In the absence of a custom of the port (i), or of words showing another intention (k), the terms "days," or "laydays," or "hours" (7), in a stipulation as to demurrage, mean "running days," or consecutive days of twenty-four hours, or consecutive hours, commencing at any hour of the day (m), and include Sundays and holidays (n).

In the absence of express stipulation (m) a part of a day or hour counts as a whole day or hour (0).

Case 1.-A ship chartered "to load and discharge as fast as the ship can work, but a minimum of seven days to be allowed merchants, and ten days on demurrage over and above the said laying days." Held, that, from the context, "days" meant "working" not running days."

The ship came into dock on Tuesday evening at 5 P.M., reached her berth on Wednesday, at 8 A.M., and continued unloading till 8 P.M. She began again at 4 A.M. on Thursday, and finished at 8 A.M. Held, she was liable for two days' demurrage (the lay-days having been exhausted at the port of loading) (0),

280.

v. Moss (1860), 29 L. J. Q. B. 206; Avon S.S. Co. v. Leask (1890), 18 Sc. Sess. C. For other cases where special stipulations as to demurrage were construed, see Marshall v. De La Torre (1795), 1 Esp. 367; Stevenson v. York (1790), 2 Chitt. 579; Sweeting v. Darthez (1854), 14 C. B. 538.

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(i) As in Cochran v. Retberg (1800), 3 Esp. 121, where a custom of the port of London to consider "days" as "working days" only, excluding Sundays and holidays, was proved and admitted. For a custom of the port negativing consecutiveness," see Nielsen v. Wait (1885), 16 Q. B. D. 67. The "running day," or day of twenty-four hours during which the ship is running, is opposed to the "working day." It has been discussed by the Scotch Courts whether a working day means only a "lawful day," that is to say running days, Sundays and lawful holidays excepted; or whether it means "days on which work can be done by the charterer or his servants." In the case of Holman v. Peruvian Nitrate Co. (1878), 5 Sc. Sess. C., 4th Ser., p. 657, it was held by the majority of the Court in regard to the port of Iquique in Peru, that "surf days," or days on which the surf prevented access to the ship's loading, and on which by a custom of the port no work was done, were "working days" as against the charterer. (They are clearly excluded by the phrase "weather-working days" used in some charters.) It was also held that the feast of San José, kept as a national holiday in Peru, was not a working day against the charterer. The number of hours in a working day during which the shipowner must load must be settled by the custom of the port or express agreement.

(k) Commercial S. S. Co. v. Boulton (1875), L. R. 10 Q. B. 346; Harper v. McCarthy (1806), 2 B. & P. N. R. 258.

() It is now usual, especially in the case of steamers, to stipulate for demurrage at so much per hour. Where "despatch money was to be paid at 10s. per hour on any time saved in loading or discharging, and four days were saved, it was held that they were to be taken as of twenty-four, and not of twelve, hours each, the "despatch money" being payable on the time saved, or running hours, and not on the working hours: Laing v. Holloway (1878), 3 Q. B. D. 437.

(m) Allan v. Johnstone (1892), 19 Sc. Sess. C. 364, where it was contended that lay-days necessarily commence at midnight.

(n) Brown v Johnson (1842), 10 M. & W. 331; Niemann v. Moss (1860), 29 L. J. Q. B. 206.

(9) Commercial S. S. Co. v. Boulton, vide supra; Hough v. Athya (1879), 6 Sc. Sess. C., 4th Ser., 961.

Case 2.-A ship was chartered "to be loaded in X. in fourteen days, and to be discharged, weather permitting, at not less than twenty-five tons per working day, holidays excepted." Held, that the days for loading must be taken as running days," the days for unloading as working days (p).

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Case 3.-A charter provided :-"Cargo to be loaded and discharged as fast as steamer can receive and deliver during working hours. If longer detained £12 per diem demurrage." Held, that saving of time at the port of discharge could not be set off against delay at port of loading (7).

Article 131.-Charterer's Undertaking:-To Load or Unload in a fixed Time.

If by the terms of the charter the charterer has agreed to load or unload within a fixed period of time (r), that is an absolute and unconditional engagement, for the non-performance of which he is answerable, whatever be the nature of the impediments which prevent him from performing it (s), unless such impediments are covered by exceptions in the charter (t), or arise from the fault of the shipowner or those for whom he is responsible (u).

Thus, after the ship is ready to load or to unload at the agreed place (x), the charterer will not, in the absence of

(p) Niemann v. Moss (1860), 29 L. J. Q. B. 206.

(1) Avon S. S. Co. v. Leask (1890), 18 Sc. Sess. C. 280; following Marshall's Case (1880), o Q. B. D. 231.

(r) The effect is the same, if the days can be calculated, as where the rate of discharge per day is fixed; but in Dobell v. Watts (1891), 7 T. L. R. 622, a clause "Cargo to be loaded as fast as vessel can receive in ordinary working hours, and to be received as customary as fast as steamer can deliver in ordinary working hours-not less than one hundred standards a day loading or discharging," was held by the C. A. not a clause obliging the charterer to receive one hundred standards a day, and so fixing the number of lay-days, but a clause for the benefit of charterers only.

(s) Per Lord Selborne in Postlethwaite v. Freeland (1880), 5 App. C. p. 599, at p. 608.

(t) For a recent illustration of this, see Granite S. S. Co. v. Ireland (1891), 19 Sc. Sess. C. 124, where the excepted peril occurred, but did not prevent the discharge of the ship, only the removal of its cargo from the quay when discharged. But see The Alne Holme (1893), P. 173.

(u) Budjett v. Binnington (1891), 1 Q. B. 35; Benson v. Blunt (1841), 1 Q. B. 870; Hansen v. Donaldson (1874), 1 Sc. Sess. C., 4th Ser., 1066, where discharge was impeded by the insufliciency of the shipowner's crew. Where loading or discharge is a joint operation, it follows from Budgett v. Binnington that the inability of the shipowner to do his part will only excuse the charterer, when it is only that which prevents the charterer from doing his share of the work.

(a) See Articles 36, 39, ante, and Tharsis Co. v. Morel (1891), 2 Q. B. 647.

express exceptions, be released from his contract by delay resulting from the crowded state of the docks (y), bad weather (z), or ice preventing loading (a), insufficient supply of cargo (b), lawful (c) orders of the authorities at a foreign port (d), or strikes of persons for whom the shipowner is not responsible, even though the shipowner is prevented by the same cause from performing his share of the work (dd).

The provisions of the charter as to fixed days must be limited to the ports to which they expressly refer (e), and a reasonable time will be allowed for loading or unloading at ports not expressly provided for (ƒ).

Case 1.-A ship was chartered to unload in the London Docks, forty days being allowed as lay-days; owing to the crowded state of the docks, the vessel was detained forty-one days over the lay-days. Held, that the charterer was liable for the delay (g). .

Case 2.-A ship was chartered to load at London, with thirty running days; owing to frost the loading of the ship was prevented. Held, the charterer was liable for the delay (h).

Case 3.--A ship was chartered to load at X., with sixty running days; while there, owing to an infectious disease on shore, communication between ship and shore was forbidden by the local government. Held, the charterer was liable for the delay (i).

Case 4.-A ship was chartered to load barley at a Russian port, with thirty running days for loading and unloading; the Russian government

(y) Randall v. Lynch (1810), 2 Camp. 352; Brown v. Johnson (1843), 10 M. & W. 331; Tapscott v. Balfour (1872), L. R. 8 C. P. 46; on which case, see note, ante, p. 92.

(z) Thiis v. Byers (1876), 1 Q. B. D. 244.

(a) Barrett v. Dutton (1815), 4 Camp. 333. (b) See Article 42.

(c) Illegal orders of the authorities will not protect the charterer, who has his remedy against them: Bessey v. Evans (1815), 4 Camp. 131; Gosling v. Higgins (1808), 1 Camp. 450; The Newport (1858), Swabey, 335. Compare the principle involved in Evans v. Bullock (1877), 38 L. T. 34; Ronneberg v. Falkland Islands (1864), 17 C. B., N.S. 1; Sully v. Duranty (1864), 3 H. & C. 270; and Article 4, on Illegality.

(d) Barker v. Hodgson (1814), 2 M. & S. 267; Blight v. Page (1801), 3 B. & P. 295, note, cited also at 4 Camp. 334, by Gibbs, C.J., who was counsel in it. Where a ship otherwise ready to load is prevented from loading by quarantine, the laydays stipulated in the charter will not begin to run till the quarantine has expired: White v. Winchester (1886), 13 Sc. Sess. C, 4th Ser. 524.

(dd) See ante (u), p. 235. But ef. The Alne Holme (1893), P. 173.

(e) Marshall v. De La Torre (1795), 1 Esp. 367; Stevenson v. York (1790), 2 Chitty, 570.

(f) Sweeting v. Darthez (1854), 14 C. B. 538. See also Fowler v. Knoop (1878), 4 Q. B. D. 299.

(g) Randall v. Lynch (1810), 2 Camp. 352.
(h) Barrett v. Dutton (1815), 4 Camp. 333.
(i) Barker v. Hodgson (1814), 2 M. & S. 271.

forbade the export of barley (k). Held, the charterer was liable for failure to furnish a cargo (1).

Case 5.-A charter to discharge at Bristol allowed a fixed number of days for discharging. The custom at Bristol was that discharge was the joint act of the charterer and shipowner. Discharge was prevented by a strike of labourers, which prevented boh shipowner and charterer from performing their part of the discharge. Held, that, as the charterer was not prevented from discharging by the fault of the shipowner or persons for whom the shipowner was responsible, he was not excused for delay beyond the fixed lay-days (m).

Article 132.-To Load or Unload in reasonable Time.

If no fixed time for loading (or unloading) is stipulated in the charter the law implies an agreement on the part of the charterer to load or discharge the cargo within a reasonable time (n), and, so far as there is a joint duty in loading or unloading, that the merchant and shipowner should each use reasonable diligence in performing his part (0).

"A reasonable time" means reasonable under the circumstances then existing, other than self-imposed inabilities of either shipowner or charterer, and should be estimated with reference to the means and facilities then available at the port, and the course of business at the port (p). Thus where a strike at the port of loading or discharge prevents a diligent consignee from doing his part of the work with reasonable exertions on his part, he will not be liable for the consequent delay (p).

"Forthwith "without unreasonable delay (q).

Case 1.-G. were consignees of cargo under a bill of lading specifying no time for delivery; during the delivery a strike occurred; the shipowners were ready to do their part of the work; but G. though using all diligence

(k) Compare with this Hills v. Sughrue (1846), 15 M. & W. 253, where the shipowner who had contracted to procure and carry a cargo of guano was held liable for not loading such a cargo, though there was no guano to load. This case seems quite inconsistent with Clifford v. Watts (1870), L. R. 5 C. P. 577.

(1) Blight v. Page (1801), 3 B. & P. 295, note; see Article 4: on Illegality. (m) Budgett v. Binnington (1891), 1 Q. B. 35.

(n) Hick v. Rodocanachi, vide sub: per Lord Selborne in Postlethwaite v. Freeland (1880), 5 App. C. 608.

(0) Ford v. Cotesworth (1870), L. R. 4 Q. B., at p. 137; 5 Q. B. 544; Cunningham v. Dunn (1878), 3 C. P. D. 443 (C.A.). Cf. Clacevich v. Hutcheson (1887), 15 Sc. Sess. C., 4th Ser., 11.

(p) Hick v. Rodocanachi (1891), 2 Q. B. 626; (1893), A. C. 22, sub nomine Hick v. Raymond: per Lord Selborne in Postlethwaite v. Freeland, vide supra, at p. 609.

(1) Hudson v. Hill (1874), 43 L. J. C. P. 273.

could not do theirs. Held, that they were only bound to discharge in a reasonable time having regard to the existing circumstances; and, having used all diligence themselves, were not liable for the delay caused by the strike (r).

Case 2.-A ship was chartered to discharge in London, the charter containing no provisions as to the time of unloading. Owing to the crowded state of the docks, the ship, though discharged in her turn, was delayed forty days beyond the usual time for discharge of such ships when the docks are not overcrowded. Held, that the charterer was not liable, both parties having used reasonable diligence to get the ship discharged (s).

Case 3.-A ship was chartered to load a cargo at Valencia, without any stipulation as to time of loading. The law of Spain forbids vessels with military stores on board to load at Spanish ports. The charterer and shipowner were aware at the time of making the charter that the vessel intended to carry military stores. The ship arrived at V. with military stores on board and was refu-ed permission to load. Held, that neither party was liable to an action, as each, having used reasonable diligence to avoid the danger, was prevented by the act of a superior power (t).

Article 133.-To Load or Unload with Customary Despatch or in Customary Manner.

If an obligation to load or unload, indefinite as to time, is qualified or partly defined by express or implied reference to the custom or practice of a particular port, every impediment arising from or out of that custom or practice which the charterer or shipowner could not have overcome by the use of any reasonable diligence (u) ought to be taken into consideration (a).

(r) Hick v. Raymond (1893), A. C. 22.

(s) Burmester v. Hodgson (1810), 2 Camp. 488. So explained in Ford v. Cotesworth, sub. The case is also discussed in Hick v. Rodocanachi (1891), 2 Q. B. 626, at pp. 635, 642. Cf. (1893), A. C. p. 22.

(t) Cunningham v. Dunn (1878), 3 C. P. D. 443 (C.A.), following Ford v. Cotesworth (1870), L. R. 5 Q. B. 544. These two cases are reconcilable with such cases as Barker v. Hodgson (1814), 2 M. & S. 271, and Blight v. Page (1801), 3 B. & P. 295, note, cited in the last Article by the presence in the latter class of cases of a definite time for loading or unloading: see per Martin, B., in Ford v. Cotesworth, vide supra. See also Sjoerds v. Luscombe (1812), 16 East, 201. The parties may have expressly provided for such cases by the charter, as in Adamson v. Newcastle Insurance Association (1879), 4 Q. B. D. 462, where there was a clause "in case of war, blockade, or prohibition of export, preventing loading, this charter to be cancelled," and it was held that the occurrence of these events cancelled the charter, without any express election by either party.

(u) Carali v. Xenos (1862), 2 F. & F. 740, the shipowner had contracted to forward goods by foreign steamer, but missed the last steamer of the season; he had discharged according to the custom of the port, but could by diligence have expedited the discharge of these goods so as to catch the steamer. Held, that he was liable for the delay, apparently on the ground that he had not used what was due diligence under the circumstances.

(c) Lord Selborne in Postlethwaite v. Freelund (1880), 5 App. C. 608; Hick v.