cargo is to be loaded; but in the absence of his right to place his ship only as near to the named place as she can safely get, he cannot place his ship at the disposition of the charterer so as to initiate the liability of the latter as to the loading, until the ship is at the named place, or the place which by custom is considered to be intended by the name; as, if a larger port be named, the usual place in it at which loading ships lie. If it describes a more limited. place, as a quay or quay berth, or a particular part of a port or dock, the shipowner may place his ship at the disposition of the charterer when the ship is arrived at that place ready, so far as she is concerned, to load, but not until the ship is at that place. The further right of the shipowner as to the loading is, of course, his right to insist on the liability of the charterer, whatever that may be, which attaches when and after the ship is duly placed at his disposition.1 The statement in a charter-party that the vessel is to arrive at a named port ready to load by a certain date, is a condition precedent to the charterer's not exercising the option given by the charter-party; and the clause providing for that overrides the whole charter-party, including the clause as to dangers and accidents of the sea. And if the vessel does not arrive at the time specified, then that condition precedent not having been fulfilled, the charterer will be at liberty to cancel the charter-party." 1 Nelson v. Dahl, L. R. 12 Ch. D. 582. * Smith v. Dart, L. R. 14 Q. B. D. 105; 51 L. J. Q. B. 121. So where a ship was freighted to go in ballast to Jamaica, and bring home a cargo from thence, and the freighter undertook to provide a full cargo for her, in time for the July convoy, provided she arrived out and was ready by the 25th June; it was held, that as she did not arrive out till after the 25th June, the freighter was entirely discharged from his contract to furnish a cargo.' 1 Where, however, the default of which the freighter complains, does not go to the whole consideration for his contract, and he has derived some benefit from the use of the ship, the covenant broken on the part of the shipowner is not to be considered as a condition precedent but as a distinct covenant, for the breach of which the party injured may be compensated in damages. Therefore, if the voyage has been performed, it is no defence to an action for the stipulated freight, to shew the breach of a covenant to sail with the first wind; or to sail direct to the port of destination; or to sail with the first convoy on the intended voyage; or that the ship should forthwith be made tight and staunch; or that the master should take on board a full and complete cargo." 3 2 4 Where a charter-party contained a clause that the vessel was to proceed to London or Tyne Dock "to such ready quay berth as ordered by charterers," on arrival of the ship at the Millwall Docks, London, a delay occurred by reason of there being no quay berth ready to receive her. She discharged part of the cargo into lighters, and the remainder when she got into a quay berth. The plaintiffs claimed a lien on the cargo in respect of such delay, and deposited the cargo with the dock company with notice not to deliver the same until payment of the amount claimed. The defendants, who were the owners of the cargo by virtue of certain delivery orders from the charterers or their assigns, claimed delivery of the cargo, and having paid to the company the amount claimed by the plaintiffs, gave the company notice not to part with the same as they disputed the plaintiff's lien. It was held, that the defendants were liable for the amount claimed, as the word "ready" was introduced into the charterparty for the protection of the plaintiffs; and that the defendants were in the same position as the charterers, who under the charter-party were bound to name a quay berth to receive the ship as soon as she was ready to proceed there.1 Brett, M. R., said: "The question must be, whether as between the shipowners and the charterers the latter would be liable, and to what extent. The charter-party is an extremely difficult one to construe. Is the clause put into the charter-party in favour of the shipowners or not? It is in express terms, namely, when the ship is loaded, she Harris v. Jacobs, L. R. 15 Q. B. D. 247; 54 L. J. Q. B. 492. is to proceed "to such ready quay berth" as ordered of. The word "Port" in the charter-party must be Port, meaning construed by reference to the meaning commonly given to it by merchants and shipowners. The extent of the particular port, as understood by them, is not necessarily or ordinarily determined by its legal definition for fiscal or like purposes, or even by geographical considerations. Its extent in a commercial sense is rather shown by such considerations as the safety afforded for shipping, the conveniences for loading and unloading, the usages of the place with regard to anchoring, loading and discharging, and the area over which those matters are regulated by the authorities having jurisdiction in the port. Ports and havens are not merely geographical ex pressions. They are places appointed by the Crown, "for persons and merchandises to pass into and out of the realm," and at such places only is it lawful for ships to load and discharge cargo. The assignment of such places to be "the inlets and gates" of the realm is and always has been a branch of the prerogative, resting, as Blackstone remarks,' partly upon a fiscal foundation, in order to secure the king's marine revenue. Their limits and bounds are necessarily defined by the authority which creates them, and the area embraced within those limits constitutes the port. 2 3 The meaning of the word "Port" was much discussed in Garston v. Hickie, where the vessel had been loaded at Cardiff, had left the docks with the intention of proceeding at once to sea, and had got beyond the artificial channel mentioned in Roelandts v. Harrison. Brett, M. R., said:-"By the word 'Port,' the parties intend the port as commonly understood by all persons who are using it as a port, i.e. for sailing to or from it with goods and merchandise. What persons are they? Shippers of goods, charterers of vessels and shipowners." His Lordship then said the port was not generally "the legal port" as defined by Acts of Parliament, but "a place of safety for the ship and the goods, whilst the goods are being loaded and unloaded;" that 1 Vol. 1 p. 263. 2 Per Lush J. in Nicholson v. Williams, L. R. 6 Q. B. 632. 3 L. R. 15 Q. B. D. 580. See also Hunter v. N. Mar. Ins. Co., L.R.13 App. Cas. 717. 23 L. J. Ex. 169. |