10 M. & W. 331; but, by the custom of the port of London, the days in the clause of demurrage mean working days, which exclude Sundays and holidays at the custom house. Cochran v. Retberg, 3 Esp. 121. And, by usage, there may be other breaks in the calculation of running days. Nielsen v. Wait, 14 Q. B. D. 516; 16 Id. 67, C. A. For the purpose of a demurrage clause, a day is to be taken as of its natural length of 24 hours. Laing v. Hollway, 3 Q. B. D. 437, C. A. A fraction of a day counts as a day. Commercial S. S. Co. v. Boulton, L. R., 10 Q. B. 346. The lay days, allowed for loading or discharge, begin to run when the vessel arrives at the usual place of loading, or discharge, and not at the port merely. Brereton v. Chapman, 7 Bing. 559; Bastifell v. Lloyd, 1 H. & C. 388; 31 L. J., Ex. 413; Nelson v. Dahl, post, p. 451. Where the place of discharge is a dock, the days run from the time the ship enters the dock, and not from when she reaches her berth for loading or discharge. Brown v. Johnson, ante, p. 448; Davies v. McVeagh, 4 Ex. D. 265, C. A.; accord. The Carisbrook, 15 P. D. 98; dissenting from Murphy v. Coffin, 12 Q. B. D. 87, contra. Where the vessel was to proceed to " Tyne dock to such ready quay berth as ordered by the charterers," it was held that the charterers must name a berth ready to receive the vessel, and that in default of so doing they were liable under the demurrage clause. Harris v. Jacobs, 15 Q. B. D. 247, C. A. See also Pyman v. Dreyfus, 24 Q. B. D. 152. Where the ship is to unload at S., or "so near thereto as she may safely get at all times of the tide and always afloat," and the charterers are to pay demurrage for delay, and she cannot, on account of the tide, reach S. until 4 days after she had arrived at K. R., the nearest point where she could float; it was held that demurrage was payable from the arrival at K. R. Horsley v. Price, 11 Q. B. D. 244. When the ship has reached her place of discharge, the lay days continue to run, unless the unloading was prevented by the act of the master; Budgett v. Binnington, 25 Q. B. D. 320; (1891) 1 Q. B. 35, C. A.; even although a strike prevented him from carrying out the share of the work of unloading for which he was responsible. S. C. So although excepted perils caused delay in unloading. This v. Byers, 1 Q. B. D. 244. The days run, although the consignee cannot take his goods away, owing to the default of the consignees of other goods in not removing their goods. Straker v. Kidd, and Porteus v. Watney, 3 Q. B. D. 223; Id., 534, C. A. As to damages for detention, see Jones v. Adamson, 1 Ex. D. 60. The lay days allowed for loading and for unloading are usually to be kept distinct. See Marshall v. Bolckow, 6 Q. B. D. 231.

When the charter-party is silent as to the time of loading, reasonable time under ordinary circumstances is implied, and a strike in the collieries, whence the freighter was to get his cargo, is no excuse for delay. Adams v. R. Mail Co., 5 C. B., N. S. 492; 28 L. J., C. P. 33. So, where a cargo was to be loaded with "usual dispatch," this was held to mean usual dispatch, of persons who have a cargo in readiness, for the purpose of loading, and did not excuse a merchant, who had been prevented, by frost, from bringing his cargo to the place of loading. Kearon v. Pearson, 7 H. & N. 386; 31 L. J., Ex. 1; see also Fenwick v. Schmalz, L. R., 3 C. P. 313. With regard to unloading, both the shipowner and merchant are bound to use reasonable diligence, with regard to all the circumstances. Ford v. Cotesworth, L. R., 4 Q. B. 127; L. R., 5 Q. B. 544, Ex. Ch. And neither party can sue the other for delay arising from a cause over which the latter had no control. S. C.; Cunningham v. Dunn, 3 C. P. D. 443, C. A. The question as to whether the defendant has loaded or unloaded within a reasonable time where the contract is "to be ready to load or unload in regular turns" is to be governed by the usage of the port as to the turns or order of loading or unloading. Leidemann

VOL. I.

GG

v. Schultz, 14 C. B. 38; 23 L. J., C. P. 17; see Shadforth v. Cory, 32 L. J., Q. B. 379, Ex. Ch.; Bastifell v. Lloyd, ante, p. 449; Lawson v. Burness, 1 H. & C. 396; Cawthorn v. Trickett, 15 C. B., N. S. 754; 33 L. J., C. P. 182; Tapscott v. Balfour, L. R., 8 C. P. 46; Ashcroft v. Crow Orchard Colliery Co., L. R., 9 Q. B. 540; and Postlethwaite v. Freeland, 5 Ap. Ca. 599, D. P., where the earlier cases are collected and reviewed. See also ante, pp. 21 et seq. Where there is no usage of the port, the charterer must discharge the cargo in a reasonable time. Fowler v. Knoop, 4 Q. B. D. 299, C. A. When the charter-party is entered into by the shipowner with full knowledge of all the circumstances under which the cargo is to be obtained and loaded, delay in getting the cargo may be an excuse. Harris v. Dreesman, 9 Exch. 485; 23 L. J., Ex. 210. So, where the charter-party provided that "detention by ice should not be reckoned as laying days," it was held that this must be construed with reference to the particular nature of the place of export, S., and, as there were no warehouses there, and the cargo had to be brought down to S. in boats for loading, a detention of these boats by ice was within the exception of the charter-party. Hudson v. Ede, L. R., 2 Q. B. 566; L. R., 3 Q. B. 412, Ex. Ch. But the exception does not in general apply to delay caused by ice before the cargo has reached the limits of the place of loading. Kay v. Field, 10 Q. B. D. 241, C. A.; Coverdale v. Grant, 11 Q. B. D. 543, C. A.; 9 Ap. Ca. 470, D. P.

The defendant, an English subject, chartered the plaintiff's ship to take on board a cargo at Odessa, a port of Russia, 45 running days being allowed for loading and unloading. When there, the defendant's agent told the master that there was no cargo for him and urged him to sail; the master refused; and continued to demand a cargo until, the running days not having expired, war was declared between England and Russia: held, that no action would lie against the defendant, as the refusal by his agent, not having been accepted by the master as a renunciation of the contract, there had been no breach of contract by the defendant, when the war put an end to it. Avery v. Bowden, 5 E. & B. 714; 25 L. J., Q. B. 49; 6 E. & B. 962; 26 L. J., Q. B. 3, Ex. Ch.; Reid v. Hoskins, 5 E. & B. 729; 25 L. J., Q. B. 55; 6 E. & B. 953; 26 L. J., Q. B. 5, Ex. Ch.

Where the charter makes "the charterer's liability to cease when the ship is loaded, the captain having a lien upon the cargo for freight and demurrage," the charterer is discharged from liability incurred for demurrage during the loading; Francesco v. Massey, L. R., 8 Ex. 101; Kish v. Cory, L. R., 10 Q. B. 553, Ex. Ch.; Sanguinetti v. Pacific Steam Navigation Co., 2 Q. B. D. 238, C. A.; and the term demurrage will include damages for detention, not strictly demurrage. S. C., and Harris v. Jacobs, cited ante, p. 449. The clause extends to all liability under the charter arising after the ship is loaded. French v. Gerber, 1 C. P. D. 737 ; 2 C. P. D. 247, C. A. See further on modifications of the clause, Lister v. Van Haansbergen, 1 Q. B. D. 269, and Lockhart v. Falk, L. R., 10 Ex. 132. As to when demurrage is chargeable on goods delivered under a bill of lading, on the ground that the bill of lading incorporates the provisions of the charter-party, vide post, p. 458.

Freight and damages.] Freight is regulated by the contract, or, if none, by usage, or a quantum meruit, or by the course of former dealing between the parties. As a general rule, no freight is due until the goods be carried to the destined port. See Duthie v. Hilton, L. R., 4 C. P. 138, cited post, p. 455. Where charter-party freight is payable on unloading and right delivery of the cargo the freight is not earned until the unloading and delivery of the whole cargo has been completed. Brown v.

Tanner, L. R., 3 Ch. 597. The delivery and payment are concurrent acts. Paynter v. James, L. R., 2 C. P. 348; W. N. 1868, p. 141, Ex. Ch. Where a ship is to proceed to certain " docks or as near thereto as she may safely get," it is not sufficient for her to go to the dock gates only; Nelson v. Dahl, 6 Ap. Ca. 38, D. P.; if she cannot enter on arrival there, by reason of the docks being full, her obligation to wait to enter depends on the question of fact, whether, under all the circumstances, it is reasonable that she should so wait; if it be not reasonable, the charterer must take delivery as near to the dock as the ship can safely get. S. C. See on the construction of the words in a charter-party 66 as near thereto as

she may safely get," the judgment of Ld. Blackburn in S. C., Id. pp. 50, 51, and cases there cited. Where a ship is to go to a safe port, or so near thereto as she may safely get, and "always lie and discharge afloat," the master is not bound to discharge at a port where she could not so lie without being lightened. The Alhambra, 6 P. D. 68, C. A. See also Horsley v. Price, 11 Q. B. D. 244, ante, p. 449. Where by the charter-party a ship was to proceed with a cargo to a port, "to discharge in a dock as ordered on arriving if sufficient water, or so near thereunto as she may safely get always afloat," it was held she was only bound to discharge in a dock named if there were sufficient water when the order was given. Allen v. Coltart, Id. 783.

Where the shipowner carries the cargo to the port of destination, but from the nature of the cargo, is unable to land it there, the freight becomes payable; and, if the prudent course for the master to adopt is to bring the cargo home again, he is entitled to be paid back- freight as well as the expenses incurred in endeavouring to land the cargo. Cargo ex Argos, L. R., 5 P. C. 134, 155. So, freight is payable where the cargo is delivered at a port included in a charter-party, but not at the port named by the charterer, that port having become dangerous for the ship, a foreign one, by reason of war having broken out. The Teutonia, L. R., 4 P. C. 171.

The freight is sometimes made wholly or partly payable at the port of loading. If part of it be made payable on the "final sailing" of the ship from the port of loading, or “from her last port in the United Kingdom, it is not payable if the ship be wrecked in an artificial canal within the limits of the port on its way out to sea, with the clearances on board, and all ready for sailing; Roelandts v. Harrison, 9 Exch. 444; 23 L. J., Ex. 169; Sailing Ship Garston Co. v. Hickie, 15 Q. B. D. 580, C. A.; and where the ship has got out of port and cast anchor some miles off, but was not in a condition to proceed on her voyage, the shipowner was held not entitled to freight payable "on sailing." Thompson v. Gillespie, 5 E. & B. 209; 24 L. J., Q. B. 340. But it is otherwise where the ship has once left the port in a state ready for the voyage, and it is immaterial that she has been driven back into the port by stress of weather. Price v. Livingstone, 9 Q. B. D. 679, C. A. The term "port" in a charter-party must be understood in its popular or commercial sense. S. C.; Sailing Ship Garston Co. v. Hickie, supra; acc. Hunter v. N. Marine Insur. Co., 13 Ap. Ca. 717, D. P. See further, ante, p. 409. Payments made in advance, on account of freight, cannot be recovered back, though the ship be lost. Anon., 2 Show. 283; Byrne v. Schiller, L. R., 6 Ex. 20; Id., 319, Ex. Ch.; Allison v. Bristol Marine Insur. Co., 1 Ap. Ca. 209, D. P. Where the freighter has contracted to pay a minimum freight, or the highest that the shipowner could "prove to have been paid" for ships on the same voyage, the plaintiff, who claims a higher freight, must prove by evidence that such higher freight was actually paid, or contracted to be paid, on a voyage between the two places; and proof of the highest

current freight is not enough. Gether v. Capper, 15 C. B. 696; 24 L. J., C. P. 69.

Where the merchant agreed to find a full return cargo of various articles, each to pay a stipulated freight from the port, but he finds none, or articles not enumerated, the measure of damage is the average freight of all the articles. Thomas v. Clarke, 2 Stark. 450; Capper v. Forster, 3 N. C. 938. When the owner stipulates for a full cargo, he is entitled to full freight, as if a full cargo had been put on board, irrespective of the tonnage of the ship mentioned in the charter. Hunter v. Fry, 2 B. & A. 421. Aliter, when the amount of cargo is mentioned. Morris v. Levison, 1 C. P. D. 155. Where the charter-party stipulated for a "full and complete cargo of sugar and other lawful produce," rates were mentioned for timber and other goods, and the charter-party proceeded, "other goods, if any be shipped, to pay in proportion to the foregoing rates, except what may be shipped for broken stowage, which shall pay as customary"; a full cargo of mahogany logs was shipped; it was held that the shipper was bound to supply broken stowage to fill up the interstices. Cole v. Meek, 15 C. B., N. S. 795; 33 L. J., C. P. 183. Where the contract stipulated for a full cargo of wool, tallow, bark, hides, and other legal merchandise, fixing the freight and quantity of each, except of wool and "other merchandise," it was held that the merchant might load entirely with " other" legal merchandise, but must pay freight as if the cargo had consisted of the stipulated quantity of tallow, bark and hides, and the residue of wool. Cockburn v. Alexander, 6 C. B. 791. In this case, the Court considered the words "other merchandise" as applying to goods producing the amount of freight contemplated by the contract, and that the difference was the measure of damage. Warren v. Peabody, 8 C. B. 800, was decided on the same principle. But where the charterer undertook to load "a full and complete cargo of oats or other lawful merchandise," to be delivered by the shipowner on payment of freight, as follows: "48. 6d. sterling per 320 lbs. weight delivered for oats, and if other cargo be shipped in full and fair proportion thereto according to London Baltic printed rates," it was held that the charterer fulfilled his contract by loading a full cargo of flax, tow, and codilla, three of the articles mentioned in the Baltic printed rates, and was not liable for additional freight, as on a full cargo of oats, although this obliged the shipowner to carry 120 tons ballast to 168 tons of cargo. Southampton Steam Colliery Co. v. Clarke, L. R., 4 Ex. 73; L. R., 6 Ex. 53, Ex. Ch.; following on this point, Moorsom v. Page, 4 Camp. 103.

Freight is to be calculated and paid on that amount only, which is put on board, carried throughout the whole voyage and delivered at the end to the merchant. Gibson v. Sturge, 10 Exch. 639; 24 L. J., Ex. 121, per Alderson, B., approved in Buckle v. Knoop, L. R., 2 Ex. 333, 334, Ex. Ch. In an action for freight against the indorsee of a bill of lading, the shipowner is not, by 18 & 19 Vict. c. 111, s. 3, post, p. 459, estopped by an innocent mis-statement of quantity in the bill, if all that was shipped is actually delivered. Blanchet v. Powell's Llantivit Colliery Co., L. R., 9 Ex. 74. As to the freight payable where the weight or bulk of the goods when delivered differs from that when shipped, see S. CC.; Coulthurst ▼. Sweet, L. R., 1 C. P. 649; Tully v. Terry, L. R., 8 C. P. 679. Lump freight is a sum payable for the use of the ship, and is payable though part of the cargo is lost by the excepted perils. Robinson v. Knights, L. R., 8 C. P. 465; Merchant Shipping Co. v. Armitage, L. R., 9 Q. B. 99, Ex. Ch. See also Blanchet v. Powell's Llantivit Colliery Co., supra.

Where a ship is, by the charter-party, guaranteed to carry 2,000 tons dead weight as a lump freight, with a pro ratâ deduction if the guarantee

were not fulfilled, and by a memorandum on the charter-party, or otherwise, the charterer has represented the nature of the cargo, and the ship cannot carry 2,000 tons of cargo tendered, owing to its not being according to the representation, the charterer cannot claim any deduction from the freight. Mackill v. Wright, 14 Ap. Ca. 106, D. P.

The charterer has no right to fill the cabins as well as the carrying part of the ship, and if permitted by the master to do so, he is liable to pay the current freight for it, and cannot insist on paying only the charter price. Mitcheson v. Nicol, 7 Exch. 929; 21 L. J., Ex. 323.

If goods of the consignor, and carried at his risk, be delivered to the consignee, and he do not pay the freight, the consignor is liable, even though the bill of lading express that the goods are to be delivered to the consignees "paying freight for the same," this clause being inserted merely for the benefit of the shipowner. Domett v. Beckford, 5 B. & Ad. 521; see also G. W. Ry. Co. v. Bagge, 15 Q. B. D. 625. This right to claim freight from the shipper is expressly reserved by the Bills of Lading Act (18 & 19 Vict. c. 111), s. 2, ante, p. 445. The circumstances may, however, rebut the inference of freight being payable, arising merely from the goods having been carried in the plaintiff's ship under bills of lading signed by the master. Smidt v. Tiden, L. R., 9 Q. B. 446. Though freight may not be payable in respect of goods shipped by A. in his own ship, yet if by the bills of lading he make the goods deliverable to the order of B., who has advanced him money on the security of the goods, freight becomes payable to C., to whom A. assigned the freight, to be earned by the ship. Weguelin v. Cellier, L. R., 6 H. L. 286. As to right of mortgagee, abandonee, or other transferee of the ship to freight, see Keith v. Burrows, 2 Ap. Ca. 636, D. P.

The measure of damages for not loading any cargo is the amount of freight which would have been carried, deducting expenses and any profit earned during the time covered by the charter; but semb., the shipowner is not bound to take on board another cargo in order to reduce the damage. Smith v. Maguire, 3 H. & N. 554; 27 L. J., Ex. 465; Morris v. Levison, 1 C. P. D. 155, 158. The shipowner cannot sue the merchant for not loading, when the loading was prevented by want of notice to him, that the ship was ready to receive the cargo. Stanton v. Austin, L. R., 7 C. P. 651.

Freight pro rata.] If the shipper accept part of the goods, though carried under an entire contract for freight, Mitchell v. Darthez, 2 N. Č. 555; or accept the goods before the completion of the voyage, Vlierboom v. Chapman, 13 M. & W. 238; The Soblomsten, L. R., 1 Adm. 293; a new contract to pay pro rata may be inferred. But, as a general rule, unless the goods be carried to the destined port, no freight is due. S. C.; Metcalfe v. Britannia Iron Works Co., 1 Q. B. D. 613; 2 Q. B. D. 423, C. A. Thus, if the master justifiably sell part at an intermediate port, he is not entitled to recover freight, pro rata, for the goods sold. Hopper v. Burness, 1 C. P. D. 137; Hill v. Wilson, 4 C. P. D. 329. A fortiori, if the master sell the goods unjustifiably. Acatos v. Burns, 3 Ex. D. 282, C. A. If the master be disabled from carrying the goods further, he may tranship them, and, upon safe delivery at their destination, he is entitled to the whole freight as on the old contract, without reference to the contract with the new ship. Shipton v. Thornton, 9 Ad. & E. 314. The master has a reasonable time for re-shipment, and if he be prevented by default of the owner of the cargo from forwarding the cargo from an intermediate port to its destination, the whole freight is payable. Cleary v. M‘Andrew, 2 Moo. P. C., N. S. 216; The Soblomsten, supra. The master, while