Gambar halaman
PDF
ePub
[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][ocr errors][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][merged small]

DEMURRAGE DEMURRAGE, properly so called, is the sum which is fixed by the contract of carriage as a remuneration to the shipowner for the detention of the ship beyond the number of days allowed for loading or unloading (a). The amount is usually calculated at so much per day; and the number of days during which the ship may be detained on demurrage is also generally limited by

(a) Where no time is named there is an implied contract that the ship should be discharged in a reasonable time. Fowler v. Knoop, 4 Q. B. D. 299. Whenever in the charter-party it is agreed that a specified number of days shall be allowed for loading, commonly called "lay days," and that it shall be lawful for the freighter to detain the vessel for that purpose a

further specified number of days, on payment of demurrage, commonly called demurrage days, this constitutes a stipulation on the part of the freighter that he will not detain the ship for the purpose of loading beyond the demurrage days. Ford v. Cotesworth, L. R., 4 Q. B. 127; 5 Q. B. 544; Nelson v. Dahl, per Brett, L. J., 12 Ch. D. at p. 583.

the contract (b). When the ship is detained by the freighter beyond the days of demurrage, a claim arises for unliquidated damages for the subsequent detention, and the rate which is agreed upon for the demurrage becomes primâ facie, but not necessarily, the measure of this compensation (c). It sometimes occurs that no demurrage is mentioned in the charter or bill of lading, but in these cases damages for detention or for breach of some provision as to delay in loading or unloading may become payable, and these damages are not uncommonly, though inaccurately, spoken of as demurrage (d).

payment.

Although the liability to pay demurrage depends almost in General rules every case upon the terms of the particular contract, yet there as to its are some general principles which regulate contracts of this description which require notice.

ment of obli

The right to demurrage or to damages for detention, whether Commenceat the port of loading or at the port of discharge, cannot arise gation to load until the shipowner has placed his vessel at the disposition of the or unload. charterer at the place of loading or discharge according to the terms of the contract of affreightment. The ship must be at the place named in the contract of affreightment, and must be ready, so far as she is concerned, there to load or unload as the case may be, before the obligation of the charterer to load or unload attaches; and whatever period the charterer may be entitled to occupy in loading or unloading must be reckoned from that date.

If the place named is a port and ships customarily load or unload only at some particular parts of the port, the obligation of the merchant to load or unload does not commence until the ship has arrived at some part of the port where vessels usually load or unload, because it must be taken that that is the place which by custom is intended by the words in the charterparty (e). But if the charter-party describes a more limited

[blocks in formation]

(e) Brereton v. Chapman, 7 Bing. 559; Kell v. Anderson, 10 M. & W. 498. In all these cases, it seems to be open to the consignee to show that by a custom of the port of discharge the lay days commence only when the ship has arrived at a particular place in the port. See Norden Steam Company v. Dempsey, 1 C. P. D. 654, where the shipowner, although he was a foreigner, was allowed to give in evidence a custom of the port of

space, as a dock or quay, then the liability of the charterer to load or unload does not commence until the ship has arrived at the dock or quay named, and is then ready to perform her part in delivering the cargo (f).

In cases where it has been provided that a ship shall discharge at a particular place in a port, or wharf, or as near thereto as she can safely get, it has been held that the liability of the charterer to unload does not commence until the vessel arrives at the place named, if the delay in getting to it is occasioned only by the ordinary tides and course of navigation (9). But where a ship is chartered to proceed to a private dock, or so near thereto as she may safely get, and she is unable to obtain admission to the dock, not by reason of any of the usual. accidents of navigation, but by reason of the regulations of the dock, which render it impossible for the ship to gain admission without such delay as would, having regard to the interest of the parties to the adventure, be wholly unreasonable, the shipowner is to be considered as prevented from entering the dock by a permanent obstacle, and he may require the charterer to take delivery of the cargo at the nearest convenient place to the entrance of the dock (h).

Some difficulty has arisen in cases where, by the stipulations in the charter-party, the ship was required to proceed to a named dock, there to load or unload, and the ship having arrived in the dock, has been ready to unload, but by reason of all the available berths being occupied has been unable to

It

Liverpool, that the lay days of timber ships commence only on the mooring of the ship at the quay where she is allowed to discharge. In Brown v. Johnson, 10 M. & W. 331, it was held that the lay days did not commence until the ship arrived in dock. seems to have been assumed or proved that the usual place of unloading all ships at the port of discharge was in dock. See per Brett, L. J., Nelson v. Dahl, 12 Ch. D. at p. 586. If there are in the named port more places than one where vessels customarily discharge, the charterer has the option of selecting the particular place, and if he exercises his option in due course the voyage cannot be considered at an end until the ship has arrived at the place named by him. But it has been held by the Court of Exchequer Chamber in Ireland, in a case where a vessel was ordered to the port of Newry, and

[blocks in formation]

(f) Tapscott v. Balfour, L. R., C. P. 46; and see the judgment of Brett, L. J., in Nelson v. Dahl, 12 Ch. D. 568. See also M'Intosh v. Sinclair, L. R. Irish, 11 C. L. 456; Hillstrom v. Gibson, 8 Sess. Ca., 3rd series, 463; Dickinson v. Martini, 1 Sess. Ca., 4th series, 1185. See also ante, p. 320, note (ƒ).

(g) Parker v. Winlow, 7 E. & B. 942, and Bastifell v. Lloyd, 1 H. & C. 388; Brown v. Johnson, 10 M. & W. 331.

(h) Nelson v. Dahl, 12 Ch. D. 568. But this case is now under appeal. affe &asip. Ca.

obtain a berth for loading or unloading without delay; and so the loading or unloading has been delayed beyond the stipulated number of lay days. In nearly all these cases it has been held that the responsibility of providing a berth rests not with the owner, but with the charterer; and although the shipowner is, subject to the considerations already mentioned, responsible for any delay that may occur in getting his vessel into the specified dock, yet, if the ship once enters into the dock and is there ready to discharge, the charterer is responsible for any delay that may occur by reason of there being no berth to receive her (i). But in a recent case, where a ship was chartered to proceed with cargo to "the port of Dundalk quay," and when she arrived at the quay the only berth alongside the quay was occupied by another vessel, and delay occurred before she could obtain that berth, it was held that the obligation of the charterer to unload did not commence until the ship was moored in the berth alongside the quay (k).

(i) See per Bramwell, L. J., Davies v. McVeagh, L. R., 4 Ex. 265. In that case, the charterer agreed to load on board the plaintiff's ship a cargo of coals, in one of two specified docks, within a specified number of lay days, and on the 20th November, as a matter of favour granted by the dock authorities, the ship was admitted into one of the named docks; but in consequence of the regulations of the dock she was unable to obtain a berth until the 5th December. It was held, by Brett, L. J., that the lay days commenced from the day when the ship entered the dock, and this ruling was upheld by the Court of Appeal. In Tapscott v. Balfour, L. R., 8 C. P. 46, it was agreed by charter-party that the plaintiff's ship should proceed to any Liverpool or Birkenhead Dock as ordered by the defendants, and there load in the usual and customary manner, at the rate of 100 tons per working day. The defendants directed the ship to proceed to the W Dock. In that dock coals were more usually loaded from "tips," though they were not unfrequently loaded from lighters. The ship was ready to enter the dock on the 3rd of July, but by the dock regulations she was not allowed to enter the dock until the 11th of July, but she could not get under the "tips" for some time after she entered the dock, owing to other vessels being in turn before her. It was held, that the lay days commenced

from the time when the ship entered
the dock. The following passage in
the judgment deserves attention. "The
rule is, that when a port is named in
a charter, the lay days do not com-
mence upon the arrival of the vessel
in the port, but upon her arrival at
the usual place of loading in the port,
not the actual berth at which she
loads, but the dock or roadsteads where
Toading usually takes place. If when
she arrives there the place is so crowded
that she cannot load, the loss must
fall on the charterer; the shipowner
has done all that he was required to
do when he has taken his vessel to the
usual place of loading in the port."
See, however, Ashcroft v. Crow Orchard
Colliery Company, L. R., 9 Q. B. 540.
In the report of this last case, it does
not appear clearly what were the
exact provisions of the charter-party
as to the place of loading.
also Dall' Orso v. Mason, 3 Sess. Ca.,
4th series, 419. See the observations
of Brett, L. J., in Nelson v. Dahl,
12 Ch. D. at p. 588. In the last-
mentioned case, one of the judges
of the Court of Appeal seemed to
incline to the opinion that if the place
named in the charter-party was a
private dock or quay, the voyage ended
where the public highway ended, and
that the obligation was upon the
charterer to procure the admission of
the ship into the dock. See the judg-
ment of James, L. J., at p. 603.

(k) Strahan v. Gabriel, 26th June,

See

[merged small][ocr errors][subsumed]
[merged small][ocr errors]

Where the freighter is bound by the terms of the charterparty to load a cargo "in the customary manner," or in regular and customary turn," no time being mentioned, this means that the freighter shall perform his part of the loading according to the usage of the port, and within a reasonable time or in customary turn, without reference to unforeseen difficulties in procuring the cargo or getting it to the place of loading; and if the loading is delayed beyond a reasonable time by these causes, although beyond his control, the freighter is not excused (1).

1879, tried at Newcastle before Brett, L. J., not reported, but referred to in the judgment in Nelson v. Dahl, 12 Ch. D. at p. 590. The ship was chartered to discharge at the "port of Dundalk quay ;" she arrived at Dundalk quay, and moored at the quay, that is, her warps were carried to the quay, and she lay alongside a vessel that occupied the only berth alongside the quay. The ship was, so far as she was concerned, ready to discharge, and her master offered to discharge either into lighters or across the vessel which occupied the quay berth, if the charterer would pay for the stage and labour. There was evidence that ships at Dundalk usually discharged alongside the quay. The charterer refused to unload until the ship was moored in the berth alongside the quay, and the unloading of the ship was delayed until the vessel which already occupied the berth alongside the quay completed her loading. Brett, L. J., held, at Nisi Prius, that the obligation of the charterer to unload did not commence until the ship was moored alongside of the quay, and this ruling was upheld by the Queen's Bench Division. But see La Cour v. Donaldson, 1 Sess. Ca., 4th series, 912.

(1) Adams v. The Royal Mail Steam Packet Company, 5 C. B., N. S. 492; Fenwick v. Schmalz, L. R., 3 C. P. 313. See, however, Harris v. Dreesman, 23 L. J., Ex. 210. If the ship is to be unloaded in "the usual and customary time," the freighter is not liable to pay for a detention caused merely by the crowded state of the docks. Rodgers v. Forresters, 2 Camp. 483; Burmester Hodgson, ib. 488. See observations on the dictum of Mansfield, C. J., in the latter case in Ford v. Cotesworth, L. R., 4 Q. B. 127.

V.

In Tapscott v. Balfour, L. R., 8 C. P. 46, where the words were "load in the usual and customary manner," a

[ocr errors]

cargo of coals "at the rate of 100 tons per working day," the Court seemed to be of opinion that the words "load in the usual and customary manner applied only to the mode of loading when the vessel had arrived at the loading berth, and that they had no reference to a detention outside the loading place. See also per Pollock, C. B., in Lawson v. Burness, 1 H. & E. 400; and per Brett, L. J., in Nelson v. Dahl, 12 Ch. D. at page 588. In Ashcroft v. Crow Orchard Colliery Company, L. R., 9 Q. B. 540, the Court expressed an opinion that the words "to be loaded with the usual despatch of the port" imported an absolute obligation on the part of the charterer to load with the usual despatch of the port, and covered the whole period from the time when the vessel at the port was placed at the disposal of the charterer there in a condition to receive her cargo, and that the charterer could not excuse himself from the delay caused by a detention which arose from his having, on the arrival of the ship, as many vessels in the dock as he was entitled to by the regulations.

In Postlethwaite v. Freeland, L. R., 4 Ex. D., affirmed by the House of Lords 5 App. Ca. 599, the charter-party provided that the cargo should be taken from alongside at merchant's risk and expense, and should be discharged with all despatch according to the custom of the port. According to the custom of the port, vessels were usually discharged by lighters, but when the plaintiff's ship arrived at the port, in consequence of all the lighters at the port being engaged in discharging other vessels, the charterer was unable to begin his discharge until twenty-four working days had elapsed: it was held that the charterer was not liable for the delay; that he was only bound to use due despatch, having regard to the existing

« SebelumnyaLanjutkan »