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days' demurrage. It was held, that the consignee was liable under the bill of lading, for the whole demurrage, though only one of several consignees.1
On the 2nd June, 1888, the defendant entered into two contracts with the plaintiffs, the consignees of the cargo, each for the purchase of 500 tons of coal per S.S. "Dunedin," then in harbour. The contracts provided (inter alia) "delivery to be taken at a rate of not less than 200 tons per day. All conditions in the charter-party to be binding on the purchaser." The charter-party stated, "cargo to be discharged, weather permitting, at the average rate of not less than 300 tons a working day, or to pay demurrage at the rate of 30l. per working day, or pro rata." Previously to the 2nd of June the rest of the cargo had been sold by the plaintiffs to three other purchasers, and the lay-days had already partially expired; but as regards neither of these facts did the defendant ask, nor were they given information. The Dunedin" discharged at only three of her four hatches, and so discharging was able to give delivery of something more than 300, but less than 400 tons a day. Delivery was given to whichever of the four purchasers was the first to come alongside. At the expiration of the laydays (being the days required to discharge the whole cargo at the average rate of 300 tons a day) the cargo had been completely discharged, with the exception of 264 tons, which remained to be delivered to the defendant. The cargo to be discharged
1 Porteus v. Watney, L. R. 3 Q. B. D. 223, 534; 47 L. J. Q. B. 643.
subsequently to the 2nd of June would have been discharged within the lay-days, but for the want of lighters on the part of the purchasers of the cargo generally. It occasionally happened, however, that a lighter was kept idle waiting for its turn at one of the three hatches. The plaintiff's paid one day's demurrage in respect of the delay in discharging the 261 tons, and now brought an action to recover the same from the defendant. that the defendant was liable. The contract of the defendant (by incorporation of the charter-party) to take delivery within the lay-days, or to pay demurrage, being absolute, he could only excuse non-performance of his contract by showing it was due either to default of the captain of the ship, or of the plaintiff's themselves, neither of which had been shown. The plaintiffs were not to blame for any difficulties occurring by reason of there being other purchasers. That was the well-known nature of the trade, and it was for the defendant, if he desired protection in this respect, to provide for it in his contract. Neither were the plaintiffs bound to be able to deliver to the defendant at the rate of 400 tons a day under his two contracts. The stipulation in each of the two contracts, that delivery should be taken at a rate of not less than 200 tons per diem, was not one on which the defendant could insist, but was an independent stipulation in favour of the owners of the cargo.1
1 Volkart Bros. v. Nusservanji Jehangir Khambatta, I.L.R. 13 Bom. 392,
If the ship is not discharged during the time allowed by the charter, then for every day and fraction of a day during which she is detained, the stipulated demurrage must be paid; for if not discharged within the minimum time allowed, the charterer must pay for the fraction of a day as if it was a whole day.1
In the absence of an express agreement the days for calculating the loading and unloading must be kept separate, and the charterer will have no right to add together the whole number of days occupied in loading and unloading for the purpose of ascertaining the average amount of work done on each day."
The consignee of a bill of lading which makes the goods deliverable to him or assigns, "paying for the said goods as per charter-party," does not, by taking the goods at the destination, make himself liable to pay for demurrage in the port of loading, according to the rate stipulated in the charter-party, though there be an express stipulation for a lien on the goods for such demurrage.3
Under the terms of a charter-party, cargo was to be shipped at the rate of 200 tons per running day, and to be discharged as fast as ship could deliver, not exceeding 200 tons per working day. Demurrage, if any, at the rate of 20s. per hour, except in certain cases, and despatch money 10s. per hour on any time saved in loading or discharging. Ship to
1 Commercial S. S. Co. v. Boulton, L. R. 10. Q. B. 316; 44 L.J.Q.B. 219. 2 Marshall v. Bolckow, L. R. 6 Q. B. D. 231.
3 Smith ". Sieveking, 24 L. J. Q. B. 257,
load and discharge by night and by day, and as rapidly as possible when required by shippers, consignees or charterers:-It was held on a special case, reversing the decision of the Court of Queen's Bench, that, according to the true meaning of the charterparty, despatch money was payable for every hour saved during the whole twenty-four hours, and not merely in respect of a working day of twelve hours.'
Bramwell, L. J., said: "We cannot agree with the judgment in this case. It seems founded on there being something in the charter-party by which days and their length can be ascertained, and become of importance. We can find nothing to this effect, there is no such expression as 'lay-day,' and nothing which would ascertain how many hours would make a working day. Our law does not fix the number of hours in a working day, and certainly we have no statement what is its length in Elba. We think there is nothing by which time can be measured, except hours. The charterer is to ship at the rate of 200 tons per running day, that is to say, at least that quantity, unless hindered by strikes, &c., on which nothing turns; weather may excuse him to the extent of two days. But he may ship by night as well as by day, for so the steamer is bound to load; and the steamer is to unload barges sent alongside with all possible despatch. The charterer may therefore ship the whole twenty-four hours round, and ship no more than the 200 tons. The cargo is to be discharged as fast as the ship can 1 Laing v. Holloway, L. R. 3 Q. B. D. 437; 47 L. J. Q. B. 512.
deliver, not exceeding 200 tons per working day, weather permitting. The working day here does not mean a day of any particular length, but working' as opposed to a Sunday or a holiday. This means that the charterer is to unload at that rate, not that the ship is bound to discharge that quantity only. On the contrary, as in the case of the loading, the steamer is bound to discharge by night, and as rapidly as possible when required by shipper, consignee or charterer.' There is, therefore, no day of any length mentioned. There is a maximum of obligation on the charterer of 200 tons for loading and discharging on each working day, but the maximum of obligation on the ship to receive and discharge has no limit except as rapidly as possible;' and the charterer has the whole twenty-four hours round in which he may unload the 200 tons. Then, what is the meaning of time saved in loading or discharging?' The literal meaning I suppose would be doing those things in less time than they might be done in with ordinary despatch, i. e., if ordinary despatch with the ordinary number of hands and ordinary diligence would load and unload in twenty days or 210 hours; then extraordinary despatchextraordinary number of hands and extraordinary diligence in doing those things in fifteen days or 180 hours, the difference, five days, or sixty hours is time saved. Because strictly speaking, time is not saved in doing a thing by working twenty-four hours round instead of twelve in one day and twelve another; twenty-four hours have been consumed