Scottish Court of Session Decisions

Messrs Th. Fronsdal & Company, Bergen, owners of the s.s. “Hansa,” pursuers, raised an action against Messrs William Alexander & Sons, timber merchants, Ayr, defenders, for payment of the sum of £490, being the amount of demurrage incurred through the detention of the “Hansa” at the port of Ayr beyond the stipulated number of lay-days.

The defenders pleaded, inter alia—“3. Any delay in discharging having been caused by the failure of the steamer to give delivery at the rate provided for in the charter-party, the defenders should be assoilzied.”

The facts of the case appear from the opinion of the Lord Ordinary ( Hunter), who on 7th February 1918, after a proof, decerned against the defenders for the sum sued for.

Opinion.—“In this action the owners of the s.s. ‘Hansa’ sue the charterers of that vessel for payment of £490 as demurrage for the detention of the ship at the port of Ayr for seven days beyond the lay-days allowed for discharge of the cargo.

Under a charter-party between the pursuers and the defenders, dated 5th October 1915, it was, inter alia, agreed that the ‘Hansa’ should proceed to Archangel, there load a cargo of wood, and thereafter proceed to Ayr and deliver the same.

In terms of the charter-party it was provided that the cargo was to be discharged ‘at the rate of not less than 100 stds. per day counting from steamer's arrival at the respective ports, and notice of readiness

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given in writing during business hours, and permission to load granted whether berth available or not, always provided steamer can load and discharge at this rate, … but according to the custom of the respective ports.’

The cargo of the ship consisted of 625.090 standards of deals and 5486 standards of ends, totalling 630.576 standards.

As discharge at a daily rate enables the number of lay-days to be fixed as soon as the quantity of the cargo is known, and is equivalent to fixing the number of lay-days beforehand (Lord Sumner in Rowtor Steamship Company, Limited v. Love & Stewart, Limited, 1916, 2 A.C. 527, at p. 535, 1916 S.C. (H.L.) 199, 53 S.L.R. 706), the stipulated time for discharging amounted to 6 1 3 days.

The ‘Hansa’ arrived at Ayr upon Wednesday, 17th November 1915. Notice of readiness to discharge was duly given. The steamer was ready to discharge at 10 a.m., and discharging actually commenced at 3 p.m. on 17th November 1915, but was not completed until 6 p.m. on Thursday 2nd December 1915.

The cause of delay in discharge is proved to have been shortage of labour. There was not a sufficient number of labourers available either to enable the ship to perform her part of the discharge, which admittedly was to dump the cargo on to the quay, or to allow of the defenders taking more expeditious delivery. No fault for this state of matters is attributed to the pursuers or to those for whom they are responsible.

It is well settled that where a merchant has undertaken to discharge a ship within a fixed number of days he is liable in demurrage for any delay of the ship beyond that period, unless such delay is attributable to the fault of the shipowner, or those for whom he is responsible. The risk of delay arising from causes for which neither of the contracting parties is responsible is with the merchant. This rule has been applied in a number of English cases— Budgett & Company v. Binnington & Company, [1891] 1 QB 35; Thiis v. Byers, 1876, 1 QBD 244; Porteous v. Watney, 1878, 3 Q.B.D. 227; and Straker v. Kidd & Company, 1878, 3 Q.B.D. 223.

It is not necessary for me to examine these cases in detail. Lord Salvesen in Gimle v. Garland & Roger, 1917, 2 S.L.T. 254, had to consider the application of the principle involved in them where delay arose from shortage of labour which impeded the joint operation of discharge. I agree with the conclusion at which he arrived and with the reasons given by him for arriving at that conclusion.

The defenders, however, contended that the words ‘provided that the steamer can discharge’ imply a modification of the otherwise absolute obligation imposed upon them. In Northfield Steamship Company v. Compagnie L'Union des Gaz, [1912] 1 KB 434, the Master of the Rolls, dealing with the words ‘provided the steamer can deliver,’ said ‘They only deal with the rate of discharge of the cargo when once the discharge has begun, and are concerned with what I may call the mechanical facilities of the steamer for delivery.’ L. J. Farwell in the same case said the words ‘refer to the structural capacity and fittings of the vessel, not to her position in the harbour or to the supply of labour from the shore available for the consignees.’ I am unable to see that the circumstance that the word in the present case is ‘discharge’ and not ‘deliver’ affords any ground for distinguishing between the two clauses. I think what was said by the learned Judges in the passages I have quoted affords a correct interpretation of the clause in the present charter-party. It was admitted that the mechanical fittings of the ‘Hansa’ were such as to admit of the vessel under normal circumstances being discharged within the period fixed by the charter-party. I therefore repel the defences and grant decree for the amount sued for.”

The defenders reclaimed, and argued—The case must be ruled by the law of contract, and as there was no failure to perform any contractual obligation the defenders were not liable in demurrage. The English rule of law which in cases where the number of lay-days was fixed imposed an absolute liability on the charterer even in the case of circumstances outwith his control, had never been explicitly accepted in Scotland until the case of Gimle v. Garland & Roger, 1917, 2 S.L.T. 254. Historically the English rule of law was an excrescence superimposed on the original law of England in the course of recent decisions, limiting the shipowner's liability to cases of negligence, and thereby importing the law of delict into the law of contract— Armitage v. Insole, 1850, 14 Q.B. (A. & E.) 728; Thiis v. Byers, 1876, 1 QBD 244; Porteous v. Watney, 1878, 3 Q.B.D. 227; Straker v. Kidd & Company, 1878, 3 Q.B.D. 223; Budgett & Company v. Binnington & Company, [1891] 1 QB 35; Carver on Carriage by Sea, p. 786, section 611. In any event these cases did no more than lay down a certain canon of construction, notwithstanding which the Court must always construe the particularcontract of affreightment— Rickinson, Sons, & Company v. Scottish Co-operative Wholesale Society, Limited, 1918, 1 S.L.T. 329, per Lord Mackenzie at p. 336. The pursuers could not enforce performance of the stipulation in their favour without showing that they had fulfilled their part of the contract— Johnston v. Robertson, 1861, 23 D. 646. But further, esto that the general rule wasas con tended for, it was displaced by the particular words of the charter-party in the present case, which was intended to safeguard the defenders in the contingency which actually had arisen, namely, the temporary shortage of labour at the port of discharge. The case of Northfield Steamship Company v. Compagnie l'Union des Gaz, [1912] 1 KB 434, founded on by the Lord Ordinary, was distinguishable on the facts and the law applicable thereto, and there was no other case with a similar clause to the present one.

Argued for the pursuers—The defenders could only succeed if they proved fault on the part of the pursuers, and they had

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failed to do so— Gimle v. Garland & Roger ( cit.); New Steam Tug Company v. M'Clew, 1869, 7 Macph. 733, 6 S.L.R. 460; Hansen v. Donaldson, 1874, 1 R. 1066, 11 S.L.R. 590, per the Lord Justice-Clerk and Lord Ormidale; Holman v. Peruvian Nitrate Company, 1878, 5 R. 657, 15 S.L.R. 349, per Lord President Inglis and Lord Shand; Whites v. Steamship “ Winchester” Company, 1886, 13 R. 524, per Lord Shand at p. 535, 23 S.L.R. 342; Abchurch Steamship Company, Limited v. Stinnes, 1911 S.C. 1010, per Lord President Dunedin at p. 1014, 48 S.L.R. 865; Dampskibsselskabet Danmark v. Poulsen & Company, 1913 S.C. 1043, per Lord Dundas at p. 1048, 50 S.L.R 843; Rowtor Steamship Company, Limited v. Love & Stewart, Limited, [1916], 2 A.C. 527, per Lord Sumner at p. 535, 1916 S.C. (H.L.) 199, at p. 201, 53 S.L.R. 706; Carver on Carriage by Sea, p. 788, section 612; Bell's Prin., section 432; 1 Bell's Comm. (M'Laren's ed.), p. 622. In the absence of fault on the part of the shipowner an absolute obligation rested upon the charterer to discharge the ship's cargo within the stipulated number of lay-days, and this undertaking he had failed to perform. The law of England on this matter as laid down by Carver in Carriage by Sea had been accepted in Scotland, as was clearly demonstrated by the cases cited. The words founded on in the charter-party could not excuse the defenders as they did not apply to shortage of labour, but referred solely to the mechanical appliances of the steamer. Neither the ship's crew nor the ship's appliances for unloading were to blame for the delay in the unloading operations. The pursuers could not be held responsible for the shortage of labour due to the prevailing war conditions. The evidence had proved that the steamer could be unloaded at the rate of one hundred standards per day. There being no special contract here there was noreason why the ordinary and accepted law of contract should not apply— Mackay v. Dick & Stevenson, 1881, 6 A.C. 251, per Lord Blackburn at p. 263, 8 R. (H.L.) 37, at p. 40, 18 S.L.R. 387.

At advising—