their remarks on Hillstrom v. Gibson, "It cannot be laid down as an inflexible rule that when a ship has got as near the port as she can get, and the only impediment to proceeding further is overdraught, the master is, under all circumstances, to consider the voyage at an end. He is bound to use all reasonable means to reach the port. . . . The overdraught may be such, and the cargo so easily dealt with, that the surplus may be removed . . . without exposing the ship to any risk or the owner to any prejudice, and in such a case, if the consignee is at hand to receive the surplus cargo, we are of opinion that it would be the duty of the master to lighten the ship and proceed to the port. This is the principle laid down by the Court of Session in Hillstrom v. Gibson."

It is sufficient to compare this with the judgment of the Court of Appeal in The Alhambra, in the following year: "The condition in which the ship was entitled to go into the port was as fully loaded, and she was not bound to unload before she got into that port," to shew that the dictum in Capper v. Wallace cannot be treated as law. Hayton v. Irwin (t) only decides that, if the ship is willing to lighten and proceed, the charterer must take the cargo and pay the expense of lightening; it does not decide that the ship is bound to proceed.

The distinction between lightening for better navigation and lightening for discharge of cargo in pursuance of the contract, the jury having to decide the point, has been suggested in other cases (u). In all these, the ship had entered the port before being required to lighten, and the question was one of calculation of demurrage. But, in Nielsen v. Wait, Pollock, B., went further, and said: " Assuming Hillstrom v. Gibson to be correct, and to be properly applicable to a case like the present, it does not, in my judgment, affect the question whether the position of the place where the lightening takes place is without or within the ambit of the particular port. The point to bear in mind is, what was the substantial character of the act? Was it a part discharge in the ordinary acceptation of those words, or was it a discharge made solely with the view of lightening the ship?" The Alhambra had not been cited, yet that case had clearly decided that the shipowner was not bound to lighten outside the port.

Even if, therefore, the distinction between lightening and discharging exists within the port, it is clear that Hillstrom v. Gibson (1870), followed by dicta in the Scotch case of Dickinson

(t) (1879), 5 C. P. D. 130 (C.A.).

(u) Caffarini v. Walker (1876), Irish Rep. 10 C. L. 250; McIntosh v. Sinclair (1877), Irish Rep. 11 C. L. 456, at p. 463; Nielsen v. Wait (1885), 14 Q. B. D. 516, at 523. In Brereton v. Chapman (1831), 7 Bing. 559, cited with approval by Pollock, B., in Nielsen v. Wait, it is not stated whether the place of lightening was within or without the port, and the judges say nothing about the master's duty to lighten.

v. Martini (1874) and the English cases of Capper v. Wallace (1880), and Nielsen v. Wait (1885), is the only authority for the master's duty to lighten outside the port. The Court of Appeal affirmed Nielsen v. Wait, but on an entirely different ground, the existence of a local custom within the port (v). And it is submitted that Hillstrom v. Gibson, and the dicta referred to, cannot, in the face of The Alhambra (1881), be considered good law in England.

Article 38.-Loading under a Charter.-Duty of Shipowner.

At the port of loading the shipowner's right under a charter to require a cargo, and the charter's duty to furnish a cargo, will begin when :

(1) The ship is at the place where the carrying voyage is to begin. (Article 39.)

(2) The ship is ready to load. (Article 40.)

(3) The charterer has notice of the above facts. (Article 41.)

When these conditions are fulfilled the lay-days, or days allowed the ship for loading, begin (x).

Article 39.-The place where the carrying voyage is to begin.

The place where the carrying voyage is to begin will depend on the terms of the charter.

1. If it is "to proceed to the port of X. and there load, the ship must proceed to the usual place of loading in that port (y).

Where there are several usual places of loading, the charterer, not the owner, is entitled to decide which the ship shall load at, and has a reasonable time allowed for

(v) (1885), 16 Q. B. D. 67.

(a) See the general statement of the law by Brett, L.J., in Nelson v. Dahl (1879), 12 Ch. D. 580-585.

(y) Nelson v. Dahl, 12 Ch. D. 582, per Brett, L.J.; Brereton v. Chapman (1831), 7 Bing. 559; Kell v. Anderson (1842), 10 M. & W. 498; Cargo ex Argos (1873), L. R. 5 P. C., at p. 160. Lacour v. Donaldson (1874), 1 Sc. Sess. Cases, 4th Ser.

arriving at that decision; but he must choose a berth that is free, or likely to be free in a reasonable time (z). If the owner, without waiting a reasonable time for the decision of the charterer, has already proceeded by his own choice to one, he must bear the expense of proceeding to another, if ordered by the charterer (a).

If within the port there is a custom to require the loading or unloading to take place at various parts of the port, the shipowner must, in the absence of special clauses, comply with the custom. The commencement and mode of calculation of the lay-days will depend on the custom of each particular port (b), but in the absence of any custom will commence on the ship's arrival at the first place in the port where such vessels usually load or unload, and will include the time spent in moving the ship to other usual places of loading or discharge (c).

2. If the charter runs "to proceed to a (named) dock, and there load," or "to a dock as ordered on arrival," in the absence of any special custom to the contrary (d), the ship will have fulfilled her obligations when she gets into the dock, though she may not reach that part of the dock where she is to load (or discharge) for some time afterwards (e).

She must wait a time commercially reasonable to get into the dock, and her lay-days do not commence till she gets in (f).

(z) Per Bowen, L.J., in Tharsis Co. v. Morel (1891), 2 Q. B., at p. 652. Cf. Jaques v. Wilson (1890), 7 T. L. R. 119.

(a) The Felix (1868), 2 L. R. Adm. 273. Parker v. Winlow (1857), 7 E. & B.

942.

(b) Nielsen v. Wait (1885), 16 Q. B. D. 67.

(c) Caffarini v. Walker (1876), Ir. Rep. 10 C. L. 250; McIntosh v. Sinclair (1877), Ir. Rep. 11 C. L. 456; Nielsen v. Wait, vide supra, et per Pollock, B., 14 Q. B. D. 523. Bremner v. Burrell (1877), 4 Sc. Sess. Cases, 4th Ser. 934. See Articles 129, 130, on Demurrage, post. Where the ship is to load at "one of the usual places of loading," it will be a question for the jury what transactions amount to a "loading at a usual place," and the charterer will be liable for the extra expense of loading at other places after the first "usual place." Brown v. Johnson (1842), Car. & M. 440.

(d) S.S. Norden v. Dempsey (1876), 1 C. P. D. 654.

(e) Tapscott v. Balfour (1872), L. R. 8 C. P. 46 approved, and Davies v. Mc Veagh (1879), (C.A.) 4 Ex. D. 265 explained, in Tharsis Co. v. Morel (1891), 2 Q. B. 647; Randall v. Lynch (1810), 2 Camp. 352; Brown v. Johnson (1842), 10 M. & W. 331.

(f) Dahl v. Nelson (1881), 6 App. Cas. 38. supra.

Tharsis Co. v. Morel (1891), vide

3. If the charter is "to proceed to a particular place in the dock," or to a named quay or wharf, or " to a berth as ordered," the ship must proceed to that particular place (g), and must wait a time commercially reasonable in order to do so, her lay-days not counting till her arrival (h).

4. If the charterer will not name a wharf or dock, where none is named in the charter, and there is more than one in the port, he will be liable for any damages occasioned by the delay (i), but he is not bound to name one that can be reached immediately (k).

Note 1." To proceed to a ready quay berth, as ordered by charterer."-Under this clause, the charterers were held bound to name, on the ship's arrival, a berth then ready for her to load in, and were liable for any damages caused by their delay (1).

Note 2.-The decision of the C. A. in Tharsis Co. v. Morel (m) renders it possible to determine the conflict between the two lines of cases of which Tapscott v. Balfour (n) and Murphy v. Coffin (o) are the best type on the one hand, and Ashcroft v. Crow Colliery Co. (p) and Davies v. McVeagh (q) on the other. The question in dispute was whether, when a ship was chartered to load or discharge at a particular berth, and was in the port ready to proceed to that berth, but was prevented by being unable to reach the berth through no fault of her own, the loss occasioned by the delay was to fall on the shipowner or on the charterer. The C. A. in Tharsis Co. v. Morel (m) have now determined, having the conflicting cases before them, that the lay-days do not begin, whether there is a fixed period for loading or discharge, as in Tapscott v. Balfour (n), or a general clause, such as "with all despatch as customary," as in Tharsis Co. v. Morel (m), until the ship has reached the place of discharge

(g) Tharsis Co. v. Morel (1891), 2 Q. B. 647, Murphy v. Coffin (1883), 12 Q. B. D. 87; Strahan v. Gabriel (1879), cited by Brett, L.J., at 12 Ch. D. 590; 3 Sc. Sess Cases, 4th Ser. p. 419.

(h) Parker v. Winlow (1857), 7 E. & B. 942; Bastifell v. Lloyd (1862), 1 H. & C. 388. Article 36. Mere arrival in fact will not do; the ship must be rightfully there. Cf. Good v. Isaacs (1892), 2 Q. B. 557.

(i) Stewart v. Rogerson (1871), L. R. 6 C. P. 424: where, the charter being to load at a good and safe wharf, the charterer refused to name one, and the shipowner recovered as damages the freight he had lost, through his ship's being attached by the Court of Admiralty owing to the delay. (k) Murphy v. Coffin (1883), 12 Q. B. D. 87.

2 Q. B. 647.

Tharsis Co. v. Morel (1891),

() Harris v. Marcus Jacobs & Co. (1885), 15 Q. B. D. 247.

(m) (1891), 2 Q. B. 647.

(n) (1872), L. R. 8 C. P. 46.

(0) (1883), 12 Q. B. D. 87.

(P) (1874), L. R. 9 Q. B. 540. (7) (1879), 4 Ex. D. 265.

named in the charter, or selected by the charterer under any option expressed or implied in the charter. After this decision it is possible to estimate the binding force of previous conflicting decisions with some accuracy.

1. Tapscott v. Balfour (r), Strahan v. Gabriel (s) and Murphy v. Coffin (t) are good law (u).

2. The Carisbrooke (v), which declined to follow Murphy v. Coffin (t), is expressly overruled; and the Scotch case of Dall' Orso v. Mason (a) will not be followed in England, and is, it is submitted, erroneous (y).

3. Davies v. Mc Veagh (z) is to be explained in accordance with the view of Brett, L.J., in Nelson v. Dahl (a), as a decision in accordance with Tapscott v. Balfour (r), the charter being treated as one to load in the Wellington Dock, and not as one to load at the High Level in the W. Dock; and the dicta of Bramwell, L.J., which put the risk of delay in arriving at a berth under the latter form of charter on the shipowner and not on the charterer, are to be treated as overruled (b).

4. Ashcroft v. Crow Colliery Co. (c) which Bramwell, L.J., in Davies v. McVeagh (z) professed to follow, is wrong if it holds that lay-days begin before arrival at the place named for loading. It may possibly but very unsatisfactorily be explained, as by Lord Blackburn (d) and Brett, L.J. (a), as a decision on the extent of the charterer's liabilities and not as to the time when they began; but it is submitted that the most satisfactory way of dealing with it is to treat it as a decision that where the only obstacle to the ship's reaching her berth is the previous liabilities of the charterer or his agents which would require unreasonable waiting, the lay-days begin when the ship is ready to proceed there (e).

5. It is submitted that the decision of Huddleston, B., and Mathew, J., in Pyman v. Dreyfus (ƒ) is also erroneous. In that case under a charter to load at Odessa, the lay-days were treated as beginning, not when the ship reached the usual berth at Odessa to which she was ordered by the charterers, but when she had arrived “as near as she could safely get" to any usual

(r) (1872), L. R. 8 C. P. 46.

(s) (1879), cited by Brett, L.J., at 12 Ch. D. 590.

(1) (1883) 12 Q. B. D. 87.

(u) See Tharsis Co. v. Morel (1891), 2 Q. B., at pp. 650, 652.

(") (1890), 15 P. D. 98.

(x) (1876), 3 Sc. Sess. Cas., 4th Ser. 419.

(y) See Tharsis Co. v. Morel (1891), 2 Q. B., at p. 653.

(z) (1879) 4 Ex. D. 265.

(a) 12 Ch. D. 589.

(b) See Tharsis v. Morel (1891), 2 Q. B., at pp. 650, 651.

(c) (1874) L. R. 9 Q. B. 540.

(d) In Postlethwaite v. Freeland (1880), 5 App. Cas., at p. 622.

(e) Cf. Wright v. New Zealand Co. (1879), 4 Ex. D. 165; Tillett v. Cum Aron (1886), 2 Times L. R. 675; and post, Articles 132, 133, but see Tapscott v. Balfour (b), L. R. 8 C. P. 46.

(ƒ) (1889), 24 Q. B. D. 152.