C. A.

1897

HELIOS

V.

would be prevented by the default of the charterers from discharging the ship, and demurrage would be payable for the consequent delay. That being the state of things with regard AKTIESELKAE to a charterparty in these terms if they stood alone, a custom appears to have been evolved among the persons engaged in EKMAN & Co. importing timber cargoes into the Thames by way of addition Lord Esher M.R. to the terms of the written contract. If that custom contradicts the express terms of the charterparty, then it is a bad custom so far as it is sought to apply it to a charterparty in such terms. But, if the custom is consistent with the terms of the charterparty, so that the two may fairly stand together, then the custom must be taken to be incorporated into the written contract, and the Court must construe that contract accordingly. In this case we have to consider whether a custom was proved, and if so, what it was, and whether such a custom was consistent with the terms of the charterparty in this case. The learned judge has found that, whereas without a custom both parties must take part in the operation of delivering the timber from the ship into the barges of the consignee, a custom was proved with regard to long lengths of timber by virtue of which both parties are not to take part in that operation, but the shipowner undertakes to perform it by himself without the aid of the other party. It is part of the operation of taking delivery of the cargo that the consignee or merchant should provide barges and bring them alongside in such a position that the timber can be delivered from the ship into the barge. The barges used were what are called "dumb barges "-that is to say, barges which with the exception of two small cabins at the ends of the barge, one for stowing the tackle of the barge and the other for the use of the bargemen, are altogether undecked and open for the reception of the cargo. The barges were brought alongside the ship by the consignees. The custom found is, as I have said, that in the case of long lengths of timber the shipowner alone has to perform the operation of delivery into the barges, which, if there were no custom, would have to be performed by both parties together. That operation cannot be performed by one man, but requires at least two, and it may be three or four men, to perform it.

C. A.

The way in which the operation has to be performed is that 1897 the piece of timber must be passed endways out of the portAKTIESELKAB hole, which would be higher than the bottom of the barge, down into the barge, and there must be some one at the lower EKMAN & Co. end of the piece of timber to move it round, so that the top end Lord Esher M.R. may come out of the port-hole and so be got clear of the ship

HELIOS

V.

and be let down into the barge. A sling is generally used for the purpose of gradually lowering that end of the piece of timber into the barge, and then it is easy to turn the other end, so that the whole piece of timber may go into the barge. It is obvious that it would be the natural and ordinary course of things to turn the piece of timber sufficiently to let it go pretty nearly lengthways into the barge, for, if the timber, as it came out of the port-hole, were put across the barge, opposite the port-hole, the port-hole would become blocked and other timber would be prevented from coming out. The whole of the cargo has to be delivered into the barges in that way, and the effect of the custom is that the process of delivering the timber into the barge, as I have described it, is not a joint operation, but a single operation to be performed by the shipowner alone. No doubt when timber is put into a barge without more care than is involved in merely putting it on board, the barge might be difficult to navigate, and she would not get so full a cargo as she would if the timber were properly stowed-that is, arranged in the barge after being put on board. What is the effect of the evidence as to the custom? The judge finds in plain terms, as to so much of the transaction as consists of delivery of the timber out of the ship into the barge, that it is to be wholly performed by the shipowner alone; but he does not find that the arranging of the timber when on the barge, so as to make the barge properly navigable, and to make the cargo of the barge as large as it can be, is to be done by the shipowner either alone or jointly with the charterer. In a case where there is no custom and the delivery is to be a joint operation, when the timber is delivered into the barge, arranging it so as to make the barge properly navigable and enable her to take as large a cargo as possible is not a part of the joint operation. When the joint operation of delivering the timber into the barge is

C. A.

1897

over, the shipowner would have nothing to do with the stowing of the timber on the barge, which must be done by the merchant in the barge. Here the judge has interpreted the AKTIESELKAB charterparty according to the custom, and has held that, instead

HELIOS

v.

of being a joint operation, the delivery of the timber into the EKMAN & Co. barge is an operation to be done by the shipowner only without Lord Esher M.R. the assistance of the consignee. I think the evidence supports his finding, and that the custom so found is a reasonable one.

Then the question is whether the custom so limited is contrary to the terms of the charterparty. I think not. It simply explains what delivery of the cargo to the consignee alongside is and how it is to be effected-namely, by the act of the shipowner alone instead of the joint act of both parties. I therefore think that the view taken by the learned judge was correct.

Then did the plaintiffs fail to perform the obligation which rested upon them under the custom? It was urged that the defendants claimed that the plaintiffs were not only bound to make delivery of the cargo as I have described, but were bound to stow it after it was in the barge. As I have said, I do not think they were so bound, and therefore the defendants required them to do what they were not bound to do. But that did not relieve the plaintiffs of the duty to do what they ought to have done. They were bound to put the cargo on board the barge; they neglected to do that, and, according to the finding of the learned judge, that neglect was the sole cause of the delay occasioned to the ship. That being so, I think the defendants were not liable for the demurrage claimed, and that this appeal must be dismissed. I can see nothing in any of the cases to which we have been referred that is inconsistent with what we are deciding in this case.

A. L. SMITH L.J. This is an action by shipowners against charterers for demurrage at the port of discharge. It is not disputed that the ship was delayed for six days beyond her laydays, and the question is whose fault it was that she was so delayed. The shipowners say that it was the charterers' fault. The charterers on the other hand say that it was not their fault, because they sent lighters for the purpose of unloading the

C. A.

1897

HELIOS

บ.

ship, but the shipowners in breach of the charter refused to load them; and that, if the shipowners had performed their duty AKTIESELKAB in accordance with the obligation imposed upon them by the charterparty coupled with the custom, there would have been EKMAN & Co. no delay; and therefore that they cannot maintain the action A. L. Smith L.J. for demurrage. The learned judge at the trial found upon the evidence that the whole of the delay was due to the refusal of the captain of the ship to put the timber into the barges as required by the custom: and I think the evidence supports that finding. Therefore, assuming the custom as found by the judge to be proved and to be applicable to this charterparty, the delay was due to the captain's default and not that of the defendants. The first question that arises is whether any and, if so, what custom was proved. The custom set up by the defendants in the first instance no doubt was that it was the duty of the owners of a ship bringing long lengths of timber into the port of London, not merely to unload them into the lighters provided by the consignees, but also to stow them when they were in the lighters. I think that they failed to prove a custom that the shipowner should stow the timber in the lighters, and the learned judge refused to find such a custom. He found that by the custom of the port of London in the case of long lengths of timber there is no delivery alongside under a charterparty like this until they have been placed by the shipowner into the lighters-not upon or across the lighters, but into them. It was contended that this custom was not proved. I think it was proved by several witnesses. It seems to me impossible upon the evidence to say that the learned judge was wrong in finding as he did as to this custom.

The next point taken was this. It was said that, even if such a custom exists, namely, a custom that long lengths of timber should be put by the crew of the ship into the barges, that custom contradicts the written term of the charterparty, which provides that the cargo is to be taken from alongside at merchants' risk and expense. I do not think that it does. The custom is merely to the effect that there is no right delivery from the ship's side till the long lengths of timber have been put into the barge. It is not sufficient as in the case of other

C. A.

1897

cargoes to sling the articles to be delivered over the ship's rail, which when lowered are received by the consignee below. A cargo of timber cannot be got out of the ship, unless there is AKTIESELKAE somebody from the ship in the barge to take the long lengths

HELIOS

v.

of timber which have come out of the port-hole. There is no EKMAN & Co. right delivery alongside until the timber is delivered by the A. L. Smith L.J. ship's crew into the barge. This question of delivery has in this case been mixed up a good deal with the question of stowage, which is not wonderful, seeing that the defendants sought to prove a custom that the shipowner was bound to stow the timber in the barge. But, when rightly apprehended, the evidence shews that the stowage is something distinct from the putting of the timber into the barge from the ship. It was argued by the plaintiffs' counsel that the evidence shewed that the barge could not be properly loaded, unless the timber was stowed at the same time. But I cannot find that this is proved by the evidence. No doubt the best way of loading the barge would be for the consignee to have men to stow the timber as it is delivered-that is to say, put into the barge by the crew of the ship. But, if the consignee does not think fit to have men for that purpose, I do not see how that does away with the shipowner's duty to deliver the timber into the barge. For the reasons above I do not think that the custom as found by the learned judge contradicts the charterparty. This proved custom differentiates this case from Petersen v. Freebody & Co. (1) It simply shews that there is no right delivery of the timber until it is put by the shipowner into the barge. I agree that the appeal should be dismissed.

CHITTY L.J. There are substantially two questions upon this appeal one with regard to the existence of a custom; the other whether the custom as found by the judge is inconsistent with the terms of the charterparty. It appears to have been alleged by the defendants that the custom in the case of ships discharging long lengths of timber in the port of London was that the shipowner was bound to stow the timber in the barges brought alongside by the receiver of cargo. The learned judge (1) [1895] 2 Q. B. 294.