ceive the cargo, the shipment of which was to be at the shipper's expense, are misfortunes and casualties which fall upon the freighter (g). He might have protected himself by express stipulation. He might have limited his engagement to pay demurrage to cases of wilful or negligent detention. For delays occasioned by the wrongful act of others, he has his remedy against them; but unless they be caused by the shipowner himself, the freighter or consignee must pay demurrage according to his contract (h).

It is no answer to this claim for the consignee to allege that he did not receive notice of the arrival of the ship (i) within the time stipulated by the bill of lading for the discharge of the cargo, for it is his duty to inquire for and watch the ship's arrival; or that he did not receive the bill of lading in time, and that the master insisted on its being produced, or on an indemnity, for the master had a right so to insist for his own protection (k); but if the delay was occasioned by the refusal of the owner to allow the ship to be unloaded (7), or by his neglect, or even inability, from unavoidable accident, to obtain the necessary clearances for sailing (which it is his duty to obtain), then he, and not the freighter, is the cause of the delay, and must bear the loss resulting from it (m), unless indeed he omitted to apply for them at the request of the freighter or consignee (n).

The owner has no claim of this sort for a delay occasioned by an hostile occupation of the destined port, although, after such delay, it may be found expedient entirely to abandon the voyage, and thereby the whole employment of the ship becomes unprofitable (o).

Where by a charter-party seventy days were to be allowed a ship, which was to touch and take in goods at several ports, for loading, discharging, and reloading, it was held that the word reloading limited the discharge to a time before reloading, and that therefore the limit of days did not apply to the time taken up in unloading the cargo at the end of the voyage (p).

But when a charter-party for a voyage from Genoa, where the ship was, to Monte Video, and thence to Callao and the Chincha Islands, and back to a port of the United Kingdom, after specifying certain running and lay days, contained this proviso, "should the vessel be unnecessarily detained at any other period of the voyage, such detention to be paid for by the party delinquent to the party observant at a specified rate of demurrage"-it was held

(g) Barker v. Hodgson, 3 M. & S. 270. (h) Beech v. Balleras, 29 L. J. Q. B. 261.

(i) Harman v. Clarke, 4 Campb. 159; Harman v. Mant, 4 Camph. 234. (k) Jesson v. Solly, 4 Taunt. 52; see ante, p. 224.

(1) Benson v. Blunt, 1 Gale & D. 449. See Erichsen v. Blunt, 3 H. & N. 894; 28 L. J. Ex. 95, where it was held by the Court of Exchequer Chamber, reversing the decision of the Court of Exchequer, that the

charterers who refused to take to the cargo on the ground that it had not been shipped by their factors abroad, were liable for demurrage.

(m) Barrett v. Dutton, 4 Campb. 333; and see Kearon v. Pearson, 7 H. & N. 386; 31 L. J. Ex. 1, as to a stipulation for the loading of the cargo with the usual despatch. (n) Furnell v. Thomas, 5 Bing. 188. (0) Liddard v. Lopez, 10 East, 526. (p) Sweeting v. Darthez, 23 L. J. C. P. 131.

that the words "other period of the voyage" did not include Genoa, and that a detention there was not within that clause (q).

4. How Demurrage is regulated by Usage, in the absence of Express Stipulations.

For the eventual hardship or unprofitableness of the engagement into which the merchant or freighter has entered, he has himself alone to blame; the law in all these cases does but enforce the performance of his own contract. He might have bound himself by terms less stringent, and capable of a more liberal interpretation in his favour; or, by avoiding all express stipulations on the subject, he might have allowed the law, in case of dispute, to determine, with reference to the course of the particular trade, or the usages of the particular port, what would, under all the circumstances of the case, be reasonable and just.

Thus, where in a charter-party it was covenanted that the freighter, the defendant, should unload the ship within the usual and accustomed time, it appeared that the ship Margaret entered the London Docks with her homeward cargo on the 25th of August, and was reported the following day; on the 31st of the same month, her cargo, consisting of wines, was bonded by the defendant, and he was ready to have received it if it could have been unloaded, but on account of the crowded state of the London Docks at this time the ship could not get a berth till the 20th of October, and was not fully discharged till the 26th of that month. If the duties had been immediately paid upon the wines, they might have been landed in a much shorter time; but the superintendent of the London Docks said he had never, since the bonding system was introduced, known a cargo of wines brought by a ship so large as the Margaret landed and delivered, but that such cargoes had always been bonded. It was contended that the duties ought to have been immediately paid—that the freighter was liable for the detention of the ship beyond the time when she might have been discharged; and the case of Randall v. Lynch was cited as an authority for that position. But Lord Ellenborough said, "In that case a specific period of forty days had been fixed by the charterparty for loading and unloading the cargo. The stipulation in the present case is, that the freighter shall be allowed the usual and customary time to unload the ship in her port of discharge. The question therefore is, What is the usual and customary time for a ship to unload a cargo of wines in the port of London? The answer seems to be, when the ship gets a berth by rotation, and the wines can be discharged into the bonded warehouses. The wines might have been landed sooner by an immediate payment of the duties; but since the

(g) Valente v. Gibbs, 6 C. B. (N. S.) 270. See also Crow v. Falk, 8 Q. B. 467. Bruce v. Nicolopulo, 24 L. J. Ex. 321.

T

bonding system was introduced this has ceased to be the usual and customary mode of unloading a cargo" (c).

Thus, again, in the case of Burmester v. Hodson (d), the defendant was the consignce of a cargo of brandy from Charente to London, by the ship Athalia, of which the plaintiff was the master. The bill of lading contained no stipulation for demurrage, or for unloading the brandy in any specified time. The ship entered the London Docks on the 19th of August, 1809, but as the docks were extremely crowded, and the brandy was to be bonded, she was not able to begin to unload until the 11th of October, and did not discharge the whole of her cargo until the 19th of the same month, making a period of sixtythree days from the time she entered. Evidence was given of an invariable practice to bond cargoes, and that when the docks were not over-crowded, twenty or twenty-three days were a sufficient space of time for unloading. The plaintiff insisted that he was entitled to a compensation in the nature of demurrage, from the time the ship might have been unloaded till she was completely discharged.

But Mansfield, C. J., said, "This case cannot be distinguished from Rogers v. Forrester. Here, the law could only raise an implied promise to do what was there stipulated for by an express covenantnamely, to discharge the ship in the usual and customary time for unloading such a cargo. That has been rightly held to be the time within which a vessel can be unloaded in her turn into the bonded warehouses. Such time has not been exceeded by the defendant. If the brandies were to be bonded, they could not be unloaded sooner; and the defendant seems to have been as anxious to receive as the plaintiff was to deliver them."

5. When Demurrage ceases.

The payment of demurrage, stipulated to be made while a ship is waiting for convoy, ceases as soon as the convoy is ready to depart; and such payment, stipulated to be made while a ship is waiting to receive a cargo, ceases when the ship is fully laden, and the necessary clearances are obtained, although the ship may in either case happen to be further detained by adverse winds or tempestuous weather, or by ice (e); and if the ship has once set sail and departed, but is afterwards driven back into port, the claim of demurrage is not thereby revived (ƒ).

By a charter-party, the owner covenanted that the ship should take a cargo at a port, and proceed with the first convoy that should sail for England fourteen working days after she was ready to load; and the merchant covenanted to load and despatch her within fourteen days after notice that she was ready to load, with liberty, however, to

(c) Rogers v. Forrester, 2 Campb. 483. (d) 2 Campb. 488.

(e) Lannoy v. Werry, 2 Bro. P. C. 60.

See further as to waiting for convoy, Marshall v. De la Torre, 1 Esp. 367.

(f) Jamieson v. Laurie, 6 Bro. P. C. p. 472, 2nd ed.

detain her fifteen running days after the expiration of the fourteen, paying four guineas per day demurrage. The first convoy sailed after the fourteen days were expired, but before the termination of the additional fifteen days. No other convoy sailed until nearly two months after the first. Under these circumstances, the owner sued the merchant for the demurrage, and also for compensation for the detention of the vessel beyond the fifteen days; but it was held that the merchant was not liable for the latter, and that the parties were in the same condition at the end of the fifteen days as they would otherwise have been in at the end of fourteen days (g).

6. Remarks on Cases relating to Demurrage.

The decisions in Randall v. Lynch, Leer v. Yates, and the cases which followed upon them, have been the subject of much doubt and controversy among merchants and lawyers. That the consignee of goods brought by a general ship should be liable for the delay of those for whose diligence he has not stipulated-over whom he has no control-between whom and himself there is no connexion but that which the contract of the shipowner with them has created, does certainly appear a case of peculiar hardship. Why should one man pay for the neglect of another? Because, it is answered, he has contracted to do so. But the question is, Whether it be not a condition of the contract into which he has entered, to clear the goods within the time specified in the charter-party or bill of lading, that the master should be ready to deliver them, and whether that condition can be considered as performed, while the goods, without any fault of the merchant, continue inaccessible?

Lord Tenterden, on one occasion (h), adverting to these decisions, expressed himself as follows:-"I have great difficulty in saying, that when the consignee has had no opportunity of taking his goods within the time stipulated, he is bound by the contract to pay for not doing so; he cannot, I think, in that case, be said to detain the vessel. On the other hand, I do not agree to the proposition on the part of the defendant, that he has necessarily the stipulated time, to be computed from the period when the discharge of his own goods can be commenced; I think, after that period he must use reasonable despatch. The true principle seems to be this: If the goods of the particular consignee are not ready for discharge at the time of the ship's arrival, he must have a reasonable time for removing them after they are so; if in such a case, using reasonable despatch, he cannot clear them within the stipulated period from the ship's being ready to discharge her cargo generally, he will not be liable for demurrage till the expiration of such a reasonable time; but when it is expired, he will be liable, though the stipulated period, if computed

(g) Connor v. Smythe, 5 Taunt. 654; (h) Rogers v. Hunter, 1 Mo. & M. 63. 1 Mars. 276.

from the time when the discharge of his own goods could have commenced, is not at an end."

In a subsequent case, Lord Tenterden said, "I am certainly of opinion, that if a consignee cannot get his goods because some other person's goods prevent him, he is not liable for the delay of the vessel" (i).

As, however, the decisions thus questioned are still referred to in the works of writers of great experience (k) for the rule of mercantile practice, it has been thought advisable to submit them to the attention of the reader.

It was decided in a recent case by the Court of Exchequer, that the master of a chartered ship has authority to settle a claim arising at a foreign port for detention beyond the period for which the rate of demurrage is stipulated (1).

(i) Dobson v. Droop, 1 Mo. & M. 441. (k) See M'Culloch's Dictionary of Commerce, tit. Demurrage. See also a "Treatise on the Office and Practice of a Notary of England, and on the Law Merchant," by

Richard Brooke, Solicitor and Notary:
Saunders and Benning (1839), p. 162.

(1) Alexander v. Dowie, 1 H. & N. 152; 25 L. J. Ex. 281.