1

well illustrated by three cases. In Randall v. Lynch,' the charterer was held liable for demurrage, a particular time being fixed by the charter-party for the discharge of the cargo. In Rodgers v. Forrester," where the contract was to discharge the ship "within the usual and customary time for unloading such a cargo,” and in Burmester v. Hodgson,3 where the Court thought this to be the contract which the law ought to imply from the terms of the charterparty, the charterer was held not liable for demur

rage.

By the terms of a charter-party a steamer was to take a cargo to Hamburg "to be discharged at usual fruit berth as fast as steamer can deliver, as customary." On the 6th of March she arrived, and was moored at the usual fruit berth, but without the sanction of the authorities, who had her removed till the 8th, when she returned to the berth. Owing to various causes unloading did not commence till the 11th of March. The shipowners brought an action for demurrage. Held by the Court of Appeal, that the steamer did not arrive at her place of discharge so as to impose any obligation on the charterers to unload, until the 8th of March; that the words "as customary" referred to the speed of delivery as well as to the mode of delivery, so that the cargo had to be unloaded as fast as the custom of the port would allow; that the delays were caused * 2 Camp. 483.

1

2 Camp. 352.

32 Camp. 488.

by the custom of the port, and that the claim for demurrage ought not to be allowed.1

Kay, L. J. said :-"I think that as customary' in this charter-party related directly to the discharge and delivery by the ship, rather than to the taking delivery by a consignee. To be discharged as fast as steamer can deliver as customary,' means that the discharge and delivery is to be as fast as the custom of the port would allow, and that the shipowner took the risk of a delay in that discharge and delivery owing to the custom of the port. It was argued that those words refer only to the mode of delivery-the means and appliances for actually taking the cargo out of the ship-and not to the time within which it is to be done, which is fixed by the words as fast as steamer can deliver.' I will assume that, by using the cranes at the warehouses, the discharge would be facilitated, and be more rapid, and would take a shorter time than by any other method. The shipowner would by the terms of this charter-party, be bound to use the customary mode if it were more expeditious. Why not also if it involved some little delay? Then it was said with some force that the real reason for the delay was that the warehouses were full, and the shipowner had nothing to do with that. The charterers or consignees should have arranged that room should be found in them, or that some other mode of taking delivery should be substituted. On the 8th of March, the consignee of a large part of

1 Good v. Isaacs, L. R. (1892,) 2 Q. B. 555; 61 L. J. Q. B. 649,

the fruit, wrote in answer to a letter of the Captain, that the warehouses were full, that there were no quays available, and he offered to take delivery in the harbour, which he said would take three or four days, if not more, whereas if the ship waited till the 11th, she could discharge at the warehouse by that night. The Captain states that discharging in the harbour meant into lighters, which would take more time. The warehouses were under the management of the harbour authorities, said to be the Government, and the consignees were not responsible for their being full at the time. By the usual rule goods were removed in twenty-four hours, and if Sunday was not a working day, this was done on Saturday the 9th, so that on Monday the 11th, the warehouses were ready to receive this cargo. The Captain having the alternative of discharging in the harbour into lighters, which would possibly have taken longer, elected very prudently, I should think, in the interests of the shipowner, to proceed by the customary mode of discharge, and waited till Monday the 11th, thereby possibly saving time for the ship, and precisely following the terms of the charter-party."

In Wyllie v. Harrison,' the charter-party provided that the cargo was to be discharged "as fast as the steamer can deliver after having been berthed as customary." It was the custom at the port of

113 Sc. Sess. Cas. (4th ser.) 92, cited in Good v. Isaacs, L. R. (1892) 2 Q. B. 555.

To be loaded with usual

despatch.

discharge that on notification by the consignees or charterers of the arrival of a vessel to one of the two railway companies whose lines ran along the quay, the company should provide trucks into which the cargo was to be discharged by means of steamcranes provided by the harbour authorities. It was a rule of the port that pig iron should not be laid down on the quay. On the arrival of the vessel due notice was given to the railway company by whose line the cargo was to be forwarded, but delay was occasioned through the failure of the railway company to supply trucks. It was held the consignees were not liable for the delay so occasioned.

The engagement "to load with the usual despatch" is absolute, and admits of no qualification so as to dispense with performance, even where the performance is hindered by a casualty which the charterer could not prevent.

The clause includes the process of loading and requires it to be done with the usual despatch; and goes further, and covers the whole period from the time when the vessel is at the port, and is placed at the disposal of the charterer there, in a condition to receive her cargo. The object is to provide against unusual delay on the part of the charterer in putting the cargo on board, and whether the delay occurs in the course of loading or before the loading commences, whether it consists in keeping the vessel outside or inside the dock, is immaterial.1

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Ashcroft v. Crow Orchard Col. Co., L. R. 9 Q. B. 540; 43 L.J.Q.B. 191.

Plaintiff by charter-party engaged with defendants to receive and load on board his ship, a full and complete cargo of coals, about 110 tons, and to proceed to Dublin, &c., to allow 20 tons per working day for discharging. (The Act of God, &c. during said voyage always excepted.) To be loaded with usual despatch. Penalty for non-performance of this agreement, estimated amount of freight. Defendants engaged to load the vessel on the above terms. Vessel to load in Nelson Dock. The Nelson Dock was on a canal by which coals were brought from the colliery in "flats" alongside the vessel to be loaded. In consequence of a sudden frost, the loading of the plaintiff's vessel with coals so brought was delayed for thirty-four days. It was proved that if loaded with "usual despatch," it would have taken five and a half days, being at the rate of 20 tons a day. In an action for damages for the detention of the vessel, the learned judge directed the jury that "usual despatch" meant "usual despatch of persons who have a cargo in readiness for the purpose of loading," and that the circumstance of the navigation of the canal having been stopped by the frost, and the defendants having been thereby prevented from completing the cargo at the rate of 20 tons a day, was no answer to the action:-Held, a right direction.1

By a charter-party, the master of the plaintiff's ship engaged to receive on board a full cargo of coal and deliver the same as per bill of lading, to be

1 Kearon v. Pearson, 31 L. J. Ex. 1,