[† 303] (Ss.)1. What it is. +CHAPTER III. OF DEMURRAGE; AND HEREIN, 2. How to be computed. 3. Construction of Stipulations respecting it. 4. How regulated by usage, in the absence of express Stipula tions. 5. When it ceases. 6. Remarks on Cases relating to it. 1. In charter-parties, clauses are usually inserted, purporting that it is covenanted and agreed between the parties, that a specified number of days shall be allowed for loading and unloading, and that it shall be lawful for the freighter to detain the vessel for those purposes, a further specified time, on payment of a daily sum. These clauses constitute a contract on the part of the freighter, that he will not detain the ship for those purposes beyond the two designated periods; and if he does so detain her, he is liable to an action on the contract in the form adapted to the nature of the instrument. (1) When goods are shipped on board a general ship, words are also often introduced into the margin of the bill of lading, importing that they must be taken out of the ship within a certain time, or that in default, a certain sum per diem should be paid for every day afterwards. In such cases it has been decided, that the person claiming and receiving the goods under the bill of lading is answerable for this payment. *The freighter, in the former case, and in the latter, the person who claims and receives the goods under the bill of (1) Where a certain number of lay days are stipulated by the charter-party for unloading the cargo, a question has arisen, whether the consignee is bound to receive the goods as soon as the master is ready to deliver them, or has a right to the whole period; and it has been decided, that he has the whole period, and if loss occurs in the intermediate time after his refusal to receive the goods on the application of the master, the freight is not earned. La Combe v. Waln, 4 Binn. R. 299; and see Robertson v. Bethune, 3 John. R. 342. See post, 311, note; Burrill v. Cleman, 17 John. 72. > *lading, is liable to pay for every day beyond the time agreed upon, the sum specified in the charter-party or bill of lading. This delay, and the payment agreed upon, [† 304] for it, are called demurrage, and although, if a ship be improperly detained by the freighter or consignee of goods, the owner may have a special action for the damage resulting to him for such detention (a); demurrage, properly so called, arises out of the terms of some contract thus expressly entered into between the ship-owner and freighter, or thus stipulated in the bill of lading by the master or owners, and adopted (b) and assumed by the consignee. Accordingly, it has been held, that the master of a ship who had undertaken, by a bill of lading, to deliver goods to the consignee "on payment of freight," cannot maintain an action against the consignee on an implied contract to pay demurrage (c); an inconvenience which may be easily obviated by the insertion of a few words in the margin of the bill of lading, notifying that it is a condition of the contract to carry and deliver the goods; that the consignee shall clear them in a certain number of days, after the ship's arrival, or pay so much per day for demurrage. 2. The word "days" used alone in a clause for demurrage for unlading in the river Thames, is said to be understood of working days only, and not to comprehend Sundays or holidays by the usage among merchants in London (d), but it is much better to mention working or running days expressly, according to the intention of the parties. If there be no usage to the contrary, and no express exclusion of them, Sundays will be computed in the calculation (e). In the absence of express stipulation on the subject, they are to be reckoned from the time of the ship's arrival at the usual place of discharge in the port, and not at the port, although for the purposes of navigation some of her cargo may be discharged at the entrance (f). If the usual place of discharge be a dock, they will be calculated from the period of her arrival in the dock, and not of her coming to her *berth (g). And where a collier which reached Gravesend on *the 9th of March, was detained there by the harbor-master until the 20th, when she received an order from him. [305] to proceed to the Pool, the ordinary place of dis - charge for such vessels,-it was held that the days of demurrage were to be reckoned from her arrival there (h). It is competent, however, for the parties to the contract, to fix a particular place for the discharge of the cargo, other than the usual place of discharge at the destined port, or to provide, with a view to probable contingencies, that the vessel shall discharge at one place or another, according to circumstances, or as may seem best in the discretion of the master. In the former case, the lay days will, of course, run from the ship's arrival at the place so fixed upon; in the latter, they will run from the ship's arrival at the place selected by the master, in the exercise of the discretion intrusted to him, although some part of the cargo may not be discharged there. The plaintiffs, owners of the ship Lusitania (i), and the master, agreed with the defendants to convey a cargo to Oporto, and if the master should think it possible to enter the port without risk from the batteries, to discharge the cargo there; but if not, the master bound himself to proceed off the castle of the Foz, or to some other point near the bar, where the vessel could lay in safety, and there discharge into boats, which the freighters bound themselves to send alongside the vessel; to be paid freight in full for the voyage the sum of 4751.; or if the vessel could enter Oporto, discharge and reload there, then in lieu thereof, the sum of 300Z. Twenty-five working days to be allowed the said merchants for unloading the cargo, lay days to commence when the ship was off the castle of the Foz, or other point where she was to be discharged, continue whilst there, cease if blown off the coast by stress of weather, and recommence when again at anchor at her station; 4. per day demurrage for every day over and above the said lay days. The ship sailed from London on the voyage mentioned in the charter-party, and arrived off the harbor of Oporto on the 3rd of June. The harbor of Oporto is about two or three miles up the river Douro. When the ship so arrived, the Miguelites were in possession of batteries on each side of the entrance of that river, and it was not possible for her to enter the port, without great risk and danger. She was ac[306] cordingly brought up in the roads, off the castle of *the Foz, just beyond the range of the Miguelite (h) Kell v. Anderson, 10 M. & W. 498. (i) Gibbons v. Buisson, 1 Bing. N. C. 233; 1 Scott, 133. See also Balley v. De la Arroyave, 7 Ad. & Ell. 919, and Jackson v. Galloway, ante, p. 245. * batteries. The ship remained at anchor in the roads, and delivered part of the cargo from time to time, as it was sent for by the consignee, until the 14th of August, when strong winds and squally weather obliged the captain to slip his cable, for the preservation of his ship. He brought her up again to the same anchorage on the next morning, and remained there until the 18th of August, when, having sustained some damage from the impact of another ship, he, to avoid further danger, stood out to sea, with about one-eighth of her cargo undischarged. The gale continuing, the Lusitania could not return to her former anchorage until the 25th of August. The Miguelites had then abandoned the batteries, and the river was open; but there was not sufficient wind and tide to enable the ship to cross the bar. The next day, the Lusitania went up the river, and came to anchor in the harbor of Oporto, where the residue of the cargo was delivered to the order of the consignee. On these facts it was contended for the defendants, that the port of discharge was Oporto, and that the lay days must commence from the time of her arrival there. The plaintiffs claimed demurrage from the expiration of twenty-five days after the arrival of the ship off the castle of the Foz, where, as they urged, she was substantially discharged. "It is contended," said Chief Justice Tindall, "that the vessel was to discharge at Oporto, and that the lay days were not to commence till she was at the place of discharge, but they are not so limited by the language of the charter-party, for they are to commence at the castle of the Foz or other point where the vessel is to be discharged: to cease if the vessel be blown off the coast, and commence again on her regaining *her station." 3. When a ship is detained beyond the time thus limited and ascertained, the daily rate of demurrage mentioned in the charter-party or bill of lading, will in general be the measure of the damages to be paid, but it is not the absolute or necessary measure; more or less may be payable as justice may acquire, regard being had to the expense and loss incurred by the owner, and the amount must be settled by a jury, if the parties cannot agree (f). And when the time is thus expressly ascertained and limited by the terms of the contract, the merchant will be liable to an action †for [† 307] damages if the thing be not done within the time, although this may not be attributable to any fault or omission on his part; for he has engaged that it shall be done. If the (f) Moorsom v. Bell, 2 Campb. 616. merchant is the author of the delay, by which expenses are occasioned, those expenses will fall upon him (7). (1) Many vessels are now obliged by law to unlade at particular docks in the river Thames; and in many cases, the law allows the importer to warehouse his goods at such docks for a certain time, under security given for the payment of the import duties, instead of removing them into his own custody, and discharging the duties immediately; which is often a matter of great convenience to the importer, and has become the usual practice. It has sometimes happened from the great resort of vessels to these docks at particular seasons, that considerable delay has taken place in the unloading, especially when the goods are to be warehoused; and it has been questioned, whether the merchant should answer for such delay. And according to the principle above laid down, it has been twice held that he must answer, by reason of the terms of his contract. On two occasions some stress was laid on the circumstance of warehousing the goods, it being understood that if the importer had chosen to take them from the docks immediately, the delay would not have happened (m). On another occasion this circumstance does not seem to have been noticed (n). The general rule appears to be, that if the merchant covenants to do a particular act, which it becomes impracticable for him to do, he must answer for his default, unless the act be or become contrary to the laws of his country, as a trading with an enemy. *The case of Randall v. Lynch (o), is a leading case upon this point. It was an action on a charter-party for a voyage to Lanceretto and back to London, in which it was covenanted that the vessel, after taking in her lading, should proceed direct to the port of London, and upon arrival at the London Docks, and after regular report at the Custom-house, should discharge the said cargo, and there end and complete the voyage; that forty days should be allowed for unloading, loading, and again unloading the cargo; and that the freight er might further detain the vessel at his own option for [308] ten working days, upon paying 51. per day † demurrage. The breach alleged was, that the freighter had de*tained the vessel in the London Docks for thirty-five days (1) The Angerona, Marks, 1 Dods. Adm. Rep. 382. (m) Struck v. Tenant, cor. Mansfield, Ch. J., Sit. at Guildhall after Trin. Term, 1806, and Lee D. Yates, 3 Taunt. 387. (n) Randall v. Lynch, post. (0) 2 Campb. 356, and 12 East, 179. (1) See post, 408-412, and notes; Duffie v. Hayes, 15 John. 327; Robertson v. Bethune, 3 John. 342; Galloway v. Jackson, 3 Scott, N. R. 754. > |