FREDERICKS clearly of opinion that this is not a tenement within the meaning of the 46th section. v. HOWIE. POLLOCK, C. B., concurred. Determination of justices reversed. 1862. June 5. [ 388] [ *389 ] BASTIFELL v. LLOYD (1). (1 H. & C. 388-395; S. C. 31 L. J. Ex. 413; 10 W. R. 721.) By charter-party the plaintiff and defendant agreed that the plaintiff's ship, Bebec, should proceed to Llanelly, and take on board a cargo of culm, and being so loaded should "therewith proceed with all convenient speed to Cole's Wharf, Rochester, or so near thereto as she might safely get, and deliver the same on being paid freight, &c. The regular turn to be allowed for loading, and fifty tons per working day, if required, for delivery at Rochester, and demurrage over and above the said days at the rate of 4l. per day." The ship arrived with her cargo at Rochester on the 24th October and was moored at the Buoys, about 500 yards from and opposite to Cole's Wharf. On the 25th October the master gave the defendant's agent notice that the vessel was ready to discharge her cargo, and he desired the master to come alongside Cole's Wharf. At that time there was not sufficient water for the vessel to come alongside the wharf, and the agent refused to send lighters to receive part of the cargo, so as to lighten the vessel and enable her to come alongside the wharf. The state of the tide did not allow the vessel to be removed to Cole's Wharf until the 4th November, and on the following day she commenced discharging her cargo. In an action for demurrage: Held, that the master was bound to take the vessel alongside Cole's Wharf, unless prevented by some impediment which endangered her safety, and as the inability to bring the vessel alongside the wharf was occasioned by the ordinary course of navigation the lay days did not commence until the vessel arrived there. DECLARATION on a charter by the defendant of the plaintiff's ship, called the Bebec, to take on board *at Llanelly a cargo of culm and proceed therewith to Rochester. Breach: that the defendant kept the ship on demurrage ten days, and thereby became liable to pay the plaintiff 407. Plea. That the defendant did not keep the ship on demurrage. Issue thereon. At the trial, before Bramwell, B., at the London sittings after last Easter Term, it appeared that the plaintiff and defendant agreed by charter-party (so far as material to the present case) that the plaintiff's ship Bebec "should with all convenient speed sail and proceed to New Dock or Channell, Llanelly, and take on board from the agent or wharf of the defendant a full and complete cargo of culm not exceeding what she could reasonably stow and carry over and above her tackle, &c., and being so loaded should therewith proceed with all convenient speed to Mr. Cole's Wharf, Rochester, or (1) Distinguished, Nelson v. Dahl (1879-81) 12 Ch. D. 568, 593; 6 App. Cas. 38, 51, 60, 50 L. J. Ch. 411, 44 L. T. 381. Referred to, The Alhambra (1880) 5 P. D. 256, 264, 49 L. J. Adm. 73 (revd. 6 P. Div. so near thereto as she might 68, 50 L. J. Adm. 36); Horsley v. Price (1883) 11 Q. B. D. 244, 247, 52 L. J. Q. B. 603, 49 L. T. 101; Allen v. Coltart (1883) 11 Q. B. D. 782, 786, 52 L. J. Q. B. 686, 48 L. T. 944. v. LLOYD. safely get, and deliver the same on being paid freight at the BASTIFELL rate of 8s. 9d. per ton delivered, and one guinea gratuity to the master. The freight to be paid in cash on safe delivery of the cargo. The regular turn to be allowed the defendant for loading the ship at Llanelly, and fifty tons per working day, if required, for delivery at Rochester, and demurrage over and above the said days at the rate of 41. 4s. per day," &c. The ship proceeded to Llanelly, and was there loaded with 420 tons of culm. On the 17th of October the ship sailed for Rochester, where she arrived on the 24th of October, and the master moored her at the buoys, about 500 yards from and opposite to Cole's Wharf. On the 25th of October the master reported to the defendant's agent at Rochester the arrival of the vessel and his readiness to discharge the cargo. The defendant's agent requested the master to come alongside Cole's Wharf. The master stated *that there was not sufficient water for his vessel alongside the wharf, but that if the defendant's agent would send lighters to receive a portion of the cargo, he would, when the vessel was lightened, bring her close to the wharf. This the defendant's agent refused to do. The state of the tide. was such that the vessel could not get alongside Cole's Wharf until the 4th of November. On the following day she commenced discharging her cargo, and completed her unloading on the 14th. It was contended, on behalf of the plaintiff, that when the vessel was moored at the buoys on the 24th of October she was as near Cole's Wharf as she could then safely get, and that the defendant's agent ought to have commenced unloading her on the 25th: that the time for the delivery of the cargo, at the rate of fifty tons per working day, expired on the 4th of November, and that the defendant was liable for ten days' demurrage, from the 5th to the 14th of November. It was submitted, on behalf of the defendant, that he was not bound to unload the vessel until she was alongside Cole's Wharf; and therefore he was not liable for demurrage. The learned Judge was of opinion that the defendant was not bound to unload the vessel until she was alongside Cole's Wharf; and he left the following questions to the jury: First: Could the vessel have got alongside Cole's Wharf on the 24th of October? The jury found that she could not. Secondly: Was there any unloading of the vessel on the 14th of November? The jury found that there was. Thirdly: Was it the fault of the plaintiff or the defendant's agent that the unloading did not begin on the 4th of November? The jury found that the defendant might have commenced unloading on that day. R.R.-VOL. CXXX. 37 [ *390 ] BASTIFELL v. LLOYD. [391] [392] [ *393] The learned Judge then directed a verdict for the plaintiff for 41. 4s. the amount of one day's demurrage, reserving leave to him to move to increase the damages to 401., if the Court should be of opinion that, upon the facts, the plaintiff was entitled to a verdict for the full amount of demurrage claimed. Edward James, in the present Term, obtained a rule nisi accordingly, against which G. Denman and Prentice now showed cause: * * That The question is when did the demurrage days commence. depends on whether the defendant was bound to unload the cargo when the vessel arrived at the buoys, or was entitled to wait until she was alongside Cole's Wharf. Parker v. Winlow (1) is an express authority that the defendant was not bound to unload the vessel until she was alongside the wharf. Here the vessel was to proceed to Cole's Wharf, "or so near thereto as she might safely get," but she did not arrive so near the wharf as she might safely get, if by waiting for high water she might with safety have got nearer. A mere temporary obstruction. does not determine the obligation to reach the place of discharge: Schillizzi v. Derry (2); and the master was bound to wait until there was sufficient water to enable him to get alongside Cole's Wharf. It was the duty of the plaintiff, before he entered into the contract, to acquaint himself with the nature of the place of discharge. * * Edward James and Dowdeswell, in support of the rule: When the vessel was moored at the buoys she was as near Cole's Wharf as she could safely get; and the lay days commenced on the 25th of October, when the defendant's agent had notice that the vessel was ready to unload. In Parker v. Winlow (1) the contract was to proceed to a tidal harbour, and therefore the ship-owner must be presumed to have entered into the contract with knowledge that in the ordinary course of navigation the vessel might be prevented from *reaching its place of discharge. There Lord CAMPBELL said, "If, when the ship got fixed on the mud bank, the master had given notice that he was ready to discharge there, it might have been open to him to show that it was the duty of the other party to take the cargo there; and if he could have shown such to be their duty, the lay days would have commenced." Here the plaintiff fulfilled his contract when the vessel arrived so near Cole's Wharf as the depth of water would permit. (POLLOCK, C.B.: According to that argument, if the tide (1) 110 R. R. 904 (7 El. & Bl. (2) 99 R. R. 802 (4 El. & Bl. 873). changed whilst the vessel was proceeding to the wharf, the BASTIFELL master would not be bound to go any nearer.) Suppose the vessel could only have got to the wharf when there or so near (POLLOCK, C. B.: Suppose it had only been necessary to stop at the buoys for one tide, would that have exonerated the plaintiff from his obligation to go alongside the wharf.) It would be a question for the jury, what was a reasonable time to wait for high water. POLLOCK, C. B.: I am of opinion that the rule ought to be discharged. The plaintiff only asks to increase the damages to 401.; therefore, if there be any question which ought to have been left to the jury with respect to what was a reasonable time to wait for high water, the rule must nevertheless be discharged, because it cannot be made absolute for a new trial. It appears to me that the meaning of this charter-party *is that the vessel shall proceed to the wharf, that is, go alongside of it, and there discharge her cargo, and it is manifest that the object was to avoid the expense of lighters. That in some measure raises the question what was a reasonable time to wait for a sufficient depth of water to get alongside the wharf. That, however, is a question of fact for the jury, and this rule cannot be made absolute unless we see very clearly that the defendant was bound to send lighters to unload the vessel. It is conceded that if the vessel had been obliged to wait for one tide, that would not have got rid of the obligation to go alongside the wharf, but it is contended that it is unreasonable to wait for several days. It seems to me, however, that there is no distinction in principle. This is a contract to get to the wharf, if in the ordinary course of navigation it could be reached. BRAMWELL, B.: I am of the same opinion. At the trial I was struck with the hardship of making the ship-owner responsible for the condition of a particular wharf; but the charterer is responsible for the condition of the particular ship, and it was by the conjoint condition (1) 62 R. R. 632 (10 M. & W. 331). v. LLOYD. [ *394 ] LLOYD. BASTIFELL of the wharf and ship that the latter was prevented from getting alongside the wharf. The usual depth of the water at the wharf was a matter which either of the parties might have ascertained for himself. If there is any question of fact which ought to have been left to the jury, none was proposed; and, assuming it to be a question for the Court, I cannot help thinking that the defendant is right when he says that the vessel was bound to go alongside the wharf. As pointed out by the LORD CHIEF BARON, the object of the charterer was to save the expense of lighterage. Suppose the ship-owner found that he could not get alongside the wharf for two or three days, when the tide would rise high, he would clearly have been bound to wait, since he could then safely get there. He has *undertaken to go alongside Cole's Wharf, unless the want of safety renders it necessary that he should stop short of that place. It is admitted that by waiting a short time, he not only could, but did, get there. It might be different if there were only one or two tides in the year which would enable the vessel to reach the wharf, but it is not necessary to say what the master ought to do in that case. As it is, convenience and common sense are in favour of the defendant. [ *395] CHANNELL, B.: I am also of opinion that the rule ought to be discharged. No doubt, there are extreme cases which show that the contention on the part of the ship-owner might not be unreasonable, but we cannot decide with reference to those cases. This is a contract between two parties which must receive a reasonable construction, and the prevailing rule is, that the words of a contract must be construed most strongly against the contractor. The words, "or so near thereto as she might safely get," are to be taken essentially as the words of the ship-owner. Parker v. Winlow is an authority in favour of the defendant. In that case there were two points. The first has no application to this case, but the second is identical with it. No doubt there was no express mention in the charter-party of a particular wharf, but what was done between the parties showed that they intended that the wharf which was afterwards designated should be the wharf at which the vessel should actually arrive. Here the question is whether the vessel arrived alongside Cole's Wharf, within the meaning of the charter-party. I think it did not, and that the navigation was a risk which the ship-owner took upon himself. Rule discharged. |