the shipowner has an opportunity to remedy it, he is bound to remedy it before proceeding on the voyage, but cannot require the charterer or shipper to wait more than a reasonable time for that purpose (c).

The shipowner will be liable in damages for loss caused by: (1) unseaworthiness at starting, unless he is expressly protected from such liability by exceptions in the charter or bill of lading (d); (2) unseaworthiness on the voyage, not covered by exceptions, even though he has no opportunity to repair it; (3) unseaworthiness on the voyage, though covered by exceptions, which he has an opportunity to repair, if he proceed without repairing (e).

This implied undertaking arises not from the shipowner's position as a common carrier, but from his acting as a shipowner (f).

Note. In time policies of insurance there is no implied warranty of initial seaworthiness (g) owing to the hardship of requiring the shipowner to undertake that his vessel is scaworthy at a time when she is at sea beyond his control, a time at which such policies frequently begin to run. There is also the difficulty of deciding what constitutes seaworthiness for a definite time, but for unknown voyages. These considerations do not apply so strongly to time charters, which usually, though not always, commence with the vessel's starting from port for a known voyage. A time charter, therefore, includes an undertaking of seaworthiness at the beginning of the time. Where several voyages are included in the charter, special provisions are frequently inserted (h). In the absence of such provisions, the owner must be held to undertake that his ship is seaworthy

(c) Worms v. Storey (1855), 11 Ex. 427; The Rona (1884), 51 L. T. 28; Thin v. Richards (1892), 2 Q. B. 141; Assicurazioni v. Bessie Morris S.S. Co. (1892), 2 Q. B. 652; (C. A.).

(d) As in The Laertes (1887), 12 P. D. 187. For cases where exceptions did not protect him, see The Glenfruin (1885), 10 P. D. 103; The Undaunted (1886), 11 P. D. 46; Seville Co. v. Colvils & Co. (1888), 15 Sc. Sess. C., 4th Ser. 616; Gilroy v. Price (1893), A. C. 56.

(e) Worms v. Storey (1855), 11 Ex. 427; Thin v. Richards (1892), 2 Q. B. 141. (f) Kopitoff v. Wilson (1876), 1 Q. B. D. 377. A tug-owner also impliedly contracts that his tug is properly equipped and supplied with coals: The Undaunted (1886), 11 P. D. 46. But see, Robertson v. Amazon Tug Co. (1881), 7 Q. B. D. 598, negativing an implied contract of efficiency, where the tug is named; the facts there, however, were very unusual.

(g) Gibson v. Small (1853), 4 H. L. C. 353.

(h) See Ripley v. Scaife (1826), 5 B. & C. 167; Havelock v. Geddes (1809), 10 East, 555.

on leaving each place where he has an opportunity to remedy unseaworthiness (i).

Note 2.-Seaworthy: that the ship should be in a condition to encounter whatever perils a ship of that kind and laden in that way might be fairly expected to encounter in making such a voyage at such a time of year. Thus, the ship must be properly ballasted and dunnaged (k). A ship chartered to carry gunpowder must have the magazine required by the Board of Trade regulations. The shipowner must provide the ship with all necessary documents for the voyage (1); but in Wilson v. Rankin (m), the certificate of the port of loading as to stowage, the absence of which did not increase the risk of the voyage, or affect the admissibility of the ship at her port of discharge, was held not an essential to seaworthiness.

Case 1.-F. shipped goods under a bill of lading, which excepted "perils whether or not arising from negligence of A.'s servants, risk of craft or hull, or any damage there to, &c." Seawater entered through the negligence of some of the crew in leaving a lower port insufficiently fastened. Held, that if this were so at the beginning of the voyage the ship was then unseaworthy, and the exceptions of the bill of lading did not protect the shipowner, as they do not apply till the voyage has begun (n). That such a bill of lading contained an implied undertaking that the ship was, at the time of its departure, reasonably fit for accomplishing the services which the shipowner engages to perform (0).

Case 2.-A ship was chartered to proceed to a wharf in the river X., and there take on board a cargo, and proceed to Z. She was seaworthy when she began to load, but unseaworthy when she put to sea. Held, that the owner undertakes that the ship shall be seaworthy for the intended voyage at the time of her sailing on it. That what is seaworthiness for loading in harbour may be unseaworthiness for the voyage. That the ship may be, without any breach of the undertaking, unseaworthy for the voyage while in port, if she is seaworthy for loading, but will break the undertaking if she leaves port in that condition (p).

Case 3.-A ship was chartered to proceed to the East Indies and take

(Worms v. Storey (1855), 11 Ex. 427; The Rona (1884), 51 L. T. 28; Thin v. Richards (1892), 2 Q. B. 141.

(k) Vide Article 49.

(Levy v. Costerton (1816), 4 Camp. 389; Dutton v. Powles (1861), 30 L. J., N. S. Q. B. 169.

(m) (1865), L. R. 1 Q. B. 162.

(n) In charters, both the carrying voyage, and the chartered voyage, which need not coincide with the carrying voyage; in bills of lading, the carrying voyage: Hudson v. Hill (1874), 43 L. J. C. P. 273; Barker v. McAndrew (1865), 18 C. B., N. S. 759.

(6) Steel v. State Line Steamship Co. (1877), L. R. 3 App. C. 72; cf. Gilroy v. Price (1893), A. C. 56.

(p) Cohn v. Davidson (1877), 2 Q. B. D. 455; in Kopitoff v. Wilson (1876), 1 Q. B. D. 377, in which armour-plates broke loose from their stowage and sunk the ship, the question left to the jury was: "Was the ship at the time of sailing in a state, as regards the receiving and stowing of the plates, reasonably fit to encounter the ordinary perils that might be expected at a voyage at that season?"

on board a cargo of, inter alia, wet sugar. The ship was seaworthy for any cargo except wet sugar, for which she had not pumps of sufficient capacity. Held, that the charter implied an undertaking that the ship was fit to carry wet sugar, and that, as the ship could not be made fit without a delay unreasonable under the circumstances of the contract, the charterer was justified in throwing up the charter (q).

Case 4.-A ship was chartered on March 4, "for twelve months, for as many consecutive voyages, as the said ship can enter upon after completion of the present voyage" from X. to Z. When the ship had completed that voyage, she was found to be unseaworthy, and the necessary repairs delayed her for two months. The charterer threw up the charter. Held, by the whole Court, that he was justified. By Brett, J., on the ground that the ship was not reasonably fit for the purpose for which she was chartered, and could not be made fit within any time which would not have frustrated the object of the adventure (r). By the rest of the Court (s) on the ground that time was of the essence of the contract, and that the charterer was not bound to accept the ship for a time shorter than or substantially different from that which he had contracted for (t).

Case 5.-F. shipped cattle under a bill of lading agreeing that the shipowner was not liable for accidents, disease or mortality, and under no circumstances for more than £5 per animal. The ship, after carrying a cargo of cattle on a previous voyage, was improperly cleaned, and F.'s cattle took foot and mouth disease. Held, there was a duty on the shipowner to have the ship reasonably fit for the carriage of the goods he had contracted for, and that, such duty being neglected, the limitations of liability did not apply (u).

Case 6.-A ship was chartered, "then being tight, staunch and strong," to proceed from X. to Z., "all other unavoidable (x) hindrances, dangers and accidents of the seas excepted." She was seaworthy when she started, but became unseaworthy by excepted perils during the voyage, and put into a port, where she could have been repaired. She proceeded to sea without repairs. Held, that she was not bound to prepare or proceed, but if she wished to proceed, she must repair, and that the owner was liable for damage on the further voyage, caused by the unseaworthiness of his vessel (y).

Case 7.-A vessel was damaged while on her voyage by decks straining, and the master, having an opportunity to repair, proceeded without caulking the decks. In consequence the cargo was damaged. Held, that the shipowner was liable for such damage (z).

(9) Stanton v. Richardson (1875), 45 L. J. (H. L.) 78.

(r) It seems that this is more in accord with principle than the other view; if time were of the essence of the contract, one day's delay would free the charterer, but the Court recognise the other position in the phrase a substantially different

time."

(s) Mellish, L.J., Amphlett, J.A., Kelly, C.B.

(t) Tully v. Howling (1877), 2 Q. B. D. 182.

66

(u) Tattersall v. National S. S. Co. (1884), 12 Q. B. D. 297.

(x) Unavoidable Unavoidable by ordinary despatch and diligence. Granger v. Dent (1829), M. & M. 475.

(y) Worms v. Storey (1855), 11 Ex. 427.

(2) The Rona (1884), 51 L. T. 28. Cf. Thin v. Richards (1892), 2 Q. B. 141, where a vessel having liberty to call at ports on her voyage, started with a supply of coal sufficient to take her to her first port of call, insufficient to take her the whole voyage, and did not take fresh coal on board at her port of call. She was

Case 8.-A ship, chartered to carry tea, carried antimony as ballast. The charterers, alleging that the fumes of antimony were prejudicial to tea, refused to load. Antimony in fact was not prejudicial to tea. Held, that, the ship being in fact fit to carry the cargo, the fact that there was a general belief that it was unfit was no defence to the charterer (a).

Note. It is not now unusual to find in bills of lading a clause limiting this undertaking to one that due diligence has been used to make the ship seaworthy: e.g., "All the above exceptions are conditional on the ship being seaworthy when she sails on the voyage, but any latent defects in the machinery shall not be considered unseaworthiness, provided the same do not result from want of due diligence of the owners, or any of them, or the ship's husband or manager;" or "It is expressly declared that the company are not liable for loss or damage occasioned by any defects whatsoever in the hull, machinery, or equipment of this vessel ... whether such defects existed before the commencement of or arose or developed during the voyage, provided all reasonable means have been taken to make the vessel seaworthy" (b).

A common Liverpool exception is "unseaworthiness of the vessel at the commencement of the voyage, provided all reasonable means have been taken to provide against the same.' A few bills go so far as even to negative liability even for unseaworthiness caused by negligence, e.g., "In accepting this bill of lading the shipper expressly agrees that the steamer is seaworthy and reasonably fit for the carriage of the cargo herein contracted to be carried (c), at the time of starting on the voyage, and under no circumstances is such seaworthiness or fitness to be questioned;" and, again, "not liable for act, neglect, or default of any person or persons in providing, despatching, and navigating the ship."

Article 30.-Undertaking of reasonable Despatch.

The shipowner impliedly undertakes that his vessel shall be ready to commence the voyage agreed on, and to load the cargo to be carried, and shall proceed upon and com

lost through insufficient coal. The shipowners were held liable by the C. A. (1) if the voyage was one voyage, because the ship was unseaworthy for that one voyage at its commencement, (2) if it was a voyage in stages, because the ship was unseaworthy on leaving the port of call. Cf. Biccard v. Shepherd (1861), 14 Moore P. C. 471, and Dixon v. Sadler (1839), 5 M. & W. 405.

(a) Towse v. Henderson (1850), 4 Ex. 890.

(b) These two exceptions bear the mark of The Glenfruin (1885), 10 P. D. 103. See other clauses in The Laertes (1887), 12 P. D. 187, where the shipowner was held protected by exceptions limiting the warranty of seaworthiness.

(c) This bears the mark of Tattersall v. National S.S. Co. (1884), 12 Q. B. D.

plete the voyage agreed on, in a time which is reasonable having regard to the charterer's or shipper's voyage or adventure (d), i.e., in such a time that in a commercial sense the commercial speculation entered into can be carried out (e).

If one of the parties is prevented from complying with this undertaking by obstacles not known to the parties when they entered on the charter (f), and which cannot be removed within a reasonable time as defined above, the other party, whether charterer or shipowner, may throw up the charter (g); whether shipowner or shipper he may repudiato the contract contained in the bill of lading (h).

If the obstacle to performance is one of the excepted perils, no action will lie against the party so prevented for his failure to perform the contract. If the obstacle is not covered by the exceptions, an action will lie against the party failing to perform his contract.

If the delay, though unreasonable, is not such as to frustrate the commercial purpose of the adventure, it will be a ground for an action for damages, but will not justify the repudiation of the charter (¿).

Case 1.-A ship was chartered in November, 1871, to proceed with all possible despatch, dangers and accidents of navigation excepted, from Liverpool to Newport, and there load iron for San Francisco. She sailed from L. to N. on January 2, 1872, and stranded on the way on January 3. The necessary repairs took till the end of August. On February 15, the charterers threw up the charter. The jury found that the time necessary for getting the ship off and repairing her was so long as to put an end in

(d) Jackson v. Union Marine Insurance Co. (1874), L. R. 10 C. P. 125; Tully v. Howling (1877), 2 Q. B. D. 182; dicta of Judges in Rankin v. Potter (1872), L. R. 6 H. L. 83; McAndrew v. Adams (1834), 1 Bing. N. C. 29; Fowler v. Knoop (1878), 4 Q. B. D. 299 (unloading). Assicurazioni v. Bessie Morris (1892), i Q. B. 571, at p. 577; (C. A.) (1892), 2 Q. B. 652. See also Donaldson v. Little (1882), 10 Sc. Sess. Cases, 4th Ser., 413; Mackenzie v. Liddell (1883), ibid. 705.

(e) See note 1; post, p. 75.

(f) Medeiros v. Hill (1832), 8 Bing. 231.

(4) Jackson v. Union Marine Insurance Co. (1874), vide supra; Geipel v. Smith (1872), L. R. 7 Q. B. 404.

(h) See note 2; post, p. 76.

(i) Clipsham v. Vertue (1843), 5 Q. B. 265; Tarrabochia v. Hickie (1856), 1 H. & N. 183; McAndrew v. Chapple (1866), L. R. 1 C. P. 643; cf. Collard v. Carswell (The Victoria) (1892), 19 Sc. Sess. C. 987, where two days' delay in taking delivery was held not to justify repudiation.