Page images
PDF
EPUB
[ocr errors]

rage days mentioned, and there is no fixed sum payable for detention. When we come to the provision applicable to the port of discharge, we find that the cargo is-' to be unloaded at the average rate of not less than 100 tons per working day'-when we know the amount of the cargo that has to be unloaded, that the clause gives a specific number of days for the unloading, the charterers to pay demurrage at the rate of 4. per ton register per diem except in case of unavoidable accident. That seems to me to come to this: the charterers are to have a number of days, which by calculation can be fixed immediately for unloading the ship, and for all days occupied in unloading beyond that time they are to pay demurrage at the rate of 4d. per ton register per day. Demurrage' is in express terms attached to the case of unloading of the ship, and it would, in my opinion, be contrary to every fair mode of reading that clause to say that that demurrage, which is stipulated for in terms for delay in unloading, can be applied to delay in loading. We find, therefore, that there is no clause allowing demurrage at the port of loading, while there is such a clause referring to the port of discharge. Then we come to the cesser clause, the 'charterer's liability under this charter-party to cease on the cargo being loaded, the owners having a lien on the cargo for the freight and demurrage.' The word 'demurrage' must mean demurrage as used in the charter-party; that is, as I have just stated, demurrage at the port of discharge, and the ship

owner has no lien according to this charter-party in respect of detention of the ship at the port of loading. If that be the true construction of those words in the charter-party, then, in respect of detention at the port of loading, if the cesser clause is construed so as to cover that breach, the shipowner will be left without remedy. According, therefore, to the canon of construction laid down, the cesser clause does not apply to the breach for which the plaintiff brings his action in this case, and the plaintiff is entitled to judgment. There is an additional reason for holding that there is no lien given by this charter-party for delay at the port of loading, namely, the inconvenience and difficulty arising from a lien in respect of an unascertained and unascertainable amount."

Bowen, L. J. said:-"We have to construe a cesser clause which provides that on the cargo being loaded the charterer's liability is to cease. There is no doubt that the partics may, if they choose, so frame the clause as to emancipate the charterer from any specified liability without providing for any terms of compensation to the shipowner; but such a contract would not be one we should expect to see in a commercial transaction. The cesser clauses as they generally come before the Courts are clauses which couple or link the provisions for the cesser of the charterer's liability with a corresponding creation of a lien. There is a principle of reason which is obvious to commercial minds, and which should be borne in mind in

considering a cesser clause so framed, namely, that reasonable persons would regard the lien given as an equivalent for the release of responsibility which the cesser clause in its earlier part creates, and one would expect to find the licn commensurate with the release of liability. That being the principle of construction to apply, one would not expect to find a shipowner placing his ship and himself at the mercy of a charterer without some equivalent, or contracting on a given event to release the charterer from all liability unless there were some other mode of protecting himself against the act of the charterer. Taking that as the principle to apply to this clause in this charter-party, the question is reduced to a simple one of construction. The lien is given, and if the lien is to be commensurate with the release of liability we shall be able to ascertain what is meant by the charterer's liability ceasing on the cargo being loaded, by examining the extent to which the lien has been given. The clause provides that the owners are to have a lien on the cargo for freight and demurrage, and I proceed, therefore, to consider whether, upon the true construction of this charter-party, 'demurrage' includes damages for detention at the port of loading. When the charter-party contains no clause allowing demurrage at a specified rate at all, it has been held that the word 'demurrage' in the exemption clause applies to detention, and that the charterer is discharged as soon as a cargo is on board. This was the case of Bannister v. Breslauer.1 The

L. R. 2 C. P. 497.

word 'demurrage,' therefore, having two meanings, we must look at the charter-party to see if it is used in the strict sense, or in the more popular and elastic sense. We have also this, that a lien is created, and, prima facie, a lien is only created as a convenient means of obtaining payment of a liquidated sum, or of a sum that may be liquidated and ascertained; and though the parties by the contract may provide that the lien shall extend to an unliquidated sum, nevertheless there is a prima facie inconvenience in creating the lien to cover unliquidated damages for detention. With these observations, I pass on to the remainder of the charter-party. One finds that the word 'demurrage' is used in the previous clause of the charter-party in its strict sense as an agreed payment for detention or delay at the port of discharge. There is no similar provision at all with regard to demurrage at the port of loading. When, therefore, we come to the cesser clause, we ought to assume that that clause only discharges the charterer from liability with respect to those matters that come under the head of demurrage in the sense previously used in the charter-party,-a sense the more convenient and the more natural-and does not extend to unliquidated damages for detention at the port of loading."

1

And in the recent case of Hansen v. Harrold Brothers, Lord Esher, M. R., whilst approving of the decision in the above case as being based upon

1 L. R. (1894), 1 Q. B. 615,

sound mercantile reasons, said:-"The proposition is true that, where the provision for cesser of liability is accompanied by the stipulation as to lien, then the cesser of liability is not to apply in so far as the lien, which by the charter-party the charterers are enabled to create, is not equivalent to the liability of the charterers. Where, in such a case, the provisions of the charter-party enable the charterers to make such terms with the shippers that the lien which is created is not commensurate with the liability of the charterers under the charter-party, then the cesser clause will only apply so far as the lien which can be exercised by the shipowner is commensurate with such liability.

The facts in this case were that the charter-party by which a ship was chartered at a lump freight for carriage of a cargo of oats from New Zealand to London, provided that the charterers might recharter the ship at any rate of freight without prejudice to the charter-party, the Captain to sign bills of lading according to the custom of the port at the current or any rate of freight required, without prejudice to the charter-party. The charter-party contained a clause by which the liabilities of the charterers were "to cease on the vessel being loaded, the master and owners having a lien on the cargo. for all freight and demurrage under this charterparty." The charterers re-chartered the ship. Under the sub-charter a cargo of oats was shipped, and a bill of lading given, by which freight was payable in London at a certain rate per ton on the weight

« EelmineJätka »