Demurrage. delivery stipulated in the Bill of Lading or Charterparty. in the case of a general freight ship. There have been several cases before the Courts, arising out of disputes respecting demurrage, some of which it may be proper to notice in this place, because the decisions of the Courts in those cases, are material to show the stipulations, and agreements, which are proper to be introduced. If no time for into charterparties, respecting demurrage. If by the bill of lading no time be stipulated, within which the goods are to be discharged, the implied contract on the part of the consignee or owner of the goods, is to discharge the ship, in the usual and customary time for unloading; and it has been held, that the consignee is not liable, to an action for a compensation to the shipowner, in the nature of demurrage, for any delay occasioned by the crowded state of the London docks, though the cargo might have been landed sooner, if instead of bonding the goods, the duties had been immediately paid by the consignee. The master cannot maintain an action of assumpsit in his own name, (as he may for freight on a bill of lading,) upon an implied promise to pay demurrage, when there is not a bill of lading expressing it to be so Unless the Bill payable(2). If, however, a consignee accept goods The Master cannot sue upon an implied promise for Demurrage; of Lading (1) Burmester v. Hodgson, 2 Camp. Rep. 488. See also Rodgers ". Forresters, 2 Camp. 483, which was an action on a Charterparty, containing a covenant to unload the vessel in the usual and customary time, and in which the decision was the same. (2) Brouncker v. Scott, 4 Taunt. 1. In this case it appears also payable. under a bill of lading, at the bottom or margin express it to be of which is a memorandum, that the ship is to be cleared in a certain number of days, and at a If so expressed certain sum per day demurrage, to be paid after the Master may that time, the master, upon delivery of the goods, may sue in his own name, and recover demurrage against the consignee("). sue for it in his own name. Owners of was Demurrage in certain cases, the without any fault of their Cases have occasionally arisen upon charter- Charterers, parties, and others upon bills of lading, in which Consignees, or demurrage was expressed to be payable, where Goods, liable to the delay in the discharge of the goods, caused by events, not under the control of charterer, consignee, or owner of the goods, yet he has been held liable to pay the shipowner demurrage for the period of detention; as for instance, where it arose from the crowded state of the London docks, and the inability of the dock company to discharge the vessel; where to have been assumed on the part of the Consignee's Counsel, that the Captain had no Lien on the goods for the payment of Demurrage, as it would involve this difficulty, that as the amount of the Demurrage, would be continually increasing, by the detention of the goods, the delivery of them would never be demanded. See also Evans v. Forster and another, 1 Barn. and Adol. 118. In Burmester v. Hodgson, 2 Camp. N. P. C. 488, before referred to, an action of Assumpsit, on an implied promise for Demurrage, was attempted without success in the name of the Master. (1) Jesson v. Solly, 4 Taunt. 52; and see Harman v. Clarke and others, 4 Camp. N. P. Rep. 159; Harman v. Mant, ibid, 161. (2) Randall v. Lynch, 2 Camp. 352, and 12 East, 179, which was an Action of Covenant upon a Charterparty. own. Demurrage. the loading and departure of the vessel was prevented by the river Thames being frozen over"); Consignees, or where there was a prohibition of a foreign go Owners of certain cases without any fault of their Goods, liable to vernment, against the exportation of the intended Demurrage in articles, and the captain did not know of the prohibition, before entering the port to which he went for the goods(2); where the consignee had not notice of the vessel's arrival(3); where the delay arose, in consequence of the act of the revenue officers, in unlawfully seizing a part of the cargo. own. In a case which arose upon a general ship, which took brandies on board under bills of lading, which allowed for the delivery in London twenty lay days, and stipulated for £4 per day afterwards, some of the consignees choosing to have their goods bonded, the vessel could not make her delivery in the London docks until forty-six days after the twenty days, some of the goods which were undermost, could not, though demanded, be taken out, until the upper tiers were cleared; it was decided, that each of the consignees of such goods, was liable on a general count, for demurrage, in an action brought by the master, to pay £4 per day for the forty-six days; and Sir James Mansfield, C. J. observed, (1) Barret v. Dutton and another, 4 Camp. N. P. 333. (2) Blight v. Page, 3 Bos. and Pul. 295, (in notis), cited by Gibbs, C. J. in Barret v. Dutton, 4 Camp. N. P. 334. (3) Harman v. Clarke, 4 Camp. 159. (4) Bessey v. Evans, 4 Camp. 131. Owners of certain cases own. "I was struck very much with the argument, Demurrage. that it was not the fault of the defendant, but the Charterers, fault of the plaintiff himself, that those goods Consignees, or could not be got out, until the other goods which Goods, liable to lay above them were delivered. But it is not, Demurrage in in truth, the fault either of the plaintiff or de- without any fendant, that the goods could not be taken out. fault of their There can be only so many goods at the top of the vessel, as the proper stowage of the goods will allow, therefore all the others must be at the bottom; and as this is a general ship, and the goods do not all belong to the same consignee, the goods of some of the consignees must be undermost. If this argument would avail, therefore, that the captain is not entitled to demurrage, for those goods which were not uppermost, it would restrain the contract for demurrage to the few persons whose goods were at the top, but that construction would be contrary to the positive contract; for it is impossible to get out of the words of this bill of lading, which though it is a singular species of contract, to bind a consignee by an instrument signed not by himself, but by the captain, yet as the consignors delivered the goods on board under that bill, and the defendants accepted that bill of lading, it is binding upon them, and therefore this action may be sustained on the general count for demurrage"1). (1) Leer v. Yates, 3 Taunt. 387; Leer v. Cowell; and Leer v. Gorst, ibid. Demurrage. Where a general ship took some silk on board, to carry from Rotterdam to London, on the deConsignees or fendant's account, and on the margin of the bill of Charterers, Owners of certain cases without any own. Goods, liable to lading was written, "The consignee to clear the Demurrage in goods in fourteen running days after her arrival in port, or to pay £4 per diem for demurrage;" the fault of their vessel was ready to deliver on the 3rd of October. The defendant applied for, and was ready to receive his goods within the running days, but being undermost in the vessel, delivery could not be made until the 22nd; it was held that the plaintiff was entitled to recover demurrage, although he did not deliver the goods within the time allowed, being prevented by other goods belonging to other consignees which overlaid them; and Gibbs, C. J. stated, "The consignee, by taking to the goods, contracts with the owners of the vessel, to perform the terms upon which they have undertaken to convey and deliver them. Those terms are expressed in the bill of lading, and the defendants by claiming and receiving the silks, have acceded to them. The captain was ready to deliver his cargo on the 3rd of October. If all the consignees had been ready, he might have cleared the vessel within seven days. It appears, however, that she was not cleared till the 24th. The consignees of such goods which are at the bottom of the vessel, cannot receive them till the latter period of delivery. Each consignee undertakes to clear away his goods within a certain time, and although by the default of |