Or so near thereunto as she might safely get.

and requested the Captain to follow the instructions of such agent as to the final port of destination, and the agent ordered the Captain to go with the vessel to Plymouth. The Captain accordingly proceeded to Plymouth, and there discharged the cargo, having previously consented to go there only on receiving the order from the agent as a clean order and without protest. On this evidence the learned judge left it to the jury to say whether there had been a breach of contract, and whether the plaintiff's agent had given the Captain a clean order to sail to Plymouth, telling the jury that if they thought the Captain was justified in pausing and making a stay until he received further definite orders, and that before breach the plaintiff's agent had given the Captain a clean order to go to Plymouth, the defendant would be entitled to a verdict. The jury having found a verdict for the defendant,-Held, that the questions left were proper questions for the jury to determine, and that there had been no misdirection.1

It has long been established that where a vessel is bound to a particular port, "or so near thereto as she can safely get," this must be taken to mean some place "within the ambit" of the port, though she may not be able to enter it," and it has been held that the stipulation to proceed to such a place, or "so near thereto as the vessel can safely get,"

1 Pole v. Cetcovich, 30 L. J. C. P. 102.

2 Metcalfe v. The Britannia Iron Works Co., L.R. 2 Q. B. D. 423; 46 L. J. Q. B. 413,

necessarily comprehends her safety also in coming away when loaded, and justifies the vessel in crossing the bar at the harbour entrance with what cargo she can carry in doing so, and lying to outside for the rest of her lading.' But it was held that a vessel which was bound to Galatz, or so near thereto as she could safely get, was not justified by this provision in proceeding to Odessa instead, notwithstanding the water on the bar at the mouth of the Danube had been too low for many weeks to allow her to cross.2

A ship chartered to take a cargo from Alexandria to a "safe port" in the United Kingdom or the Continent, "or as near thereto as she can safely get, and lie afloat at all times of the tide, and deliver the same and so end the voyage," was ordered to Glasgow, and on her way to that port she brought up off the "Tail of the Bank," an open channel in the river Clyde off Greenock, twenty-two miles below Glasgow. The water at Glasgow was not such as to enable the ship to lie afloat there at ebbtide; the shippers therefore lightened her at the 'Tail of the Bank' of part of her cargo. This is customary in such cases in the Clyde (the words "according to the custom of the port" in the printed form of the charter-party coming before the words "and deliver the same," had been struck out before the instrument was signed.) The ship, after being

1 Shield v. Wilkins, 19 L. J. Ex. 238.

Schilizzi v. Derry, 24 L. J. Q. B. 196.

lightened, was ordered up to Glasgow to deliver the residue of her cargo there. The master took her up under protest, and discharged the rest of the cargo, and then counting his lay days as beginning at the 'Tail of the Bank,' he claimed demurrage, and raised an action in the Sheriff's Court, which was finally determined by the First Division of the Court of Session. There it was held, that there was no right to demurrage, as the Tail of the Bank' was not to be deemed the port of discharge within the meaning of the charter-party. The Lord President, in delivering judgment, chiefly relied on the reasonableness of what had been done as the kind of performance that was contemplated by the parties to such an instrument, and indicated his opinion that, if the lightening had extended to half the cargo (a fortiori if more,) his decision would have been the other way.'

It cannot be laid down as an inflexible rule that when a ship has got as near to the port as she can get, and the only impediment to proceeding further is over-draught, the master is under all circumstances entitled to consider the voyage at an end. He is bound to use all reasonable means to reach the port. The words "as near thereto as she can safely get" must receive a reasonable, not a literal, application; the over-draught may be such, and the cargo so easily dealt with, as that the surplus may be removed and the ship sufficiently lightened without exposing her to extra risk or the owner to any pre

Hillstrom . Gibson, 8 Sc. Sess. Ca. (3rd) 463; Ford . Cotesworth, L. R. 5 Q. B. 514,

judice, and without substantially breaking the continuity of the voyage; and in such a case, if the consignee is at hand to receive the surplus cargo and so relieve the over-draught, it would be the duty of the master to lighten the ship and proceed to the port. This is the principle laid down in the case of Hillstrom v. Gibson.1

So, where by a charter-party it was agreed that a ship should load a full cargo and proceed to a safe port within specified limits, " or so near thereto as she might safely get," the port to be named on signing bills of lading for delivery of the cargo at Koogerpolden in Holland, a port which is situated some distance from the sea up a canal, to which port the ship had been ordered. In the margin of the bill of lading was inserted the rate of freight and the words "and all other conditions as per charter-party." The ship duly arrived at Nieuwediep, which is at the mouth of the canal, and it was impossible that she could proceed further towards K., because her draught was 19 feet, and the depth of the canal about fifteen feet only. The plaintiffs, before the ship's arrival at N., had written to ask the defendants what course they proposed to adopt, alleging that N. was as near to K. as the ship could safely get. The defendants in reply alleged that the plaintiff's had undertaken to deliver at K. as a safe port and that they would not interfere. They declined to make any arrangements for taking delivery of any part of the cargo at N. Thereupon the master, on

18 Sc. Sess. Ca. (3rd) 453.

arriving at N., unloaded so much of the cargo about one-third of the whole as would admit of the ship passing into the canal, and sent that portion by lighters to K., proceeding thither with the rest in the ship. The action was brought by the shipowners to recover pilotage, harbour dues and other expenses of going into port, and demurrage. The Court was of opinion that the bills of lading had not the effect of altering the contract so as to bind the owners, as against the charterers, to deliver at the port of K., and that the master had no authority so to alter the contract if he had intended to do so, but that he had signed the bills of lading in the form presented to him in compliance with, and in order to carry out the terms of the charter-party. The only effect which could be given to the bills of lading as between these parties was, to preclude the plaintiff's from objecting that K. was a safe port, and to bind the plaintiff's to the same extent as and no further than if K. had been named in the charter-party as the port of discharge; and it was held, that under the circumstances, the master was justified in considering the voyage to be at an end at the mouth of the canal, and in treating it as the place of discharge, and that the plaintiffs were therefore entitled to recover.1

In Hayton v. Irwin, a vessel was to deliver at a safe port, "or so near thereto as she can safely get." She was ordered to Hamburg, and proceeded thither;

Capper v. Wallace, L. R. 5 Q. B. D. 163; 49 L. J. Q. B. 350. 2 L. R. 5 C. P. D. 130.