he must have the cargo there to be loaded, and tender it to be put on board the ship in the usual and proper manner. Therefore, the business of both parties meets and concurs in that operation of loading. When the charterer has tendered the cargo, and when the operation has proceeded to the point at which the shipowner is to take charge of it, everything after that is the shipowner's business, and everything before the commencement of the operation of loading, those things which are so essential to the operation of loading that they are conditions sine quibus non of that operation-everything before that is the charterer's part only. It would appear to me to be most unreasonable to suppose, unless the words make it perfectly clear, that the shipowner has contracted that his ship be detained for an unlimited time on account of impediments, whatever their nature may be, to those things with which he has nothing whatever to do, which precede altogether the whole operation, which are no part whatever of it, and which are perfectly distinct from it, but which belong to that which is exclusively the charterer's business. He has to contract for the cargo, he has to buy the cargo, he has to convey the cargo to the place of loading and have it ready there to be put on board; and it is only when he has done those things that the duty and the obligation of the shipowner in respect of the loading arises. These words in the exception are as large as any words can be; they mention 'strikes, frosts, floods, and all other un may avoidable accidents preventing the loading.' If, therefore, you are to carry back the loading to anything necessary to be done by the charterer in order to have the cargo ready to be loaded, no human being can tell where you are to stop. The bankruptcy, for instance, of the person with whom he has contracted for the supply of the iron, or disputes about the fulfilment of the contract, the refusal at a critical point of time to supply the iron, the neglect of the persons who ought to put it on board lighters to come down the canal for any distance, or to be brought by sea, or to put it on the railway, or bring it in any other way in which it is to be brought. All those things are of course practical impediments to the charterer having the cargo ready to be shipped at the proper place and time; but is it reasonable that the shipowner should be held to be answerable for all those things, and is that within the natural meaning of the word 'loading?' Are those things any part of the operation of loading? Nothing, I suppose, is better established in law with regard to mercantile cases of this kind than the maxim, 'Causa proxima, non remota spectatur." The stipulation that the ship shall be loaded "as customary" does not refer to the time to be taken in loading, so as to make the penalty for not loading in a given time applicable, but only to the manner of loading. There may be a breach of the stipulation if the vessel does not load in the customary manner, and damages may be recovered; but the 284 fact that the vessel in loading has occupied an unreasonable time, or exceeded any particular limit of time, would not be a breach of it. In Dunlop v. Balfour,1 Lord Esher, M. R. said :"I have no doubt, that the words to be loaded as customary,' only import a contract to load in a reasonable time; that damages for a breach of that contract are not properly the subject matter of lien; and that the Court will not, unless forced to do so, apply to them that part of the charter-party which gives a lien for demurrage." 2 These words have relation, not to the time, but merely to the mode of loading. In Lawson v. Burness, Pollock, C. B. said :-"It appears to me that the words 'customary manner,' mean the mode of loading, whether by a lighter or at the wharf." And that dictum is cited in Tapscott v. Balfour3 by Bovill, C. J., who said "That words providing that the ship should load in the usual and customary manner,' applied only to the mode of loading, and not to the place." And in Lockhart v. Falk it was stated that the words "that the vessel should load in the customary manner" were not equivalent to a provision that she should load in a certain number of days, or at a certain rate per day, for the purpose of applying the word demurrage to a detention beyond that period. These words do not admit of an addition, that she 1 L. R. (1892), 1 Q. B. 507; 61 L. J. Q. B. 354. 2 H. & C. 396. + L. R. 10 Ex. 132; 44 L. J. Ex. 105. may remain, if she does not load in the customary manner for a number of days on demurrage. Where a charterer agreed to load a vessel, when it arrived at a certain port, with a cargo of coals in the customary manner, and the question at the trial was, whether he had so loaded the vessel within a reasonable time, it was held, that the jury were rightly directed not to take into consideration a delay occasioned by a strike among the colliers and a dispute with a railway company, along whose line the coal had to be brought to the port for shipment, these not being matters contemplated by either party when the charter-party was made.' Where the charter-party stipulated that the ship "should proceed to Cardiff East Bute Dock and there load in the customary manner," it was held, that these words referred only to the customary manner of loading in that particular dock." discharged as In a similar manner the words "to be discharged To be with all despatch as customary," mean that the cargo customary. is to be discharged with all reasonable despatch, having regard to the actual circumstances and manner of discharging cargo customary at the port of discharge. Thus where by a charter-party the plaintiffs' ship was to proceed to a port named with a cargo, and there "be discharged with all despatch as customary, and ten days on demurrage over and above said lying days." The discharge of the cargo was de 1 Adams v. Royal Mail Steam Packet Co., 28 L. J. C. P. 33. layed 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 duty of providing and making proper use of sufficient means for the discharge of cargo, when a ship which has been chartered arrives at her destination and is ready to discharge, lies (generally) upon the charterer. If by the terms of the charterparty he has agreed to discharge it within a fixed period of time, that is an absolute and unconditional engagement, for the non-performance of which he is answerable, whatever may be the nature of the impediments which prevent him from performing it, and which cause the ship to be detained in his service beyond the time stipulated. If on the other hand there is no fixed time, the law implies an agreement on his part to discharge the cargo within a reasonable time, that is a reasonable time under the circumstances. If an obligation indefinite as to time is qualified or practically defined by express or implied reference to the custom or practice of a particular port, every impediment arising from or out of that custom or practice, which the charterer could not have overcome by the use of any reasonable diligence ought to be taken into consideration. These distinctions are 1 Castlegate S. S. Co. v. Dempsey, L.R.(1892,) 1 Q.B. 54; 61 L.J.Q.B. 620. 2 Postlethwaite v. Freeland, L. R. 5 App. Cas. 599; 49 L. J. Ex. 630. |