1868 FORD V. COTESWORTH, defendants would be liable for the seven days during which the ship was detained at her berth doing nothing. [In addition to the cases noticed in the judgment the following cases were cited: Paradine v. Jane (1), Hudson v. Ede (2), Barret v. Dutton (3), Phillips v. Irving (4), Goodwyn v. Cheveley. (5)} Cur. adv. vult. Dec. 17. The judgment of the Court (Cockburn, C.J., Blackburn, and Lush, JJ.), was delivered by BLACKBURN, J. (6) This was an action to recover compensation in damages for the detention of the plaintiffs' ship by the defendants. On the trial before the Lord Chief Justice, at Guildhall, it арpeared that the defendants chartered the plaintiffs' ship from Liverpool to Lima or Valparaiso. By the charterparty a specified number of days were agreed upon for loading the vessel at Liverpool, but there was no such agreement as to the discharge at her port of destination, the charterparty merely providing that the vessel should proceed there, or as near as she could safely get, and there deliver the cargo in the usual and customary manner, agreeably to bills of lading, and so end the voyage. The contract being thus silent as to the time which is to be occupied in the discharge, the question arises what is the agreement which the law implies in such a case. It appeared on the trial that the vessel duly arrived at Callao, the port of Lima, and began to discharge in the manner usual there. The custom-house authorities will not allow any cargo to be landed except through the customs; and in consequence of their dilatoriness, and the general sluggishness of the population, the ordinary discharge of a vessel at Callao is very slow. The vessel remained discharging till, news having arrived of the approach of the Spanish fleet, the customs authorities suspended all landing of goods, in order that they might remove those already in the custom-house out of the reach of the apprehended (1) Aleyn, 26, 27. (2) Law Rep. 3 Q. B. 412. (4) 7 M. & G. 325. (5) 4 H. & N. 631; 28 L. J. (Ex.) 298. (6) Blackburn, J., being engaged at Nisi Prius, the judgment was read by Hannen, J. bombardment. The vessel consequently lay with the cargo partly The Lord Chief Justice ruled that during the period when the vessel was not at Callao at all, there was no claim for damages. He reserved for the Court the question whether the plaintiffs were entitled to recover for the detention during the seven days when the vessel was at her discharging berth, but owing to the unusual state of things, the customs authorities would not allow the discharge to proceed. The damages for that detention, if the plaintiffs were entitled to recover, were agreed to be 1057. As to the rest of the detention, he left the question to the jury whether the detention was occasioned by any thing beyond the usual and ordinary delays of the port. The jury found on this point for the defendants. Mr. Field obtained a rule to enter the verdict for the plaintiffs for 1057., pursuant to the leave reserved, or for a new trial, on the ground that the verdict was against the weight of evidence. No complaint was made of the direction in point of law. On the argument in last term the Court refused to disturb the verdict, and took time to consider as to the point reserved. We have come to the conclusion that the plaintiffs are not entitled to recover. The question depends upon what the contract implied by law is, where there is a charterparty silent as to the time to be occupied in the discharge. We agree that whenever a party to a contract undertakes to do some particular act, the performance of which depends entirely on himself, so that he may choose his own mode of fulfilling his undertaking, and the contract is silent as to time, the law implies a contract to do it within a reasonable time under the circumstances. And if some unforeseen cause, over which he has no control, prevents him from performing what he has undertaken within that time, he is responsible for the damage. But where the act to be done is one in which both parties to the contract are to concur, and both bind themselves to the performance of it, there is no principle on which, in the absence of a stipulation to that effect, either expressed by the parties, or to be collected from what they have expressed, the damage arising from an unfore 1808 FORD v. COTESWORTH. seen impediment is to be cast by law on the one party more than on the other; and consequently we think that what is implied by law in such a case is, not that either party contracts that it shall be done within either a fixed or a reasonable time, but that each contracts that he shall use reasonable diligence in performing his part. It is on the application of this principle to a charterparty that the present question depends. We think that delivering cargo is as much the duty of the shipowner as of the merchant; and consequently that the contract, implied by the law, in the absence of any stipulation, in a charterparty, is that each party shall use reasonable diligence in performing his part of the delivery at the port of discharge, the merchant being ready to receive in the usual manner, and the owner by his captain and crew to deliver in the usual manner. So that there is no contract implied by law on the part of the shipowner to allow his vessel to be kept there for the usual time, if by reasonable diligence on the part of the merchant, the cargo might be sooner taken away, and no contract implied by law on the part of the merchant to take the cargo out within such usual time, if he could not by reasonable diligence perform it: though very commonly there are stipulations to that effect. There is not much authority bearing on the point on which we have had most difficulty. We think it firmly established, both by decided cases and on principle, that where a party has either expressly or impliedly undertaken, without any qualification to do anything, and does not do it, he must make compensation in damages, though the performance was rendered impracticable by some unforeseen cause over which he had no control. And in a charterparty the merchant, generally, expressly contracts that he will provide a cargo to be put on board. The shipowner has nothing whatever to do with the mode in which the merchant is to fulfil this contract. Accordingly where the merchant is prevented by an unforeseen cause from fulfilling it, the shipowner is entitled to compensation in damages: Barker v. Hodgson. (1) In the present charterparty, as is generally the case, the parties have agreed upon a specified number of lay days for putting the cargo on board. Where a charterparty is silent, as it rests exclusively on the merchant to procure the cargo, the law would imply a (1) 3 M. & S. 267. 1868 FORD V. contract to do so within a reasonable time after the vessel is ready to receive cargo. And we agree that in estimating what is the reasonable time within which the cargo is to be provided, we are COTESWORTH. to consider what is a reasonable time under ordinary circumstances; and not to take into account any peculiar difficulty which may have arisen from the mode in which the merchant has chosen to procure the cargo: Adams v. Royal Mail Steam Packet Company (1); Kearon v. Pearson. (2) It may be different if the contract is framed with reference to any peculiar state of things: Harris v. Dreesman. (3) It would rather appear from the declaration set out in the report of Adams v. Royal Mail Steam Packet Company (4) that the contract expressly provided for a number of lay days, and ten days on demurrage; but perhaps those were only allowed for the discharge of the cargo at St. Thomas, otherwise no question as to any implication of a reasonable time could have arisen. However this may have been, it is pointed out by Williams J. (4), “that the circumstances relied on to excuse the breach are circumstances which impede, not the loading, but the procuring the coals wherewith to load the vessel," and that was unquestionably true; the case was clearly rightly decided, but the present point did not arise. In Kearon v. Pearson (5), Wilde, B., says that the stipulation in that case "that the vessel shall be loaded with usual despatch," does not relate to the facilities which the charterers may have in their trade of getting the coal alongside the vessel (which by express stipulation was to be loaded in the Nelson Dock), but to the putting it on board; but that even if it were otherwise, there was an express stipulation that it should be loaded with usual despatch, not with usual diligence. In this also we perfectly concur, but that case has no bearing on the question of what is implied when the contract is silent as to the time for discharging the cargo. Whenever in the charterparty it is agreed that a specified number of days shall be allowed for unloading, and that it shall be lawful for the freighter to detain the vessel for that purpose a (1) 5 C. B. (N.S.) 492; 28 L. J. (C.P.) 33. (2) 7 H. & N. 386; 31 L. J. (Ex.) 1. (3) 23 L. J. (Ex.) 210. (4) 5 C. B. (N.S.) at p. 494; 28 L. J. (C.P.) at p. 34. (5) 7 H. & N. at p. 390. 1868 FORD V. COTESWORTH. further specified time on payment of a daily sum, this constitutes a stipulation on the part of the freighter that he will not detain her beyond those two specified periods: Randall v. Lynch (1); Lord Tenterden (Abbott on Shipping, 5th ed., p. 181; 11th ed., p. 268), says: "And when the time is thus expressly ascertained and limited by the terms of the contract, the merchant will be liable to an action of damages, if the thing be not done within the time, although this may not be attributable to any fault or omission on his part; for he has engaged that it shall be done." The last sentence is put in italics by Lord Tenterden, indicating that he thought it the reason why the merchant was liable. In the present case the time for discharging is not so limited; all that is said is, that the cargo shall be discharged in the usual and customary manner; that is to say, that the master and crew shall take that part which by the custom of the port falls on them, and the freighter do the rest. And as we have before observed, it is difficult to see on what principle delay in an act in which both sides are to concur, is, in the absence of a stipulation in the contract, to fall on one more than the other, if neither be in fault. In Rodgers v. Forresters (2), the express contract was that “the said freighter should be allowed the usual and customary time to unload the said ship at her port of discharge;" and in Burmester v. Hodgson (3), where the contract was silent, Mansfield, C.J., said that the law could only raise an implied promise to do what was in Rodgers v. Forresters (2) stipulated by an express covenant, viz., to discharge the ship in "the usual and customary time.” On this Mr. Field based his argument that the charterparty was to be construed, as if a specified number of lay days for discharging the cargo had been inserted in it, the only difference being that instead of the parties fixing the number of days they left that to be ascertained by subsequent inquiry as to what was usual and customary in the port for such a vessel. And if that is so, it would follow that the plaintiffs are entitled to recover; for it is clear that delay resulting from a threatened bombardment was neither usual nor customary. But we are aware of no authority for saying that the law implies (1) 2 Camp. at p. 356; 12 East, 179. |