but her draught prevented her getting further up the river than Stade. The charterer refused to take delivery of any part of the cargo at Stade; and in answer to an action for the cost incurred in lightering up to Hamburg so much as was necessarily discharged, he alleged a custom of the port of Hamburg, by which he was not bound to take delivery any where but at that place, and was not liable for any such expenses. It was held by the Court of Appeal, that the alleged custom was inconsistent with the contract; for it required the ship to deliver at Hamburg whether she could get there or not. The charterer was bound to take delivery at Stade until the vessel was sufficiently lightened to enable her to proceed. The Where the cause has been physical, it has often been decided that if the obstacle was only temporary, it was not, however complete for the time, sufficient to enable the shipowner to insist on the substituted or alternative place of delivery. term always used has been that the obstruction must be permanent, and the provision in a charter-party that a ship is to be brought to a particular place, " or as near thereto as she may safely get," refers to the ship being prevented from getting to her primary destination by any permanent obstacle other than an accident of navigation, not merely by an obstacle endangering her safety and if the master brings his ship as near as she can safely get to the place Schilizziv. Derry, 4 E. & B. 875; Bastifell v. Lloyd, 1 H. & C. 388; Parker v. Winlo, 27 L. J. Q. B. 49. named for the discharge of his vessel, and he is prevented from going to the place itself by reason of some permanent obstacle, he would be entitled to recover demurrage and damages for detention. Where a cargo of railway iron was shipped under charter to be carried from M. to Taganrog," or so near thereto as she might safely get," and by the bills of lading and charter-parties it was to be delivered at the port of T. On arrival on the 17th December at Kerteh, thirty miles short of T., the master found that further navigation was impossible owing to the ice, and that the port of T. would not be open again until April. He, therefore, notwithstanding express notice from the charterers at T. not to do so, discharged the cargo at K., the nearest port to T. to which he could safely get, and placed it in the charge of the Custom-house authorities, and left without any intention of returning or carrying on the cargo to T., which had been taken possession of by the consignee's agents under the bills of lading. It was said in the judgment that there was no pretence for saying that Kerteh was within the ambit of Taganrog; and Coleridge, C. J., remarked,-" It was clear that the obstruction of the port was a temporary one, such as must be incident to every autumnal contract of this nature, and common sense revolts against the idea that in particular instances when the contract relates to a sea liable to be frozen, the words at that time,' or 'then and there,' are to be inserted after as near thereto as the ship can safely get.' It would astonish mercantile minds if such words were, and there is no authority for saying that they should be, inserted;" and the suit which was brought by the shipowners against the charterers for recovery of freight was dismissed.1 The question as to the effect of a vessel being prevented from reaching her named place of discharge by other than physical causes, first came before the English Courts in 1879. By a charter-party made between the owners of the "Euxine" and a London merchant, it was stipulated that the steamer should load a cargo of deal timber in the Baltic and proceed to the London Surrey Commercial Docks, "or as near thereunto as she might safely get," ten lay-days being allowed for the discharge. The S. C. Docks were private docks adjoining the port of London, and the defendant applied to the owners of the docks for a berth for unloading the ship, but was unable to obtain one in consequence of the crowded state of the docks. The plaintiff's brought the ship to London and applied at the dock gates for admission, but were refused and accordingly moored the ship at the nearest safe place. The defendant made no other arrangement for unloading the ship, and the plaintiff's ultimately themselves unloaded the ship by lighters into the S. C. Docks, and claimed demurrage and damages for the detention of the ship. The plaintiffs were held entitled to recover, as the vessel had been prevented from entering the said docks 1 Metcalfe v. The Britannia Iron Works Co., L. R. 2 Q. B. D. 423; 46 L. J. Q. B. 443, solely by the action of the proprietors of those docks, and that as the causes of the refusal, and the refusal would have lasted for several months, the plaintiff's were prevented from getting their ship to its destination by an obstruction and disability of such a character that it could not be overcome by the shipowner by any reasonable means except within such a time as, having regard to the object of the adventure of the shipowner and charterer, was a matter of business wholly unreasonable.' The principle laid down in this case was followed in Murphy v. Coffin.2 A decision similar to the above had been given in Scotland in 1877, in a case where a ship was chartered to load a cargo of scrap iron and therewith to proceed to G., or "so near thereto as she may safely get." On 10th September she arrived at G., but the docks were full. On the 12th she was anchored off the entrance of one of the docks, where it was proved that ships used to be unloaded of similar cargoes by means of lighters, but there had been no practice as to scrap iron. On the 13th the master intimated he was ready to discharge, but the discharge did not commence until the 22nd, and was completed on the 28th September, when the vessel had been removed into the docks. Held, that demurrage was due from the 11th to the 28th September. Per Lord President Inglis:-"There is no difficulty in the rule of law, which is recognized Nelson v. Dahl, L. R. 6 App. Cas. 38; 50 L. J. Ch. 411. both here and in England. A vessel, where she undertakes to go to a certain port, does not fulfil her obligation unless she goes either to the appointed place of discharge, or to an usual place of discharge. I am of opinion that the obligation in this case was fulfilled, and that the charterers, though they desired to get the vessel into the railway dock for the purpose of discharging on to trucks, could not reasonably refuse to take delivery where the ship lay, when the result was to cause delay."1 In Horsley v. Price, the charter-party provided that the ship should proceed to Sharpness, "or so near thereto as she may safely get, at all times of tide, and always afloat," and deliver the cargo. On arrival in the Severn she came to an anchor in King's Road, an open roadstead without any wharf; that being the nearest place to Sharpness to which she could get at the then state of the tides. North, J. held, that she had arrived at her destination, so that the lay-days began to run on notice to the receivers that the vessel had arrived at the nearest place to S. to which she could get in the then state of the tide. If the charter-party describes a larger place, as a port or dock, the shipowner may place his ship at the disposition of the charterer when the ship arrives at that named place, and, so far as she is concerned, is ready to load, though she is not then in the particular part of the port or dock in which the particular 1 Bremner v. Burrell, 4 Sc. Sess. Cas. 934. 2 L. R. 11 Q. B. D. 244; 52 L. J. Q. B. 603. |