1897 In re RAATZ. Ex parte RAATZ. Vaughan 'Williams J. which would be untrue if the bills were not in their hands. I may say that I do not think the petition is in proper form: it ought to have mentioned the bills; and if any suggestion had been made that the petitioning creditors were not the holders of the bills, I should have given the debtor the opportunity of proving that fact. But that it was the fact was not suggested. Then, secondly, it was said that even if the petitioning creditors were the holders of the bills, the fact that the bills had not matured at the time of presenting the petition prevented them from relying on the original debt. In that contention I do not agree. Sect. 6, sub-s. 1 (b), requires that the debt shall be "a liquidated sum payable either immediately or at some certain future time." And it was objected that the cause of action on the original debt was suspended during the currency of the bills, and that the original debt only became payable on a contingency in the event of the dishonour of the bills. But in my view the subsequent act of bankruptcy put an end to that suspension, and determined the period of credit which, according to the law merchant, was given by the taking of the bills. The principle which has enabled courts to decide that goods may be stopped in transitu in the event of the purchaser's insolvency, notwithstanding that he may have given bills for the price, seems to me to equally apply to the case of a bankruptcy petition. And I think that the fact of bills being given for the price of goods purchased and not being yet matured does not, in the event of an act of bankruptcy supervening, prevent the price from being a debt payable immediately within the meaning of s. 6, sub-s. 1 (b). WRIGHT J. I am of the same opinion. I think that where a creditor holds a debtor's acceptance for the price of goods sold, and the debtor commits an act of bankruptcy, the creditor is entitled to treat the bill as dishonoured because the act of bankruptcy puts it in the power of the other creditors to force on dishonour of the bill. Appeal dismissed. Solicitor for debtor: R. White, for J. Ivor Evans, Swansea. J. F. C. [IN THE COURT OF APPEAL.] AKTIESELKAB HELIOS v. EKMAN & CO. Ship-Charterparty-Discharge of Timber Cargo-Custom-Inconsistency with Contract-"To be taken from alongside at Merchants' Expense." A custom that, in discharging long lengths of timber from a ship, the shipowner is bound to put the timber into lighters brought alongside by the consignees is not inconsistent with a charterparty which provides that the timber shall be taken from alongside at merchants' expense. APPEAL from the judgment of Collins J. in an action tried before him without a jury. The action was by shipowners against charterers for six days' demurrage under a charterparty. By the charterparty it was agreed between the plaintiffs and the defendants, that the plaintiffs' ship Helios should load at Ramvik a cargo of deal and/or batten and/or board-ends firewood, which was to be "brought to and taken from alongside the ship at merchants' risk and expense," and therewith proceed to one of the usual wood docks in the River Thames as ordered on arrival at Gravesend. The charterparty allowed sixteen running days (Sundays and holidays excepted) for loading the ship at the port of loading, and the like days for discharging her at the port of delivery, and ten days on demurrage over and above the said laying days at 81. per day. A cargo having been loaded in pursuance of the charterparty, the ship sailed from Ramvik, and, on reaching Gravesend, was ordered to proceed to the Regent's Canal Dock. She arrived in the dock on Friday, November 13, 1896, and was in berth and ready to discharge on the evening of that day. On the next day no barges came alongside to receive the cargo. On the following Monday barges sent by consignees of cargo were brought alongside, but the captain refused to begin discharging, because there were no men on the barges to receive the timber and stow it in the barge. The defendants asserted that, by the custom of the port of London, in the case of a ship discharging timber in that port the obligation lay upon the shipowner of stowing C. A. 1897 April 29; C. A. long lengths of timber, of which the cargo in question was 1897 partly composed, in the lighters brought alongside by the conAKTIESELKAB Signees for the purpose of receiving the cargo. The consignees. HELIOS v. ultimately sent men to receive and stow the timber in the barges. EKMAN & Co. The unloading of the ship was not completed until December 8. The learned judge found upon the evidence that there was a custom in the port of London by which, in the case of a ship discharging long lengths of timber, the shipowner was bound to put the timber into lighters in such a way and to such an extent that the lighters might fairly be deemed to be loaded ; but he held it unnecessary for the purposes of the case to decide whether the obligation imposed by the custom upon the shipowner extended to stowing the timber in the barge in the sense of arranging it so that the barge might be conveniently navigated and would be loaded to her full capacity. He held that the custom as found by him was not inconsistent with the charterparty, and he found that the delay in unloading the ship had been occasioned by the refusal of the captain to perform the obligation imposed upon him by the custom of putting the timber into the barges. He therefore gave judgment for the defendants. Robson, Q.C., and Carver, for the plaintiffs. The action for demurrage is maintainable. The delay was caused by the default of the defendants in not having men in the barges to receive the cargo and stow it so that the barges might be properly loaded. The evidence does not support the finding of the learned judge as to the custom. Assuming however that it does, the custom as found by him is inconsistent with the term of the charterparty by which the cargo is to be taken from alongside at merchants' risk and expense. The custom that the defendants have all along contended for is that the shipowner is bound to stow the timber on board the barge. The learned judge no doubt did not find in terms that the custom imposed an obligation to stow on the shipowner, but he has found that the custom is that the shipowner should put the long lengths of timber into the barge in such a way and to such an extent that she may fairly be said to be loaded. But C. A. 1897 HELIOS V. the evidence shewed, and it is obvious, that the loading of the barge must involve some arrangement of the timber on the barge: she could not be loaded by dropping the timber into her AKTIESELKAB pell-mell; and it is contended that a custom which imposes on the shipowner the obligation of doing anything to the timber EKMAN & Co. beyond delivery, i.e., putting it clear of the ship and into the barge, is contrary to the term of the charterparty to the effect that it is to be taken from alongside at the merchants' expense. The defendants were by the charterparty to take the cargo from alongside. To do that in barges must involve some arrangement of the timber on the barge in the nature of stowage, and the defendants had no one to perform this operation. The defendants never claimed that the shipowners should put the cargo into the barges without stowing it. The matter in dispute between the parties which really occasioned the delay was whether the shipowners or the charterers were bound to stow the cargo on the barges. It would have been useless to commence putting the timber into the barges when there was no one there for the consignees to stow it, for the stowing must necessarily be done as the timber is delivered into the barge. Consequently the delay was really wholly occasioned by the default of the defendants. [They cited Petersen v. Freebody & Co. (1); The Nifa (2); Holman v. Wade. (3)] Joseph Walton, Q.C., and R. D. Isaacs, for the defendants. According to the general law apart from custom all the shipowner is bound to do is to offer the cargo across the ship's rail, and the operation of delivering is a joint act to be performed by the shipowner and charterer or consignee. That was the effect of the decision in Petersen v. Freebody & Co. (1), in which case no custom was proved. The custom found in this case is in substance that the delivery is to be effected in the case of long lengths of timber by the shipowner putting the timber into the barge. It is not found, nor is it contended for the purposes of this case, that the shipowner is bound to stow the timber in the sense of arranging it in the barge so that it will hold as (2) [1892] P. 411. (1) [1895] 2 Q. B. 294. (3) The Times, May 11, 1877. C. A. 1897 HELIOS V. much as it possibly can, but merely that he is bound to put so much timber into the barge as will fairly load it. There is AKTIESELKAB nothing in the custom as found by the judge inconsistent with the terms of the charter. It merely explains what is a good ERMAN & Co. delivery alongside, leaving the obligation of the defendants to take from alongside untouched. The case of The Nifa (1) is not in point. There the alleged custom imposed upon the shipowner the obligation of carrying the cargo across a space between the ship and the quay, and therefore was held to be inconsistent with the term that the cargo was to be taken from alongside at merchants' expense. The judge found that the delay was altogether occasioned by the refusal of the captain to perform the duty imposed by the custom on the shipowners. The fact that the defendants may have made an excessive demand on the captain, namely, that he should stow the timber on the barges, could not exonerate the shipowners from the performance of their obligation to put the timber into the barges. Robson, Q.C., in reply. LORD ESHER M.R. In this case the plaintiffs have brought an action for demurrage under a charterparty. They allege that their ship was delayed at the port of discharge by reason of the default of the defendants in not having men in the barges alongside ready to take delivery of the cargo. It is for the plaintiffs to prove their case. If the written terms of the charterparty stood alone, it has been held, and I think rightly held, that, upon the true construction of a charterparty in those terms, the delivery of the cargo from the ship into barges or on to a quay is a joint operation, that is to say, neither party is bound to do it alone. It is to be a joint act, and, therefore, if one party is not there to perform his part in it, that prevents the other party from performing his part. Therefore, upon written terms of the charterparty standing alone, the captain of the ship would not be bound to begin to deliver the cargo into the barges, unless the charterers had men there to assist in the joint operation; and, if they were not ready and willing to take part in it, the captain being ready and willing to do so, he (1) [1892] P. 411. the |