, L.R. 1, C.P. 649, were referred to.

Argued for the pursuers (respondents)—The clause in question admitted of consideration of the circumstances affecting the ship only. That was the plain meaning of the words. The circumstances as they affected the receiver could not be taken into consideration. In all such cases the circumstances as they affected the receiver had only been taken into consideration when there was a provision that discharge was to be as customary or with customary dispatch. The effect of such reference to custom was equivalent to an obligation on the receiver to take delivery with reasonable diligence—Carver ( cit.), sections 180 and 181. If custom was not excluded then reasonable diligence was enough— Postlethwaite's case ( cit.), per Lord Selborne, L.C., at p. 608 and 610, Lord Hatherly at p. 612, and Lord Blackburn, at pp. 613 and 616, (1879) 4 Ex. Div. 155, at p. 157, and per Brett, J., at p. 164. The moment custom was introduced into the contract the circumstances affecting the ship and the receiver fell to be taken into consideration— Wyllie's case ( cit.), per Lord Justice-Clerk Moncreiff at p. 96; Good's case ( cit.), per Lord Herschell at p. 561. Custom might be implied into the contract, in which case the same principles applied—The “ Jaederen,” 1892, P. 351; Hicks case ( cit.), per Lord Herschell, p. 31, and Lord Watson, p. 33. In Temple's case custom was regarded as equivalent to reasonable diligence—per Bigham, J., at p. 19, and Collins, M.R., at p. 822. In Hulthen's case ( cit.) custom was not excluded and reasonable diligence was held sufficient— [1902] 2 KB 199, at 204, per Collins, M.R., and per Lord Macnaghten, [1903] A.C. at p. 392, and 6 Com. Cas., per Phillimore, J., at p. 70. The same rule was applied in Rodenacker v. May & Hassell, Limited, 1901, 6 Com. Cas. 37, per Matthew, J., at p. 38. In the Lyle Shipping Company's case ( cit.) custom was expressly imported into the contract. The “ Arne” ( cit.) was decided upon specialties. But where, as here, custom was excluded, the obligation on the receiver was absolute. The exclusion of custom meant the delivery was complete by passing the goods over the ship's rail— Brenda s. s. Company v. Green, [1900] 1 QB 518. The absolute nature of the receiver's obligation had been sustained in a case undistinguishable from the present— Maclay v. Spillers & Baker, 1901, 6 Com. Cas. 217, per Sir A. L. Smith, M.R., at p. 218, reversing Matthew, J., 16 T.L.R. 401; Carver ( cit.), section 614; Crown s.s. Company's

Page: 419↓

case ( cit.), per the Lord Justice-Clerk (Kingsburgh) at p. 511, per Lord Low at p. 512 et seq., Lord Ardwall at p. 516, and Lord Stormonth-Darling at p. 518; the “ Kingsland” ( cit.); Rowtor s.s. Company ( cit.), per Lord Sumner, at p. 200; Dampskibselskabet Svendborg v. Love & Stewart, Limited, 1915 S.C. 543, per Lord Dundas at p. 551, 52 S.L.R. 456. In any event the defenders had not used all reasonable diligence. Further, they were in fault in not having taken men from the other ships; the difficulty which had arisen was self-imposed. Ashcroft's case ( cit.) applied. Harrowing's case ( cit.) and Tapscott's case ( cit.) were distinguished.

At advising—