II. By evidence that the parties, when they contracted, were aware of a particular state of things which might cause delay, provided that the actual delay is not unreasonable (m). III. By evidence that there was only one method of loading ever used at the port, which involved in all cases the transit of cargo from a particular place in a particular way, in which case accidents preventing such transit may come within exceptions "preventing loading" (n). When once the loading is completed, the charterer's obligation is fulfilled (0), and subsequent delays, as by ice (p), or failure to procure clearances (q), must fall on the shipowner. The cargo tendered must be one reasonably complying with the terms of the charter (r). Note. Many charters contain a clause specially dealing with the charterer's duty to furnish a cargo, e.g., "Cargo to be loaded in running hours, Sundays and holidays excepted, from the time true written notice is given (between 9 A.M. and 5 P.M.), that all ballast or inward cargo is discharged and the vessel is ready to receive her cargo; any time lost through riots, strike, lockout, or by reason of accidents to mines or machinery, obstruction in the railway and the docks or by reason of floods, frosts, storms, or any cause beyond the control of the said charterers not to be computed as part of the loading time." Case 1.--A ship was chartered to "proceed to Cardiff East Bute Dock and there load iron in the customary manner.. cargo to be supplied as 295, note, seems to turn on the absence of an exception of "restraint of princes in favour of the shipper. Where a charter excepted "accidents," it was held that a snow-storm preventing transit of cargo was not "an accident beyond the control of the charterer, preventing or delaying the loading," it being an ordinary operation of nature: Fenwick v. Schmalz, vide supra. (m) Harris v. Dreesman (1854), 23 L. J. Ex. 210; and see Case 7, sub. (n) Hudson v. Ede (1868), L. R. 3 Q. B. 412, as explained by Lord Selborne, in Corerdale v. Grant (1884), 9 App. C. 477, and by the C. A. in Stephens v. Harris (1887), 57 L. J. Q. B. 203. This case was followed by Charles, J., in S.S. Allerton Co. v. Falk (1888), 6 Asp. M. C. 287, on facts applicable to the salt trade in the Mersey. In The Alne Holme (1893), P. 173, the same principle was applied to the port of discharge. (0) Smith v. Wilson (1817), 6 M. & S. 78. (p) Pringle v. Mol'ett (1840), 6 M. & W. 80. (q) Barret v. Dutton (1815), 4 Camp. 333. to provide necessary documents or information. Otherwise if the charterer fails (r) Ho'man v. Dasnieres (1886), 2 Times L. R. 480, 607. Thus a charter to load a cargo of pitch in bulk will not be satisfied by a cargo which has melted, and has to be dug out of the trucks; a “cargo of machinery" without any particular description of it, by a single piece of machinery, to ship which the master must cut open his decks. 100 CHARTERER TO FURNISHI CARGO. fast as steamer can receive. . . time to commence from the vessel's being ready to load . . . excepting in case of hands striking work, or frosts, or floods, or any other unavoidable accidents preventing the loading." The charterer's agent had his own iron at a wharf in a canal outside the dock; but there were other agents with wharves in the dock, and it was possible, though expensive, to bring the iron from the wharf to the dock by land. Frost stopped the transit of the iron by the canal, though it would not have stopped the loading if the cargo had been in the dock. Held, that the charterers were liable for the delay, as the frost did not prevent the loading, but only the transit of the cargo to the place of loading by one of the ways usual at the port (s). Case 2.-A ship was chartered to load coal "in regular and customary turn, except in case of riots, strikes, or other accidents beyond charterer's control delaying or preventing loading." A snow-storm delayed the transit of the coal to the place of loading. Held, the charterers were liable for the delay (t). Case 3.-A shipowner agreed to send his ship to X, and there find and take on board a full cargo of guano. There was no guano at X, within a reasonable time of the ship's arriving. Held, the shipowner was absolutely bound to find and load a full cargo (u). Case 4.-A ship was chartered to load at X. a full cargo of coals, taking her turn with other steamers, and receive prompt despatch in loading and discharging. The ship was loaded in her turn, but was delayed owing to a short supply of coals from the mines. Held, the charterer was liable for the delay (x). Case 5.-A ship was chartered to proceed to X., and there load coals in the customary manner. The loading was delayed by a dispute between the railway and the collieries as to rates of carriage, and by a strike of colliers. Held, that the charterers were liable for the delay (y). Case 6.-A ship is chartered to load cattle at an English port; though the loading of cattle already at that port would not be prohibited, their transport to that port is forbidden by Order in Council. Submitted, the charterer would be liable to delay arising from such order (z). Case 7.-A ship was chartered to load at S. colliery. Before signing the charter both parties knew that the colliery engine had broken down and was being repaired. Held, that if the engine was repaired, and the ship loaded, in a reasonable time, the charterer was not liable, as the owners sigued the charter, knowing of the breakdown of the engine (a). (s) Coverdale v. Grant (1884), 9 App. C. 470. See also Kay v. Field (1883), 10 Q. B. D. 241. In Kearon v. Pearson (1861), 7 H. & N. 386, it was said "the time for loading has no reference to the place whence the cargo is to come," i.e., "usual despatch" could not be construed usual despatch of cargo coming from a particular colliery," but "usual despatch of persons having a cargo ready for loading. (t) Fenwick v. Schmalz (1868), L. R. 3 C. P. 313; see note (1), ante. (u) Hills v. Sughrue (1846), 15 M. & W. 253. This case is quite inconsistent with Clifford v. Watts (1870), L. R. 5 C. P. 577. Brett and Willes, JJ., in that case treat it as a contract by the charterer to find a full cargo, which it certainly was not. (x) Elliott v. Lord (1883), 52 L. J. P. C. 23. (4) Adams v. Royal Mail Steam Co. (1858), 5 C. B., N.S., 492. (z) On authority of Ford v. Cote worth (1870), L. R. Q. B. 549: if export from the English port were actuaily forbidden, the charterer would be excused; so if it were a foreign port and no time was named for loading: Vide supra, Article 39, note (m). (a) Harris v. Dreesman (1954), 23 L. J. Ex. 210. ... Cuse 8.-A ship was chartered to proceed to X. "and there load grain; the cargo to be brought to and taken from alongside the ship at the ports of loading and discharge at the charterer's expense and risk thirty running days for loading. detention by ice not to be reckoned as laydays." All grain loaded at X. was brought by river from U., ninety miles off. Owing to ice between U. and X. the cargo was detained in transit to X. Held, that the conveyance from U. by water, being the only method used, must be considered as part of the act of loading, and that the exception as to ice relieved the charterer from liability (b). The Case 9.-A ship was chartered for an outward and homeward voyage; she was loaded and despatched on her outward voyage, but captured and brought back for adjudication; her cargo was taken out and sold. owner on receiving her back offered her again to the charterers to carry the outward cargo. Held, that he was not entitled to do so (c). Case 10.-A ship chartered with thirty running days for loading finished her loading on February 25, but owing to a fire at the custom-house her clearances could not be obtained till March 9, when she sailed. Held, that, as it was the duty of the owner to obtain clearances, the charterer was not liable for the delay (d). Case 11.-A ship was chartered to discharge in forty-eight hours, except in case of strike... detention by railway or cranes or any other cause beyond the control of the charterers which may impede the ordinary lading and discharging of the vessel; owing to a railway strike, railway waggons to receive the coal were not forthcoming; the cargo could have been discharged on to the quay. Held, that, the charterers were not protected by the exceptions (e). Article 43.-" Alongside." In ordinary circumstances goods to be brought, or taken from "alongside" must be delivered immediately alongside, (b) Hudson v. Ede (1868), L. R. 3 Q. B. 412, as explained by Lord Selborne in Coverdale v. Grant (1884), 9 App. C. 477. The dictum of Willes, J., approved by the Court in Hudson v. Ede, that "whenever there was no access to the ship by reason of excepted perils from any one of the storing places from which goods were conveyed direct to the ship, the exception in the charter would apply," must be taken as overruled by Coverdale v. Grant, unless " See also Stephens v. Harris (1887), 57 L. J. Q. B. 203. Falk (1888), 6 Asp. M. C. 288. (c) Smith v. Wilson (1817), 6 M. & S. 78. any one means "all." Cf. Allerton SS. Co. v. (d) Barrett v. Dutton (1815), 4 Camp. 333. On a charter that the ship "should be consigned to charterer's agent free of commission," and cargo to be taken from vessel free of any expense to the ship; Held, that the charterers must clear ship and cargo, free of expense to the owner: Russell v. Griffith (1860), 2 F. & F. 118. When a ship was chartered to proceed with cargo to F. "where the ship shall be consigned to charterer's agents inwards and outwards, paying the usual commission;" Held, not to bind the shipowner to take a homeward cargo from F. from charterer's agents, but only, if he took any cargo at F., to employ charterer's agents for the ship-broking work: Cross v. Pagliano (1870), L. R. 6 Ex. 9. The broker's work and the Custom's work are usually provided for by separate clauses in the charter. "The ship to be consigned to ," for the broker's work, and "the ship to be reported by for the Customs work. (e) Granite SS. Co. v. Ireland (1891), 19 Sc. Sess. C. 124. Cf. Kruuse v. Drynan (1891), 18 Sc. Sess. C. 1110. 102 CHARTERER'S REFUSAL TO LOAD. i.e., to or from the ship's tackle. When it is clear from the charter that it is contemplated that the ship should do something outside herself, as in the clause "cargo to be brought alongside, whence it shall be put on board by the master," "alongside" may have a wider meaning (ƒ). The shipowner's duty does not begin till the goods are under his charge (g). If the shipowner takes the goods for loading before they have been brought to the place to which it is the duty of the charterer under the charter to bring them, he cannot, without express agreement to that effect, claim from the charterer any extra expense incurred in so doing (h). Article 44.-Charterer's refusal to load. If the charterer expressly refuses to load the vessel, the shipowner need not wait till the end of the days allowed for loading before he can sue for a breach of the contract to load, but may treat such a refusal as final (i). If he does not accept the refusal as final the charterer may retract it, and may begin to load at any time before the lay-days have expired (k). In such a case, if the contract becomes illegal before the lay-days have expired (7), such illegality will absolve the charterer from the performance of his contract, even though he has expressly refused to load before the contract becomes illegal, provided that the owner has not previously accepted such a refusal as final (k). (f) Holman v. Dasnieres (1886), 2 Times L. R. 480, 607. As to the liability of the shipowner in such a case, see Nottebolm v. Richter (1886), 18 Q. B. D. 63. Where salt discharged in buckets was lost between ship and quay, it was held that the ship had not fulfilled her obligation to deliver the cargo "alongside": Avon SS. Co. v. Leask (1890), 18 Sc. Sess. C. 280. But cf. The Nija (1892), P. 411. (9) Per Lord Selborne in Cocerd le v. Grant (1884), 9 App. Cas., at p. 475. See also British Columbia Co. v. Nettleship (1868), L. R. 3 C. P. 499. (h) Holman v. Dasnieres (1886), 2 Times L. R. 480, 607. In Fletcher v. Gillespie (1826), 3 Bing. 635, there was such an express agreement. (i) Danube Co. v. Xenos (1863), 13 C. B., N.S. 825. (k) Reid v. Hoskins (1856), 6 E. & B. 953. () As in Esposito v. Bowden (1857), 7 E. & B. 763; Avery v. Bowden (1856), 6 E. & B. 953, 962. Case 1.-A. by his agent agreed to carry C.'s goods in his ship, the shipment to commence on August 1. On July 21, A. wrote to C. saying that his agent had no authority to make the contract; on July 23, A. stil repudiated it, but offered a substituted contract. C. gave A. notice that he would hold A. bound by the original contract, but that, if A. failed to perform it, C. would make other arrangements. On August 1, A. wrote that he was prepared to ship the goods, making no reference to the original contract. C. declined, having made other arrangements. Held, that C. had a right to treat A.'s repudiation as a final breach (m). Case 2.-An English ship was chartered to proceed to X. and there load a cargo in forty-five running days. The vessel was ready to load on March 9; between March 1 and April 1 the charterer repeatedly refused to load, but the captain stayed on at X. ready to load. On April 1, and before the expiration of the running days, war broke out between England and Russia; the captain finally sailed on April 22. Held, that, as the captain had never accepted the refusal to load as final, the charterer had the whole of the running days to perform his contract in, and, if before then the performance became illegal, he was discharged (n). Demurrage: see Section IX., Articles 128-135, post. Article 45.-Loading. Stipulations as to loading or unloading in a charter or bill of lading are to be construed with reference to the customs of the port of loading or discharge (o), unless such customs contradict or vary express stipulations in the charter or bill of lading (p). The practice of one or some merchants at a port will not make a custom (q), but, where the practice is universally (m) Danube Co. v. Xenos (1863), vide supra. This case follows the principle of Hochster v. De la Tour (1853), 2 E. & B. 678; Frost v. Knight (1872), L. R. 7 Ex. 114, discussed in Johnstone v. Milling (C.A.) (1886), 16 Q. B. D. 460. (n) Reid v. Hoskins (1856), 6 E. & B. 953. (0) Carali v. Xenos (1862), 2 F. & F. 740, seems to shew that it may not be sufficient to follow the usual custom of the docks, if unusual damage can be prevented from occurring by special exertion. (p) Per Lord Blackburn in Postlethwaite v. Freeland (1880), 5 App. C. 599, at p. 613, who curiously enough omits the qualification that the custom must not contradict the writing: Cuthbert v. Comming (1856), 11 Ex. 405; Leidemann v. Schultz (1853), 14 C. B. 38; Pust v. Dowie (1864), 5 B. & S. 20; The Scandin 10 (1882), 51 L. J. Ad. 93. See also Benson v. Schneider (1817), 7 Taunt. 272; Nielsen v. Neame (1884), 1 C. & E. 288. (1) Lawson v. Burness (1862), 1 H. & C. 396; Newall v. Rojal Exchange Co. (1885), 33 W. R. 342, 868. Royal Exchange Shipping Co. v. Dixon (1886), |