« EelmineJätka »
party was appointed by the charterer, but paid by and in the service of the ship; the question was whether the shipowner was protected by the exception as to "thieves." The Court of appeal ruled he was not; Bowen, L. J., in the course of his able judgment observed:-" The broad principle of commercial law always was and is that the ship, in the absence of express provision to the contrary, was liable to the cargo-owner for losses, occasioned by theft committed on board. Robbery imports violence, but theft,' which properly speaking, does not, may be of several kinds. There may be the assailing thief from outside, the thief who breaks through and steals,' there may be a thief on board among those who are lawfully on board; there may, lastly be a thief among the crew. The controversy has principally turned upon the question whether the term 'thieves' ought not to be confined to the first of these categories, viz.: the depredators outside the ship."
"The introduction of the term "thieves" into the exceptions in English charter-parties and bills of lading is of late date, formerly dangers of the sea being the only accidents excepted. For goods stolen or embezzled the master was liable, unless there was vis major. By degrees the list of exceptions has expanded, and the word "thieves" has received a judicial interpretation in the case of Taylor v. The Liverpool and Great Western Steam Co., where diamonds which were being conveyed from Liver
3 L. R. 9 Q. B. 547,
pool to New York, were stolen when on board the ship, either on the voyage, or after her arrival in port, before the time for delivery arrived, but there was no evidence to show whether they were stolen by one of the crew or by a passenger, or after her arrival by some person from the shore. It was there held in effect that the term was only intended to deal with thefts by persons "not belonging to the ship," an expression which, however, is ambiguous, but which in the above case seems to be used as equivalent to persons outside the ship. But thieves may "belong" to a ship in two ways. They may be persons who, though they are lawfully on board, have nothing to do with the service of the ship; or they may be the master and crew or persons in the service of the ship. Is the language "thieves of whatever kind, whether on board or not, or by land or sea," intended to add both of these classes of depredators, or only the former class, to the outside "thieves?" This question of construction must be decided on the broad principle which has been so long and so constantly invoked in the interpretation of contracts with carriers by sea as well as land, viz.: that words of general exemption of liability are only intended (unless the words are clear) to relieve the carrier from liability where there has been no misconduct or default on his part or that of his servants. The exceptions are not intended to excuse the carrier from the obligation of bringing due skill and care on the part of himself and his servants to bear upon both the
stowing and upon the carrying of the cargo. Even in cases within the exceptions the shipowner is not protected if default or negligence on his part or that of his servants has contributed to the loss.
"It is the duty of the shipowner by himself and his servants to do all he can to avoid the excepted perils; the exception, in other words, limits the liability, not the duty. Upon this ground, it was held that the mere introduction into the list of exceptions of the words 'thieves of whatever kind,' &c., does not relieve the shipowner from liability for the thefts committed by those in the service of the ship. A subsequent clause in the bill of lading exempts the shipowner from liability, for neglect or error in judgment, but leaves wilful misconduct of those in the ship's service still untouched. If it was intended to relieve the shipowner from liability for thefts committed by persons in the ship's service, clear and explicit language to that effect should have been used."
In a charter-party, containing the usual provision Strikes. for payment of demurrage, with the exception "no demurrage to be paid the vessel in case of any hands 'striking work,' which may hinder the loading of vessel," the word "strike" is to be understood in its ordinary meaning, that is, as a strike of workmen against their employers in the ordinary sense of the word. Abandonment of the work by the workmen through fear of cholera, which had broken out in the district, is not a "strike" within the meaning of "hands striking work."1
1 Stephens v. Harris, 6 Asp. M. L. C. 192.
In the case of Budgett v. Binnington,1 the plaintiffs being the consignees under a bill of lading, incorporating a clause in the charter-party, fixing the number of lay-days for unloading, and allowing other days for demurrage, sought to recover from the defendants, who were the shipowners, a sum of money paid to them under protest in respect of a claim for demurrage. Neither the bill of lading nor the charter-party said anything about dock strikes. By the custom of the port of Bristol, cargoes were discharged by the joint act of the shipowner and consignees. There being a strike among the labourers employed by the ship, as well as by the consignees during the lay-days, the unloading was prevented and could not be continued until after the expiration of the lay-days. It was held, that the contract by the freighter to pay demurrage to the shipowner, if the ship is not unloaded at the expiration of a fixed number of lay-days, is an absolute one, subject to the shipowner doing nothing to prevent the unloading; and, consequently, where the ship is being unloaded by the joint act of the shipowners and freighters, and under a contract between the shipowners and stevedores, the latter employ the necessary dock labourers, and delay in unloading is caused by a strike of the labourers employed on behalf of the shipowners and freighter, the freighter is not relieved from his liability to pay demurrage, as the shipowners have no control over the labourers.
1 L. R. 25 Q. B. D. 320; L. R. (1891) 1 Q. B. 35.
Where a strike is a circumstance arising from the application of the custom of the port, and delay is consequently occasioned by reason of that custom, the charterers are not liable under the charter-party, for the delay in the discharge of the cargo. Thus, where by a charter-party, the plaintiff's ship was to proceed to a port named with the cargo, and there "be discharged with all despatch as customary, and ten days on demurrage over and above said lying days at 6d. per net register ton per day." The discharge of the cargo was delayed for four days owing to a strike of dock labourers employed by the dock company, who, by the custom of the port, did the work of discharge both for the shipowners and the charterers-It was held, that the charterers, were not liable for the delay, the words "to be discharged with all despatch as customary," meaning that the cargo was to be discharged with all reasonable despatch, having regard to the actual circumstances and manner of discharging cargo customary at the port of discharge, and that no definite time was fixed by the charter-party within which the cargo was to be discharged.1
The defendants chartered the plaintiffs' ship for carriage of a cargo of coal from the Tyne to London to the Pool, Regent's Canal, Victoria Dock, the Derricks, or Beckton, as ordered, and deliver the cargo to the order of the charterer. Amongst the exceptions in the clause as to the lay-days for load
1 Castlegate Steamship Co. v. Dempsey, L.R. (1892) 1 Q.B. 854; Hick v. Raymond, L. R. (1893) A. C. 22.