ing performance may make a degree of delay reasonable which apart from the strike would not be.16 "Where the time for the discharge of the vessel is stipulated, or is definitely fixed by the charter or bill of lading, so that it can be calculated beforehand, the charterer thereby agrees absolutely to discharge her within that time, and he takes the risk of all unforeseen circumstances. 'He bears the risk of delay arising from the crowded state of the place at which the ship is to load or discharge,' 17 or from frost, 18 or bad weather, 19 preventing access to the vessel; or from acts of the government of the place prohibiting export, or preventing communication with the ship.20 And it is immaterial that the shipowner, also, is prevented from doing his part of the work within the agreed time, unless he is in fault. The charterer takes the risk.'" 21 But where demurrage is promised by the charter 3 Fed. 344; Whitehouse v. Halstead, 90 Ill. 95, 98; Henley v. Brooklyn Ice Co., 14 Blatch. 522, Fed. Cas. No. 6,364; Finney v. Grand Trunk Ry. Co., 14 Fed. 171; Houge v. Woodruff, 19 Fed. 136; Fish v. One Hundred and Fifty Tons of Brown Stone, 20 Fed. 201; Gronn v. Woodruff, 19 Fed. 143; The Z. L. Adams, 26 Fed. 655, 656; The Elida, 31 Fed. 420; The William Marshall, 29 Fed. 328; The Mary Riley v. Three Thousand Railroad Ties, 38 Fed. 254; Riley v. A Cargo of Iron Pipes, 40 Fed. 605; Bellatty v. Curtis, 41 Fed. 479, 480; Taylor v. Great Northern R. Co., L. R. 1 C. P. 385; Burmester v. Hodgson, 2 Camp. 488; Ford v. Cotesworth, L. R. 4 Q. B. 127, L. R. 5 Q. B. 544; Hick v. Rodocanachi, [1891] 2 Q. B. 626, 633, 638, 646; Hick v. Raymond [1891] 2 Q. B. 626, [1893] A. C. 22; Postlethwaite v. Freeland, 5 App. Cas. 599, 621, 622. See also Ben Franklin Transp. Co. v. Federal Sugar Ref. Co., 242 Fed. 43, 154 C. C. A. 665. 16 The Richland Queen, 254 Fed. 668, 166 C. C. A. 166. The court disapproved a distinction taken by the New York Court of Appeals, according to which a peaceable strike of a carrier's employees is no excuse for delay, Blackstock v. New York &c. R. Co., 20 N. Y. 48, 75 Am. Dec. 372, while a strike with violence is a defence, Geismer v. Lake Shore &c. R. Co., 102 N. Y. 563, 7 N. E. 828, 55 Am. Rep. 837. 17 Empire Trans. Co. v. Philadelphia & Reading Coal &c. Co., 77 Fed. 919, 23 C. C. A. 564, 35 L. R. A. 623; citing Carver, Carriage by Sea, §§ 610, 611; Randall v. Lynch, 2 Camp. 352; [See also W. K. Niver Coal Co. v. Cheronea S. S. Co., 142 Fed. 402, 73 C. C. A. 502, 5 L. R. A. (N. S.) 126]. 18 Ibid. Citing Carver, Carriage by Sea, §§ 610, 611; Barret v. Dutton, 4 Camp. 333. 19 Ibid. Citing Carver, Carriage by Sea, §§ 610, 611; Thiis v. Byers, 1 Q. B. D. 244. 20 Ibid. Citing Carver, Carriage by Sea, §§ 610, 611; Barker v. Hodgson, 3 Maule & S. 267; Blight v. Page, 3 Bos. & P. 295, n. 21 Ibid. Citing Carver, Carriage by Sea, §§ 610, 611; Davis v. Wallace, 7 Fed. Cas. 182 (No. 3,657); Philadelphia, etc., R. Co. v. Northam, 19 Fed. party only for "detention by default" of the charterer, he is not liable for detention caused by vis major or foreign governments.22 What is a reasonable time for unloading when no time is fixed by the charter frequently depends on local practice and usage at the port of discharge, but "the custom of a port can be used as a reason for delay only when, because of such custom, a vessel is deprived of an opportunity to discharge sooner; and it cannot be used as a reason for delay when such opportunity is afforded, and, merely for reasons of the charterer's convenience, the discharge is de Cas. 492 (No. 11,090); Williams v. Theobald, 15 Fed. 465, 471; Manson v. New York, etc., R. Co., 31 Fed. 297; Sixteen Hundred Tons of Nitrate of Soda v. McLeod, 10 C. C. A. 115, 61 Fed. 849; Burrill v. Crossman, 16 C. C. A. 381, 35 U. S. App. 608, 69 Fed. 747, 752. In Tweedie Trading Co. v. New York Cent. & H. R. Co., 194 Fed. 281, 283, discussing the obligation of the owner of a portion of the cargo, L. Hand, J., said: "The question of law raised in this branch of the case is whether, if the cargo of a ship be in layers, the owner of the lower layer is responsible under the charter party, for demurrage, although he discharges with all reasonable dispatch, if the owner of the upper layer be delinquent in his own discharge. When the charter party engages the charterer or cargo owner to discharge by a fixed day, or in a fixed number of days, the law is now settled in England that the owner of the lower layer is responsible regardless of his own default (Leer v. Yates, 3 Taunt. 387; Porteus v. Watney, L. R. 3 Q. B. Div. 534), in spite of two rulings of Lord Tenterden to the contrary in Rogers v. Hunter, Moody & Malkin, 63, and Dobson v. Droop, Moody & Malkin, 441. Regardless of which rule is preferable, if the matter were to be decided in this case, I think the rule clearly distinguishable as being only an instance of the stringent principle of Thiis v. Byers, L. R. 1 Q. B. Div. 244, that, when a charterer engages to deliver by a day certain, he assumes all risks of what may come up to prevent. The rule is the same in this country (Empire Transportation Co. v. Philadelphia & Reading Co., 77 Fed. 919, 23 C. C. A. 564, 35 L. R. A. 623), but it is not applicable in the case at bar because the charterer did not engage to discharge the ship by a certain day, or indeed to discharge her at all, but only to receive the cargo as fast as the steamer could unload, working all hatches at once. The commissioner was clearly right under such a charter party in holding that each cargo owner was answerable only for his own default. Thus, if the cargo of A. has to be removed before that of B., B.'s only duty is to receive as fast as the steamer can unload from the time she begins to unload his cargo; and, to recover against B., the ship must show, first, that B. did not receive, and, second, that there was a period of delay caused by B.'s failure. I do not mean that, if A.'s cargo was in one hold and B.'s in another, so that each could receive independently, it would excuse B. to show that, if he had not been in default, A. would have detained the ship anyway." 22 Crossman v. Burrill, 179 U. S. 100, 21 Sup. Ct. 38, 45 L. Ed. 106; The Olaf, 248 Fed. 807, 813. layed." 23 The rules in regard to the promptness with which loading must be done by the party charged with that duty are analogous to those governing the duty to unload.24 The common provisions in charter parties in regard to demurrage of different sorts have been classified as follows: "A charterparty in dealing with demurrage may do one of three things: first, it may provide for a fixed number of days for demurrage. Thus, assuming that under the charter-party there are five lay days and five days for demurrage, and instead of taking ten days for loading the vessel takes eleven days, the shipowner will be entitled on the eleventh day to damages for detention. Secondly, the charter-party may provide that there shall be so many lay days and a reasonable number of demurrage days. In such a case, in default of agreement it is for the Court to say what is a reasonable number of days, and then all days in excess of that number will be detention days. But there may be, thirdly, a charter-party which neither fixes the number of demurrage days, nor provides that there shall be a reasonable number of days for demurrage, but merely says that a certain rate shall be paid for demurrage." 25 In the first of these cases if the charterer delays beyond the number of days allowed for demurrage by the terms of the contract, and in the second and third cases if he delays beyond a reasonable number of demurrage days, the owner may withdraw the vessel. 26 But if he fails to do this and allows the charterer to load at a later day, damages for detention in the first two classes of cases will be based on actual damage; while in the third class of cases, 23 Leonard v. William G. Barker Co., 214 Fed. 325, 327; citing Lindsay v. Cusimano (D. C.), 10 Fed. 302; Id. (C. C.), 12 Fed. 503, 504. 24 In Kearon v. Pearson, 7 H. & N. 386, the court said: "The defendants, by charter-party, engaged to load on board the plaintiff's ship a cargo of coals. 'To be loaded with usual dispatch.' The defendants commenced loading by bringing the coal in boats along a canal to the dock where the plaintiff's ship was, but before the cargo was completed a severe frost rendered the canal unnavigable, and the ship was detained thirty-four days. Held, that the expression 'usual dispatch' meant 'usual dispatch of persons who have a cargo ready for loading and that the defendants were responsible for the delay.'" See to the same effect Atlantic &c. S. S. Co. v. Guggenheim, 123 Fed. 330. 25 Sankey, J., in Iverkip Steamship Co. v. Bunge, [1917] 1 K. B. 31, 35. 26 Ibid. the damages will be determined by the rate fixed in the contract for demurrage.27 § 1100. When lay-days begin. A charter party usually allows a certain number of lay-days for loading and provides for the payment of demurrage for delay beyond the stipulated lay-days. The lay-days ordinarily begin when the ship is an "arrived ship" at the disposal of the charterer. Two situations must be distinguished in determining when a ship has arrived. 1. When the place named in the charter party as the place of loading is a port or other wide district the lay-days begin when the ship is ready within the port or district though she may not be at a wharf or dock to which the charterer may properly require her to go. 28 2. If the charter party names a definite wharf or spot in the port or dock as the place for arrival, or gives the charterer in express terms the right to order the ship to such a definite loading spot, the lay-days will not begin until the ship has reached that spot. 29 It must be admitted that the distinction is rather thin between a charter party giving in express terms the right to name a particular wharf, and a charter party which merely names the port, the right of the charterer to name the berth in the port to which the vessel is to go being only implied. The tenuity of the distinction is emphasized by the fact that the custom of a port may prevent a ship from being "arrived" as soon as she is within the limits of the port though the charter party makes no more specific statement of destination.30 § 1101. Freight or hire. Under a charter which amounts to a demise of the vessel the obligation of the charterer to pay the agreed hire of the vessel must be regarded as given in return for the use of the Ibid. 28 Leonis Steamship Co. v. Rank, [1908] 1 K. B. 499. 29 Ibid. Tapscott v. Balfour, L. R. 8 C. P. 46. 30 Brereton v. Chapman, 7 Bing. 559; Thiis v. Byers, 1 Q. B. D. 244; Leonis Steamship Co. v. Rank, [1908] 1 K. B. 499, 520. vessel. So long, therefore, as the charterer retains control of the vessel, even though breach of contract by the owner would justify him in cancelling the charter, he is liable for hire. As in the case of a lease of real property, the only way of avoiding payment is by surrendering the use of the hired property. Even though the vessel is useless for the purpose of the charterer, if he is still the lessee in control of it, he will be bound to pay hire. Under a charter which is not a demise of the vessel freight is the payment due for the carriage and delivery of goods. 32 No freight, therefore, is earned if the goods are lost,33 or cannot be carried because of impossibility, 34 unless the loss or impossibility is due to the shipper's fault, or a special provision in the contract provides otherwise.35 But even though the value of the goods has been wholly lost by decay or damage due to a peril either excepted by law or by the terms of the contract, the carrier is entitled to full freight if they are delivered at their destination. "The consideration for the freight, is the carriage of the article shipped on board, and the state or condition of the article at the end of the voyage has nothing to do with the obligation of the contract." 36 Sometimes part of the freight is paid or promised to be 31 Work v. Leathers, 97 U. S. 379, 380, 24 L. Ed. 1012. "The owner is liable for the breach of his contract, but the stipulation of seaworthiness is not so far a condition precedent that the hirer is not liable in such case for any of the charter-money. If he uses her, he must pay for the use to the extent to which it goes. 1 Pars. Adm. 265; 3 Kent. Com. 205; Abbott, Shipp. (5th Am. ed.), 340." 32 Kirchner v. Venus, 12 Moore, P. C. 361, 391; Dakin v. Oxley, 15 C. B. (N. S.) 646, 665. 33 Dakin v. Oxley, 15 C. B. (N. S.) 646, 664. 34 Scottish Nav. Co. v. Souter, [1917] 1 K. B. 222. 35 Charters or bills of lading frequently provide for the payment of freight whether the ship is lost or not. Allanwilde Transport Co. v. Vacuum Oil Co., 248 U. S. 377; 39 S. Ct. 147; The Gracie D. Chambers, 248 U. S. 387, 39 S. Ct. 149; Standard Varnish Works v. The Bris, 248 U. S. 392, 39 S. Ct. 150. Such a clause is construed as covering only losses through excepted perils. Great Indian, etc., Ry. Co. v. Turnbull, 53 L. T. 325. But the fact that the ship has never broken ground will not deprive the carrier of its right. The Gracie D. Chambers, 248 U. S. 387, 39 S. Ct. 149. 36 Griswold v. Insurance Co., 3 Johns. 321, 329 (per Kent, C. J.), 3 Am. Dec. 490. See also Dakin v. Oxley, 15 C. B. (N. S.) 646; Duthie v. Hilton, L. R. 4 C. P. 138; Seaman v. Adler, 37 Fed. 268; Steelman v. Taylor, 3 Ware, 52; M'Gaw v. Ocean Ins. Co., 23 Pick. 405. |