v. the cargo? It is submitted that the master is entitled to land ERICHSEN the cargo at any convenient and proper place, to be kept for BARKWORTH. the holder of the bill of lading and at his risk. He could maintain no action against the master or ship-owner if he neglected to claim the goods within a reasonable time. This bill of lading does not embody the terms of the charter-party as to lay days and demurrage, but simply makes the goods deliverable on payment of freight. On such a bill of lading the ship-owner can maintain no action for demurrage: Smith v. Sieveking (1). If the bill of lading contains the terms " upon payment of freight and demurrage as per charter-party," the master is bound to wait during the lay days and demurrage days. (CROMPTON, J.: The charterer agrees that he himself, or the person who is the holder of the bill of lading, will discharge the cargo within the stipulated time. If that is not done, the master may within a reasonable time unload; but that is not a part of the contract, which is that the charterer shall be ready, by himself or the person who is holder of the bill of lading, to discharge the cargo.) Could the holder of the bill of lading have maintained any action. * * I am of opinion that the judgment of the *COURT below ought (1) 99 R. R. 841 (4 El. & Bl. 945). 283, 297). (4) 44 R. R. 714 (4 Bing. N. C. 314). [ *897 ] [ *898 ] to be reversed, as the defendants, according to their contract, are liable for the sum claimed. The contention on the part of the defendants is that they were ready to clear the ship, because they offered to take the goods without production of the bill of lading, and that if that offer had been accepted the master would not have incurred any liability or risk. I am, however, of opinion that the master would have incurred liability and risk, as, under the circumstances, the rights of the holder of the bill of lading extended beyond the time at which the offer was made. I think that the plaintiffs are entitled to recover, for the reasons given by my brother WATSON in his judgment in the Court below, and I agree with him that they are entitled to recover the full amount claimed. WILLIAMS, J.: I am of the same opinion. The law is correctly laid down in Smith's Mercantile Law, p. 294, 5th ed.: "The merchant must pay demurrage for any delay beyond the arranged period, even though not attributable to his fault, but to some unfore seen impediment to her loading or unloading, such as the crowded state of the docks; for he has expressly engaged and is bound by the terms of his own positive contract: so, though he may not have been apprised of the ship's arrival, or the bill of lading have not come to his hands, without which, or an indemnity, the master, as he has a right, refuses to deliver the goods." I can find nothing in this case to interfere with the right of the master to refuse to deliver the goods except on production of the bill of lading. CROMPTON, J.: I am of the same opinion. The question arises on the contract in the charter-party. The charterers entered into a contract by which they undertook *that their factors should load at Buctouche a full and complete cargo, and on the arrival of the ship at her port of discharge that they would be ready by themselves or their factors to unload; and they also undertook that the ship should be discharged within a certain time, or that they would pay at a certain rate for demurrage. When the ship arrived they were not ready to unload her, because they were never in a position which gave them a right to do so, and therefore they ought to pay for their breach of contract. It is no excuse that the charterers had some dispute with the holders of the bill of lading. The ship-owner has nothing to do with the persons whom the charterers have engaged to load the vessel. He has acted under the charter-party and taken the cargo on board; and the defendants are bound by their contract . CH . CH v. that they will be ready to discharge the ship, or that the persons ERICHSEN having the bill of lading will do so. Admitting that the property BARKWORTH. in the goods was in another person, the master, by the bill of lading, is liable to the person in whom the property vests. He has a right to demand the bill of lading or an indemnity, for by signing the bill of lading he binds himself to deliver the goods to the person who has the property in them. It is said that this inconvenience would arise, that the master would be obliged to keep the goods for an unlimited time. But in truth there. is no inconvenience. The charterers were to be allowed thirtyfive running days, and after that they were to have ten days on demurrage at 5l. per day, so that if the ship-owner recovered for the breach of contract he would be clearly entitled in respect of the demurrage days. Then, as to the not unloading after those days, the jury would have to estimate the damage, and if they found that there was any vexatious conduct on the part of the ship-owner, such as keeping the goods for his *own benefit, they would give him little damages. After the demurrage days he cannot keep the goods for an unlimited time, and then sue for damages. In this case I see nothing unreasonable in the conduct of the master, indeed it is quite reasonable that he should wait until after the demurrage days had expired; and I think that the defendants are liable both for the demurrage days and the detention days. CROWDER, J.: I am of the same opinion. The contract was between the ship-owner and the charterer; and the question is whether the ship-owner has performed his contract. He undertook to deliver the goods on production of the bill of lading: that was never produced to him, and therefore he was justified in detaining the goods. I entirely agree with the judgment of my brother WATSON. WILLES, J: I am of the same opinion. In deciding questions of this kind, we should decide on the assumption that the usual and ordinary course of business will go on, and that no master of a vessel will be likely to keep a cargo for an indefinite time. When a bill of lading is in existence, the master has no more to do with the charterer than a stranger, unless he produces the bill of lading. Judgment reversed. [ *900] 1859. April 27. [119] IN THE QUEEN'S BENCH. PARKINSON v. THE MAYOR, &c. OF (33 L. T. O. S. 119-120.) A local Act of Parliament authorised the respondents, when any street, not being a highway, was not sufficiently sewered, levelled, paved, flagged and channelled, to give notice to the respective owners of the premises fronting, &c. such street, to sewer, level, pave, flag or channel, and if the requirements of the notice were not complied with, the respondents might execute the works referred to in such notice, and recover the expenses from such owners. The respondents gave notice to appellants and others, owners of premises in a street not a highway, to "repair, form and pave the same: Held, that the notice was bad, because it did not sufficiently specify the works required to be done; and an order of justices for the payment of the expenses was accordingly quashed. THIS WAS a case stated for the opinion of the Court at the instance of the defendant, pursuant to the statute 20 & 21 Vict. c. 43. On the 23rd Dec., 1858, Thomas Ratcliffe Parkinson appeared, on summons, before certain justices of the peace for the borough of Blackburn, to answer a complaint made by the corporation on the 20th Dec., 1858, for that he, the said Thomas R. Parkinson, had neglected and refused, and did then neglect and refuse to pay to the said corporation the sum of 261. 17s. 3d., being the amount, with interest, which the said Thomas Ratcliffe Parkinson was liable to pay to the said corporation of Blackburn, as his just share and proportion of the charges and expenses attending the levelling, paving, flagging and channelling by the said corporation of a certain street there, called Greaves Street, and within the limits of the Blackburn Improvement Act, 1858, he, the said Thomas Ratcliffe Parkinson, being the owner of certain houses and buildings fronting, adjoining, and abutting upon such street. The said complaint was made under the provisions of the Blackburn Improvement Act, 1854, with which is incorporated the Towns Improvement Act, 1847. The 34th section of the Blackburn Improvement Act enacts that in case at any time any street, not being a highway, within the borough, whether fully made and built, or only partially made or built, or any part thereof, be not sufficiently sewered, levelled, paved, flagged and channelled to the satisfaction of the corporation, it shall be lawful for them (the corporation) at any time after the commencement of this Act to cause notice in writing to be given to the respective owners of the premises fronting, adjoin ing or abutting upon such parts of any such street as may be (1) Bayley v. Wilkinson (1864) 16 C. B. N. S. 161, 33 L. J. M. C. 161; Hall v. Potter (1869) 39 L. J. M. C. 1, 21 L. T. 454. And see Public Health Act, 1875, s. 150. v. insufficiently sewered, levelled, paved, flagged or channelled, PARKINSON requiring them to sewer, level, pave, flag or channel the same MAYOR OF within a time to be specified in such notice; and if the require- BLACKBURN. ments of such notice be not complied with the corporation may, if they shall think fit, execute the works mentioned or referred to therein, and the expenses incurred by them in so doing shall be paid by the owners, according to the frontage of their respective premises; and such expenses, together with interest after the rate of 5l. per cent. per annum, after the expiration of three calendar months from the completion of the street, may be recovered from the last-mentioned owners as damages. The 210th section of the Towns Improvements Clauses Acts, 1847, incorporates the clauses of the Railways Clauses Consolidation Act, 1845, in respect to the recovery of damages not specially provided for, and penalties, and to the determination of any other matter referred to justices; and the 104th section of the latter Act provides that where any damages, costs, or expenses are directed to be paid, and the method of ascertaining the amount is not provided for, such amount, in case of dispute, shall be ascertained and determined by two justices. Upon the hearing of the said complaint, it was proved, on behalf of the said complainants, that on the 17th Sep., 1857, a notice by direction of the complainants, and signed by the town clerk, was served on the defendant personally at his dwelling-house, of which the following is a copy: "To the owner of the soil of a street called Greaves Street, in the borough of Blackburn, and to the owners and occupiers of the houses there, and to each and every of such owners of the soil, and owners and occupiers of houses liable to execute the works in this notice mentioned, or any of them, or any part of them, or of any of them, I do hereby give you notice. that the corporation of the borough of Blackburn, under the provisions of an Act of Parliament passed in the session of Parliament holden in the 17th and 18th years of the reign of her Majesty Queen Victoria, intituled 'An Act for transferring to the mayor, aldermen and burgesses of the borough of Blackburn, all the powers and property now vested in the Blackburn Improvement Commissioners, and certain powers and property by the private Act of the 4th and 5th years of the reign of her present Majesty, chap. 46, invested in the overseers of the poor of the township of Blackburn, authorising the corporation to purchase the property of the Blackburn Waterworks Company, and conferring on them further powers for the improvement and regulation of the borough, and for other purposes,' R.R.-VOL. CXVII. 66 |