Demurrage. Plaintiffs agreed with the defendants to convey a cargo to Oporto, and if the river was in possession of an enemy, to unload at F. outside the harbour. The freight was to be 4757. if the vessel could enter Oporto, discharge, and reload there 3007. only: twenty-five days were allowed for unloading. Plaintiffs arrived at F., 2nd June, and, an enemy being in possession of the river, commenced unloading there. The vessel was detained at F. partly for the convenience of defendants, and partly by bad weather, till August 25th, and by that time had discharged seven-eighths of her cargo; the enemy then having quitted the river, she entered Oporto, where she discharged the remaining eighth of her cargo. July, the defendants' agent at Oporto gave plaintiff's a bill for the larger freight. In September the vessel obtained, at Oporto, a full cargo for England: Held, that the plaintiffs were entitled to the larger freight.1 In As freight is the compensation payable for the use of the ship from the time of the shipment of the goods until they are ready to be delivered at the port of delivery, so demurrage is a compensation payable for the improper detention of the vessel by the shippers, or their agents, after the goods might have been delivered.2 Demurrage has been defined as an extended freight. The word "demurrage," no doubt pro 1 Gibbens v. Buisson, 1 Bing. N. C. 283. 2 Evans v. Forster, 1 B. & Ad. 120. Jesson v. Solly, 4 Taunt. 52. perly signifies the agreed additional payment (generally per day) for an allowed detention beyond a period either specified in, or to be collected from the instrument; but it also has a popular and more general meaning of compensation for undue detention, and from the whole of each charter-party containing the clause in question, must be gathered what is the proper meaning to be assigned to it.' 2 Bowen, L. J., in Clink v. Radford & Co., whilst accepting this definition of the word "demurrage” observes :-"Demurrage' is an elastic word, it has a strict sense but it can be stretched beyond its strict sense. The 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." The difference between charters in which a specific time is allowed, whether for loading or unloading, and those in which the lay-days are wholly undefined is of great importance. In the one case the time is limited without regard to the circumstances under which, when the time arrives, the contract has in fact to be performed. In the other case, the question whether the charterer has been duly diligent must be determined by reference to the conditions under which he has actually worked. When the time is definitely fixed, or is described so as to be calculable beforehand, there is an ab 1 Lockhart v. Falk, L.R. 10 Ex. 132; Francisco v. Massey, L.R. 8 Ex. 101; 42 L. J. Ex. 75. 2 L. R. (1891) 1 Q. B. 625. 2 3 solute obligation on the charterer to have the work completed within that period, whatever circumstances occur. He is answerable, although the completion may have become impossible owing to the causes which have arisen without any fault or omission on his part. Thus he bears the risk of delay arising from the crowded state of the place at which the ship is to load or discharge,1 or from frost, or bad weather preventing access to the vessel, or from acts of the Government of the place prohibiting export, or preventing communication with the ship, and it will be no defence to an action for demurrage, that the delay in unloading the ship arose from the act of Custom House officers, in unlawfully seizing a part of the cargo.5 And it is immaterial that the shipowner also is prevented from doing his part of the work within the agreed time, unless he is in fault. The charterer takes the risk. His contract is "that if the ship is not able to discharge the whole of her cargo within the given number of days after she is at the usual place of discharge, he will pay for the delay, however the delay may be caused, unless it is by default of the shipowner." In Thiis v. Byers,' the place of discharge was in the river Tees, the cargo was timber and by the 1 Randall v. Lynch, 2 Camp. 352. 2 Barrett v. Dutton, 4 Camp. 333; Pringle v. Mollett, 6 M. & W. 80. 3 Thiis v. Byers, L. R. 1 Q. B. D. 244. Barker v. Hodgson, 3 M. & S. 267; Blight v. Page, 3 B. & P. 295n; White v. S. S. Winchester Co., 23 Sc. L. R. 342. 7 L. R. 1. Q. B. D. 244; Harper v. McCarthy, 2 B. & P. N. R. 258. practice of the port it was the master's duty to put it over the ship's side and form it into rafts, when the consignees would send steam tugs to take it away. Owing to bad weather the timber could not be put over and formed into rafts; and thus, though the tugs could have worked, the charterers were unable to take away the cargo within the prescribed days for discharging, still they were liable. In Budgett v. Binnington,' the cargo was to be discharged at Bristol in a fixed number of days. The discharge was begun but owing to a strike of the dock labourers, both those employed on behalf of the ship and those engaged by the consignees, it was delayed beyond the stipulated time. The labourers who were doing the ship's part of the work were not engaged by the shipowners, but by a firm of stevedores who were employed by the shipowners. It was held that the consignees were liable for demurrage. For the ability of the shipowners to discharge was not a condition precedent to the obligation of the merchant to have the discharge completed in the fixed time. Performance of that obligation would only be excused by showing that the shipowner improperly prevented it. But the freighter is not liable for the delay if it has been due to a default on the part of the shipowner; for example, in refusing to deliver in the proper manner, or in not addressing the ship to the charterers' agents as agreed in the charter-party, so 1 L. R. 25 Q. B. D. 320; L. R. (1891) 1 Q. B. 35. 2 Benson v. Blunt, 1 Q. B. 870. 1 that notices have not been given to consignees of cargo as they would have been. Or in failing to bring the ship to the loading place at the time notified to the charterer under the contract. And where the ship has been herself directly disqualified from loading or unloading, as by quarantine regulations of the port, it has been held that the shipowner cannot claim for the consequent delay. In White v. S. S. Winchester Co., the cargo was to be supplied at the rate of not less than 110 tons per running day, Sundays excepted. "The vessel was lying at Port Said when the charter was made, and on arrival at the loading port it was found that vessels from Egypt were required to go into quarantine. The Court of Sessions held that the charterer was not liable for the detention in quarantine, for the laydays did not begin until the vessel was not only at the place of loading, but could also be placed there at the charterers' disposal as ready to receive cargo. So, too, the freighter is not generally liable for a delay caused by neglect. Or difficulty in getting the necessary Custom House papers for discharging; unless the delay has been incurred at his request,* or in consequence of a special order being required for discharging the goods which he has shipped.5 In reckoning time under a stipulation for demurrage, days and running days mean the same thing, 1 Bradley v. Goddard, 3 F. & F. 638. 23 Sc. L. R. 342; Cunningham v. Dunn, L. R. 3 C. P. D. 413. Hill v. Idle, 4 Camp. 327. |