for more days, sometimes limited in number, and for each of these days he is to pay so much. What he pays for these additional days he is said to pay for Demurrage. In construing these rights and obligations, courts regard not only the right of the owner to compensation, but the principle of public policy which forbids the wanton and unnecessary idleness of the ship.

vent.

A delay may be by compulsion; as by capture, or embargo, or any act of government, or being frozen up, or any absolute disability of the charterer, or of the consignee, which he cannot preThe question arises, whether such a delay gives to the owner a claim for demurrage. This question cannot certainly be answered on authority, as the cases are in conflict. We think, however, the better rule to be, that such a detention gives the owner such a claim, and that it is not confined to a voluntary detention. (r)1

(r) A delay by capture or compulsion was once regarded as giving no claim for demurrage. Douglas v. Moody, 9 Mass. 555. See Duff v. Lawrence, 3 Johns. Cas. 162. But now the rule seems to be that the consignees shall pay demurrage, although not to blame, provided the owner be not in fault. Leer v. Yates, 3 Taunt. 386; Harman v. Gandolph, Holt, N. P. 35; Randall v. Lynch, 2 Camp.

352; s. c. 12 East, 179; Benson v. Blunt, 1 Q. B. 870; Taylor v. Clay, 9 Q. B. 713. As by frost, Barret v. Dutton, 4 Camp. 333, tide, Clendaniel v. Tuckerman, 17 Barb. 184; Brown v. Ralston, 4 Rand. 504, 9 Leigh, 532,- any act of government, Bessey . Evans, 4 Camp. 131; Hill v. Idle, id. 327; Bright v. Page, 3 B. & P. 295, n.; Brooks v. Minturn, 1 Cal. 481; Barker v. Hodgson, 3 M. & S. 267.

1 "In relation to the time for unloading, three forms of charter-parties are in common use. One form specifies a limited period of days or other time within which the loading is to be completed; and under that form it is settled law that the charterer must pay for a detention by a strike or otherwise beyond that period, unless a different intention has been expressed, or the detention is the fault of the ship-owner himself or of persons for whose conduct he is to be held responsible. Budgett v. Binnington, [1891] 1 Q. B. 35; Porteus v. Watney, 3 Q. B. D. at p. 543; Thiis v. Byers, 1 Q. B. D. 244; Postlethwaite v. Freeland, 5 App. Cas. 599. Another form is silent as to the time in which the unloading is to be completed; and under that form it seems equally settled that the charterer is bound only to reasonable despatch; and this has been held by the court of appeal, in Hick e. Rodocanachi, [1891] 2 Q. B. 626, following Ford v. Cotesworth, L. R. 5 Q. B. 544, to mean not that the charterer must unload within a time which would be reasonable under ordinary circumstances, but only that he must use proper diligence under the actual circumstances; and he is therefore not liable for delay by a strike unless the strike is attributable to his own default: compare Postlethwaite v. Freeland, 5 App. Cas. at p. 608. The third form fixes a limit of time not directly but by some mode of reference to the custom of the port of discharge; and under this form it has been decided in Postlethwaite v. Freeland, 4 Ex. D. 155; 5 App. Cas. 599, that the period so indicated is not necessarily the customary time under ordinary circumstances, and that impediments arising in the particular case from or out of the custom or practice of the port which the charterer could not have overcome by reasonable diligence, may or ought to be taken into consideration in his favor. In the present case the charter-party appears clearly to be of the third kind. The expression is to be discharged with all despatch as customary.' Per Wright, J., Castlegate S. S. Co. v. Dempsey, [1892] 1 Q. B. 54. It was accordingly held in that case that the charterers were liable for delay caused by a strike at the port of discharge, but not for delay caused by delay of the dock company, which was habitually dilatory and well known to be so.

5. OF THE DISSOLUTION OF A CHARTER-PARTY.

305

Charter-parties, like all other contracts, may be discharged by the effect of their own terms, or by the agreement of the parties; (s) and a charter-party would be dissolved by anything which would make the execution of the agreement illegal, or impossible. Thus, a declaration of war by the country to which a ship belongs, against that to which it was to go, would dissolve the charter-party. (t) Whether an embargo, (u) or act of nonintercourse, or any other restraint or prohibition (v) by government, or a blockade (w) of the port in which the vessel is lying, or of that to which she is to go, (x) would suspend the charterparty, or go yet farther and dissolve it, must depend on the character of the detention. We think such a detention would generally, if not always, suspend it. And if it were one which would probably continue for a period so long that it would be clearly unreasonable to detain the ship until the detention were removed; or if, from the nature of the cargo, a shorter detention would be likely to destroy it, or greatly diminish its value, we should say that this detention would annul the contract. (y)

If a ship and cargo were captured, and afterwards restored, *such capture would generally only suspend the *306 charter-party until the restoration. But even then the detention might be such, that from its length, or other circumstances, it must break up the voyage; and then it would annul the charter-party. (2)

(3) Goss v. Nugent, 5 B. & Ad. 58; King v. Gillett, 7 M. & W. 55; Cummings v. Arnold, 3 Met. 486; Howard v. Macondray, 7 Gray, 516.

(t) Brown". Delano, 12 Mass. 370; Palmer v. Lorillard, 16 Johns. 348; Avery v. Bowden, 5 Ellis & B. 714, 6 Ellis & B. 953; Barrick v. Buba, 2 C. B. (N. s.) 563. See also Esposito v. Bowden, 4 Ellis & B. 963, 7 Ellis & B. 763; Reid v. Hoskins, 4 Ellis & B. 979, 5 id. 729, 6 id. 953; Clemontson v. Blessig, 11 Exch. 135.

(u) Odlin v. Ins. Co. of Penn. 2 Wash. C. C. 312, 317; Hadley v. Clarke, 8 T. R. 259; M'Bride v. Mar. Ins. Co. 5 Johns. 308; Baylies v. Fettyplace, 7 Mass. 325; Touteng v. Hubbard, 3 B. & P. 291; Conway v. Gray, 10 East, 536.

(v) Richardson v. Maine Ins. Co. 6

Mass. 111; Palmer v. Lorillard, 16 Johns. 348; Patron v. Silva, 1 La. 275. Lowness of water, which prevents a vessel reaching her port, merely suspends the contract. Schilizzi v. Derry, 4 Ellis & B. 873.

(w) Palmer v. Lorillard, 16 Johns. 348; Ogden v. Barker, 18 Johns. 87; Richardson v. Maine Ins. Co. 6 Mass. 102.

(r) A blockade of the port of destination terminates the contract. Scott v. Libby, 2 Johns. 336; The Tutela, 6 Rob. Adm. 177.

(y) See The Isabella Jacobina, 4 Rob. Adm. 77.

(z) It seems to be held in England, by the Court of Admiralty, that the capture of the vessel and the unlivery of the cargo terminates the contract of affreight

1 A charter-party contained this memorandum: "In the event of war, blockade, or prohibition of export preventing loading, this charter-party to be cancelled." Held, that on the closing of the lading ports, the charter-party came to an end without any election by either party. Adamson v. Newcastle Steamship Ins. Ass 4 Q. B. D. 462. See Geipel v. Smith, L. R. 7 Q. B. 404.

Questions arising from losses or injuries by perils of the sea come up between the owner and the insurer, and these questions will be treated of in the chapter on Insurance. They are also presented for determination between the owner of the ship and the freighter, or shipper of the goods. The owner, in the bill of lading which he gives, stipulates to carry the goods safely, and deliver them in good condition, " perils of the sea excepted. " If therefore a loss occurs which cannot be attributed to perils of the sea, the owner is responsible therefor to the shipper; but if it is so attributable, the loss rests with the shipper. It therefore becomes important to determine what are perils of the sea, and for this we must look to the law-merchant.

The meaning and reason of the rule thus defining the responsibility of the owner, are obviously this. The owner should be held to take all due care of the goods in his charge, so long as they remain in his charge. It follows, therefore, that the general definition of perils of the sea must mean all those maritime dangers or disasters which may befall the goods, and which ordinary care and precaution cannot prevent. (a)

• 307

*These perils are those which arise from extraordinary violence by the wind, or the sea, wreck, stranding, or capture by public enemy or by pirates. (aa)

The vessel must, in the first place, be entirely seaworthy in all respects and particulars, and properly navigated; and it is not so seaworthy or so navigated unless it is competent to encounter or avoid the ordinary perils of the voyage.

In one sense, the action of the sea need not be extraordinary to bring a loss within the perils of the sea; as, if the ship be

ment. The Racehorse, 3 Rob. Adm. 101; The Martha, id. 106, n.; The Hoffnung, 6 id. 231; The Louisa, 1 Dods. 317; The Wilelmina Eleonora, 3 Rob. Adm. 234. See, however, the judgment of the court in Beale v. Thompson, 3 B. & P. 428; Bergstrom v. Mills, 3 Esp. 36; Moorson v. Greaves, 2 Camp. 627. In The Nathaniel Hooper, 3 Sumner, 542, 556, Mr.

wrecked by a current, which the master did not know, and could not justly be regarded as bound to know, this would be a loss by a peril of the sea, although not in itself extraordinary. Whether fire, as between the owner and the shipper, is a peril of the sea may not be certain; but we think that it is not, and that the carrier would by the common law be responsible, although fire was not caused by the negligence of the master or seamen. (b) But now, by statute both in England (c) and in this country, (d) a carrier is not liable for an accidental fire happening to or on board of a vessel. The Act of 1851 does not apply to any canalboat, barge, or lighter, or to any vessel of any description whatsoever, used in river or inland navigation. (e) And it has been held, that a vessel on Lake Erie, bound from Buffalo to Detroit, enrolled and licensed for the coasting trade, and engaged in navigation and commerce as a common carrier, between ports and places in different States, upon the Lakes and navigable waters. connecting the same, is not a vessel used in inland navigation. (f)

The statute does not exonerate the ship for a loss by fire after the goods are on the wharf, but before they are delivered. (g)

*308

The destruction of a ship by worms would not be generally a "peril of the sea," excusing the owner, because it must be known when and where this mischief is likely to occur, and then and there a ship should be protected against it; as this is 'generally possible by adequate precautions. (h) So we should say the owner should be responsible for damage caused by rats (i) or other vermin. These are the principles applied in marine insurance, and would apply equally as between owner and shipper.

So, too, the owner would not be responsible, if without the fault of the master the goods were damaged by actual contact

(b) Morewood v. Pollok, 1 Ellis & B. 743; N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 344; Garrison v. Memphis Ins. Co. 19 How. 312.

(c) 26 Geo. 3, c. 86; Morewood v. Pollok, 1 Ellis & B. 743.

v. Salem Ins. Co. 2 Mass. 420; Hazard v. New England Ins. Co. 1 Sumner, 218, 8 Pet. 557.

(i) See Hunter v. Potts, 4 Camp. 203; Dale v. Hall, 1 Wilson, 281; Laveroni v. Drury, 8 Exch. 166; Garrigues v. Coxe,

(d) 1851, c. 43, 9 U. S. Stats. at Large, 1 Binn. 592; Aymar v. Astor, 6 Cow. 266.

635.

(e) Id. § 7.

(f) Moore v. American Transp. Co. 5 Mich. 368, 24 How. 1.

(g) Salmon Falls Co. v. Bark Tangier, 21 Law Rep. 6; The Ship Middlesex, id.

14.

(h) Rohl v. Parr, 1 Esp. 445; Martin

VOL. II.

It is so held in a recent English case, in which it appeared that the ship-owner had made use of all possible precautions to prevent this damage, Kay . Wheeler, Law Rep. 2 C. P. 302; and in the New York Circuit Court of the United States. The Miletus, 5 Blatchford, 335.

with sea-water; (j) or if, a part of the cargo being so damaged, vapor and gases arising from it injured another portion. (k)

Damage caused by any form of wreck, as by the ship sinking or stranding, although generally a peril of the sea, would not be one, and therefore would not excuse the owner, if it were the master's wilful fault. If the total loss of the vessel be inferred by a presumption of law, from the lapse of a reasonable time without her being heard from, it will be a part of this presumption that she perished through a peril of the sea. (1) But collision (to be treated of in next sub-section) arising from the negligence of the crew is not a peril of the sea within the exception in a bill of lading. (1)

This is a maritime peril, an injury from which is quite common in harbors, and it sometimes occurs at sea. It gives rise to a question entirely distinct from those presented by other losses or perils. This question is this: Is either of the two ships or their owners responsible to the other ship or owner, and on what ground, and to what extent? The party in fault must suffer his own loss, and compensate the other party for the loss he may sustain. (m) The nearly universal maritime law is, that where a collision takes place from causes which could not have been prevented by any efforts reasonably required, and no blame is imputable to either party, the loss must rest where it falls; and

he who suffers it has no claim on the other. (n) We have 309 called this a nearly universal rule, for the only excep

tions we know of prevail at Hamburg and at Calcutta, and have given rise, in both ports, to a difficult question of marine insurance, which will be treated of in the chapter on that subject.

If both ships are equally, or if, though not equally, yet both substantially in fault, the rule may not be so certain. The com

(j) Baker v. Manuf. Ins. Co. Sup. Jud. Ct. Mass. 14 Law Reporter, 203.

(k) Id. But see Montoya v. London Ass. Co. 6 Exch. 451.

(1) Gordon v. Bowne, 2 Johns. 150; Brown v. Neilson, 1 Caines, 525.

() Grill v. Iron Screw Collier Co., Law Rep. 1 C. P. 600.

(m) The Scioto, Daveis, 359; The Woodrop-Sims, 2 Dods. 83; Reeves v. Ship Constitution, Gilpin, 579; The Sappho, 9 Jur. 560.

(n) The Woodrop-Sims, 2 Dods. 83; The Celt, 3 Hagg. Adm. 328, note; The Itinerant, 2 W. Rob. 236; Stainback v. Rae, 14 How. 532; The Atlanta, 41 Fed. Rep. 639. An inevitable accident is defined in The Virgil, 2 W. Rob. 201, to be "that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution, and maritime skill."