get." She reached the mouth of the Danube, ninety-five miles from G., on November 5, but there was not then enough water to enable her to cross the bar: she remained there till December 11, when the anchorage was no longer safe, and she accordingly proceeded to Odessa, the nearest safe port. There was water enough on the bar on January 7. Held, there had been no performance of the charter; the rising of the Danube at the beginning of the year being a well-known incident in Danube navigation, the master was bound to wait. The vessel was bound to get within the ambit of the port before discharging, though she might not reach the actual harbour (x).

Case 4.-Charter "to Taganrog, or so near as she could safely get and deliver the cargo afloat." On arriving at Kertch, three hundred miles by sea, seven hundred by land, from T., the ship was prevented by ice from entering the Sea of Azof. She claimed under the clause to deliver at Kertch. Held, this was not a delivery under the charter, the obstruction being only temporary, and such as must be incident in every voyage to a frozen sea (y).

Case 5.-Charter "to Taganrog, or so near as she may safely get." Owing to Turkish blockade the ship was unable to reach T., and accordingly proceeded to Constantinople, the nearest safe port, and claimed to deliver her cargo there. Held, not a delivery under the charter, the clause being intended to meet the case of the ship not being able absolutely to get to the very place or dock stipulated, but not enabling the vessel to go to any port, to which under the circumstances it is a reasonable course for the master to go (z).

Note. The question of the disposition of the cargo on bills of lading or charters, where the vessel is prevented from reaching her port of destination, is now often dealt with by clauses of this kind:- In case of the blockade or interdict of the port of destination, or if without such blockade or interdict the entering of the port of discharge should be considered unsafe by reason of war, infectious disorder, quarantine, disturbances, ice, or from any other cause, the master to have the option of landing the goods at any other port he may consider safe, at shipper's risk and expense, when the ship's responsibility shall cease; or :-" when the navigation of the continental ports is obstructed by ice, the goods to be landed at the nearest available port at the risk and expense of the consignor, such delivery being considered final," or:

"Should hostilities render it unsafe for the steamer or her cargo to proceed to the port of destination, she has liberty to discharge her cargo at any near available port, and there end her voyage, giving shippers due notice of such fact."

This power is sometimes given the master "in case of apprehension of such prevention, or in case of war or hostilities rendering the further prosecution of the voyage in the opinion of the master or owners unsafe." Without such clauses as these,

(x) Schilizzi v. Derry (1855), 4 E. & B. 873. Lord Campbell, p. 886, compared detention by insufficient water to detention by ice.

(y) Metcalfe v. Britannia Iron Works (C.A.) (1877), 2 Q. B. D. 423.

(*) Custel v. Trechmann (1884), 1 C. & E. 276 (Stephen, J.), see note (u), ante.

though the master might delay or deviate to avoid danger, he could not land the goods or give up the intention of proceeding to the original port of destination, at any rate till such delay had ensued as to defeat the commercial purpose of the adventure; semble, even then he would not be entitled to freight; though he might be entitled to the expenses of delivery. (See Articles 138, 139, 143.)


Article 37.-" Safely."

Safely" means "safely as a laden ship" (a). The ship is not therefore bound to load part of her cargo in the port, and then take on board outside the port the part of the cargo she could not safely load in port (b). Neither is she bound to unload before reaching the port, to enable herself to proceed to a port she could not reach in safety at her laden draught of water (c).



Case 1.-A ship was chartered "to a safe port as ordered, or as near thereto as she can safely get, and always lay and discharge afloat." ship was ordered to Lowestoft, where the vessel could not lie always afloat," without previously discharging some of her cargo outside the port. Held, that the shipowner was not bound to go to such a port, but only to one where the vessel in her laden draught of water could always lie afloat safely (d).

Case 2.-A ship was chartered to X., "or so near thereto as she can safely get." X. is a bar-harbour; the ship was loaded inside the bar as deep as the water on the bar would allow, and the charterer then required her to complete her loading at her own expense outside the bar. Held, that the ship was not required by the charter to do so, for she could not be said to "safely get" to a place from which she could not safely get away with a full cargo, and her going inside the bar was therefore only for the charterer's accommodation. According to the terms of the charter, she need not have crossed the bar at all (e).

(a) Shield v. Wilkins (1850), 5 Ex. 304.

(b) The Alhambra (1881), 6 P. D. 68 (C.A.). Shield v. Wilkins (1850), 5 Ex. 304. See also Hayton v. Irwin (1879), 5 C. P. D. 130 (C.A.).

(c) Shield v. Wilkins, vide supra.

(d) The Alhambra, vide supra.

(e) Shield v. Wilkins, vide supra. If she had not crossed the bar, the charterer must have borne the expense of loading outside by lighters: Trindade v. Levy (1860), 2 F. & F. 441; but if, having gone inside, she had loaded a full cargo, and been obliged to unload to get out, she must have paid the expense of loading outside, and must carry the full cargo to earn her freight. General Steam Navigation Co. v. Slipper (1862), 11 C. B., N.S. 493. Where la vessel chartered to load always afloat in a dock could do so, but could not leave the dock except at spring tides:-Held, that she was bound to load in the dock and wait for spring tides, and was not entitled to go to another dock when partly loaded and require the charterers to lighter her cargo to her. The Curfew (1891), P. 131.

Case 3.-A ship was chartered to proceed "to a safe port, or as near thereto as she can safely get, and deliver same to discharge as customary with all possible dispatch, cargo to be taken from alongside ship at merchant's risk and expense." She was ordered to Z., but could get no nearer than Y. The shipowner claimed to deliver enough at Y., to lighten his vessel, at charterer's expense; the charterer set up a custom at the port of Z. that the ship must get to Z. at her own expense. Held, that the custom was inconsistent with the contract, and the charterer must pay the expense of lightening (f).

Note 1.—At all times of the Tide and always afloat.—This clause will relieve the ship of the duty of waiting in a tidal river or harbour, till the tide serve her to proceed to the dock or wharf where she is to discharge: under it the charterer will be required to name a loading or discharging berth, where she can lie "always afloat at all times of the tide."

Case. A ship was chartered to Z., " or so near thereto as she may safely get, at all times of tide and always afloat." She arrived at Y., on September 5, but the tides would not allow her to proceed to Z. "always afloat," till September 9. Held, that the vessel had "arrived at Z.," for purposes of demurrage, on September 5 (g). If chartered "to load always afloat," and she is ordered to a berth where she can lie always afloat, but which she can only get to and from at certain times of tides, she is bound to wait for suitable tides (h).

Note 2.-A dock as ordered on arriving, if sufficient Water.

Case.-A ship was chartered to proceed to Z. to discharge in " a dock as ordered on arriving, if sufficient water, or so near thereto as she may safely get, always afloat." On arriving at Z. she was ordered to the C. dock, but there was not for four weeks sufficient water in the C. dock. Held, that there must "be sufficient water" in the dock, when the order is given, and that, if there is not, the ship is not bound to discharge in the dock named (i).

Note 3.-If the above statement of the law is correct, the Scotch case of Hillstrom v. Gibson (k), and the dicta following it

(f) Hayton v. Irwin (1879), 5 C. P. D. 130. There was no express decision that the ship was bound to proceed to Z. after lightening. It is submitted that she was not, if Y. was outside the port of Z. (The Alhambra (1881), 6 P. D. 68), and if Y. was in the port of Z. the lay-days would begin to count from her readiness to unload at Y., in the absence of any custom of the port. Nielsen v. Wait (1885), 16 Q. B. D. 67.

(g) Horsley v. Price (1882), 11 Q. B. D. 244. Without the clause "at all times of the tide," the ship must have waited at her own expense till the 9th: Parker v. Winlow (1857), 7 E. & B. 942.

(h) The Curfew (1891), P. 131: see note (e), ante.

(i) Allen v. Coltart (1883), 11 Q. B. D. 782.

() (1870), 8 Sc. Sess. C., 3rd Ser. 463. This case must be compared with Dickinson v. Martini (1874), 1 Sc. Sess. Cases, 4th Ser. 1185, where, the master having lightened at Greenock, the time so spent was counted in the lay-days, though the Court recognized the authority of Hillstrom v. Gibson, as binding the master to proceed to Glasgow after lightening.

in the English cases of Capper v. Wallace (1) and Nielsen v. Wait (m) cannot be accepted as sound law.


In Hillstrom v. Gibson, a ship was chartered abroad to take a full cargo to a safe port in the United Kingdom, or so near thereunto as she may safely get, and lay afloat at all times of

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"and so end the voyage." The ship was ordered to Glasgow, and arrived at " the Tail of the bank," an open roadstead off Greenock, 22 miles from Glasgow. The ship then drew 18 feet of water; low water at Glasgow giving 16 feet. The master claimed to deliver at "the Tail," but the charterers required bim to lighten one-fifth of the cargo into lighters at their expense, and then proceed to Glasgow, this being the custom of the port of Glasgow. The master lightened and proceeded to G., but alleged that his lay-days began from his arrival at "the Tail," and claimed demurrage accordingly. The charterers alleged that the lay-days began on the ship's arrival at G.

The Court of Session, Lord Deas dissenting, held that the master was bound to construe the document reasonably, and therefore, if a lightening of only one-fifth of the cargo would enable him to proceed to the named port, it was reasonable that he should do so, and he was bound to do so. It is difficult to see why, if this decision is correct, the ship should not be required to bear the expense of unloading necessary to enable her to fulfil her voyage.


But, in the case of The Alhambra (n), almost similar facts arose from a different point of view. In Hillstrom v. Gibson the master had proceeded to the port named, one which he could not enter with a full cargo, but had stopped when he could proceed no further without lightening, alleging that that was as near as he could safely get," though a custom was asserted to lighten in order to "safely get further." In The Alhambra, with a similar port, and a similar custom alleged, the master refused to go there at all, asserting that it was not a safe port. The charterers sued him for breach of contract, and Sir R. Phillimore decided in their favour, but the Court of Appeal reversed his decision. Brett, L.J., said: "The case of Shield v. Wilkins (0) seems to me to be authority precisely in point as to the principles of this decision. I will say nothing about Hillstrom v. Gibson. I will reserve my view of how far one is bound to follow that case, until the point which was decided in it arises. It does not seem to be applicable to the present case." But he also said: "The condition on which the ship was entitled to go into this port was as fully loaded, and she was not bound to

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unload before she got into that port." If this is good law, Hillstrom v. Gibson is clearly bad; the only point of difference between the two cases is that in the Scotch case about a fifth of the cargo had to be unloaded, in the English case more than a third. But none of the Court of Appeal lay stress, as some other cases do (p) on the amount of lightening All of them carefully define a "safe port" as a port into which the vessel can get fully loaded and not lightened, and reject the alleged custom to lighten outside the port.

If so, Glasgow, under the facts of Hillstrom v. Gibson, was not "a safe port"; the ship was either not bound to go there at all, or only as near as she could get safely as a loaded ship; i.e., to "the Tail," and there discharge. Her lay-days would begin from her arrival at her legal discharging berth, and the master's claim for demurrage was justified.

From this point of view, Brett, L.J.'s, remark that Hillstrom v. Gibson had nothing to do with it, must be ascribed to a wish to put on one side the Scotch decision without disrespect to the important Scotch Court. The Court of Appeal expressly approve Shield v. Wilkins (q) which is the converse case of loading at a port where a full cargo cannot be loaded. In such a case a ship can either: (1) load her full cargo outside the bar, if such a loading berth is safe; (2) refuse to load at all, if a loading berth outside the bar is unsafe; (3) go in, and load such a cargo as she can cross the bar with, and no more, without being coinpelled to complete her loading outside the bar.

If Hillstrom v. Gibson is bad law in England, some of the dicta in Capper v. Wallace (r), which are avowedly based on it, cannot be supported. There a ship was chartered to take a full cargo to" a safe port, or so near thereto as she could safely get." The port named was Z., which was approached by a canal, and the vessel as loaded drew too much water to enter the canal. She proceeded to its mouth, and proposed to discharge there; the charterers required her to deliver at Z., as the master had signed bills of lading for that port. The ship took out nearly half her cargo, and then proceeded to Z.; the charterers paid the lighterage of the discharged cargo, but declined to pay the extra expense of proceeding beyond the mouth of the canal, which the owner claimed. The Court (Lush and Manisty, JJ.) held that they were liable on the ground that the quantity by which the ship was to be lightened was more than could reasonably be asked of the shipowner, and that, as the charterers had made no arrangements for receiving cargo at the mouth of the canal, the master was justified in considering the voyage at an end at the mouth of the canal. The judges went on to say (8), basing

(p) Vide post, note (u).

(q) (1850), 5 Ex. 304; but cf. The Curfew (1891), P. 131.
() (1880), 5 Q. B. D. 163.

(s) b. at p. 166.

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