loading berth in the port. In other words, the right of the charterer to select the usual berth at which the ship was to load was conceded (see case, p. 155); but it was held that he must do so at his own expense of time, the lay-days being fixed. This appears contrary: (1) to Dahl v. Nelson (g), which decides that a ship chartered "to O., or as near as she can safely get," must wait a reasonable time to overcome any temporary obstacle; (2) to Tapscott v. Balfour (h) and Tharsis Co. v. Morel (i), in that it treats the lay-days as commencing when the ship is at the disposition of the charterer in the port, and not when it reaches the berth to which it is ordered to load. It is submitted that the decision is erroneous and should be treated as overruled by Tharsis Co. v. Morel (i).

6. The late Scotch case of Stevens v. Macleod (1891), 19 Sc. Sess. C. 38, would not, it is submitted, be followed in England. There a ship was chartered to load at P. or any usual one loading place in the river as ordered on arrival, and load a cargo after being berthed in turn. The vessel was ordered to a particular loading place, and was loaded in turn of the vessels ordered to that place, but vessels ordered to other places were loaded before her at their berths, though they had arrived after her, this being according to the custom of the river. The Court of Session held (semble wrongly and diss. Lord Young.) that the lay-days should have begun when the first turn of the ship at any loading place would have arrived. It is submitted this entirely overlooks the right of the shipper to select his loading berth, and the principle of Tapscott v. Balfour (h).

Generally it seems that the principle of construing a clause to load either in a fixed time or in a reasonable or customary time, as applicable to the whole stay in the port of loading, and not as only commencing on the ship's arrival at the particular place of loading specified in or named under the charter, is discountenanced by the decision in Tharsis Co. v. Morel (i), on the clause "with all despatch as customary," approving Tapscott v. Balfour (h), a case of fixed lay-days, and approved in Good v. Isaacs (k), on the as fast as steamer can deliver as customary."

clause "

Case 1. (1).-A ship was chartered to take coals to London, the vessel to be delivered in five working days: she entered the port of L. at Gravesend, on March 9, but was not allowed to proceed to the Pool, the usual place for the discharge of colliers, till March 20. Held, that the lay-days were to be reckoned from the time of the ship's arrival at the ordinary place of discharge, according to the usage of the port of L. for such vessels (m).

(g) (1881), 6 App. Cas. 38.

(h) (1872), L. R. 8 C. P. 46. (i) (1891), 2 Q. B. 647.

(k) (1892), 2 Q. B. 555.

() As the law as to loading and unloading on this point is identical, with the exception that no notice of readiness to unload is required, I have cited cases as to unloading in support of these propositions.

(m) Kell v. Anderson (1842), 10 M. & W. 498. The case of Ford v. Cotesworth

Case 2.-A ship was chartered "to proceed to a port in the Bristol Channel, or so near thereto as she may safely get at all times of the tide and always afloat, eight running days, Sundays excepted, to be allowed the merchants, and for loading and discharging the cargo." The steamer was ordered to Gloucester, and arrived at Sharpness, within the port of Gloucester, but seventeen miles from the usual basin for discharging grain cargoes; at S. she unloaded sufficient grain to enable her to proceed to the basin. The shipowner claimed to date his "running days" from commencing to discharge at S. A custom of the port of Gloucester was proved, that vessels too heavily laden to proceed beyond S. were lightened at S., and that the times of unloading at S, and G. counted in the lay-days but not at the time of proceeding from S. to G. Held, a reasonable custom, and not inconsistent with the charter, though, in its absence, the lay-days would have run consecutively, Sundays excepted, from commencing to discharge at S (n).

Case 3.-A ship was chartered "to proceed to the port of Newry, or so near thereto as she can always float with safety-cargo to be delivered alongside of the vessel where she can discharge always afloat within reach of her tackle," . . . lay-days to begin "from the time when the vessel is ready to discharge cargo."

The custom of Newry is: to lighten or discharge the vessel to a draught of fourteen feet at the Pool, if necessary, the merchant bearing the expense of lighterage, and accepting that part of the cargo as discharged there; to proceed then four miles to the sea-locks at the end of the canal, and there lighten, if possible and necessary, to a draught of twelve feet six inches. If the ship cannot be lightened to that draught, she finishes her discharge at the sea-locks. If she can she proceeds up the canal to the Albert Basin at Newry, and there completes her discharge. The jury found that the Pool was within both the fiscal and the commercial port of Newry. Held, that the lay-days began when the ship was ready to discharge at the Pool, and included the times of transit, to the other discharging places (o).

Case 4.-A ship was chartered to proceed to any dock at Z., as ordered by charterers, and then load coal in the usual and customary manner. She was ordered to the W. docks. Coal is usually loaded in the W. docks from tips, sometimes from lighters. By the dock regulations of Z. no coal agent is allowed to have more than three vessels in the dock at the same time. The vessel was ready to go into dock on July 3, but the charterer's agent having already three vessels in the dock she was not admitted till July 11, and could not get under the tips till July 22. Held, that the laydays commenced on July 11, and that the words "load in the usual and

(1870). L. R. 5 Q. B. 544, is not inconsistent with this. There the charter was to proceed to Lima and deliver in the usual and customary manner. The ship proceeded to Callao, the usual port of discharge for L., but was prevented from discharging for seven days by acts of the Government; and it was held that if there had been a time fixed for the discharge it would have begun on arrival at the usual place of discharge, but that, as there was no fixed time, reasonable diligence only was required, and the delay from the time of arrival was not unreasonable under the circumstances. In This v. Byers (1876), 1 Q. B. D. 244, where there was a fixed time named, the lay-days counted from the arrival at the usual place of discharge. See also Brereton v. Chapman (1831), 7 Bing. 559.

(n) Nielsen v. Wait (1885), 16 Q. B. D. 67 (C.A.), whose decision proceeded on different grounds from that of Pollock, B., in the Court below, 14 Q. B. D. 516. (0) McIntosh v. Sinclair (1877), 11 Ir. Rep. C. L. 460. See also Cuffarini v. Walker (1876), 10 Ir. Rep. C. L. 250.

customary manner referred to the manner and not the place of loading (p).

Case 5.-A ship was chartered to proceed to the Mersey, and deliver her cargo at any safe berth as ordered on arrival in the dock at Garston, ... to be discharged when berthed with all despatch as customary. On arrival at the dock a berth was ordered by the harbourmaster, as customary, but owing to the crowded state of the dock the vessel did not reach it for some time. Held, that the obligation of the charterers did not commence till the vessel was in berth (7).

Case 6.-A vessel was chartered to proceed to H., cargo to be discharged at usual fruit berth, as fast as steamer can deliver as customary and where ordered by charterers. On arrival the ship was ordered to a usual fruit berth, and moored there, but without permission of the officials controlling the quay, and was ordered away the next morning. Held, that the obligations of the charterers to unload did not commence till the ship was in a usual fruit berth as ordered by charterers, and with the assent of the harbour authorities (r).

Case 7.-A ship was chartered to discharge cargo at a (named) quay at Z. The ship arrived and found the only quay berth occupied by another ship. The shipowner offered to discharge across the other ship, if the charterer would pay the additional expense. The charterer refused. Held, that the lay-days did not begin till the ship was alongside the quay, the place named where the voyage was to end (s).

Case 8.-A ship was chartered to load coals and proceed to Z., and deliver the same at one of four named places, "as ordered by charterer ... forty-eight running hours for loading and discharge." She was ordered to discharge at W. wharf, and entered the dock for that purpose; the discharging berths at the W. wharf being full, she did not begin to unload till twenty-four hours after entering the dock. Held, that the laydays did not begin till the ship reached the W. wharf (t).

Article 40.-Readiness to load.

A ship to be ready to load must be completely ready in all her holds, so as to afford the charterer complete control of every portion of the ship available for cargo (u). She

(p) Tapscott v. Balfour (1872), L. R. 8 C. P. 46. See also Shadforth v. Cory (1863), 32 L. J. Q. B. 379. In SS. Norden v. Dempsey (1876), 1 C. P. D. 654, a custom for timber ships at Liverpool that the lay-days should begin on reaching a particular place in the dock, was proved and held binding.

(2) Tharsis Co. v. Morel (1891), 2 Q. B. 647.

(r) Good v. Isaacs (1892), 2 Q. B. 557.

(s) Strahan v. Gabriel (1879), per Brett, L.J., 12 Ch. D. 590,

(t) Murphy v. Coffin (1883), 12 Q. B. D. 87.

(u) Groves, Maclean & Co. v. Volkart (1884), 1 C. & E. 309; per Brett, L.J., at 12 Ch. D. 583; Oliver v. Fielden (1849), 4 Ex. 135; Balley v. D'Arroyare (1838), 7 A. & E. 919. In practice the ship is considered "ready to load" though stiffening ballast, or cargo used for stiffening the ship, has yet to be put on board her. In Hick v. Tweedy (1890), 63 L. T. 765: under a clause "Charterers have option of cancelling if ship is not ready to receive cargo by December 12," it was held sufficient that the ship herself should be ready to receive cargo though she

must also in the absence of special stipulation have obtained all papers and permits necessary for loading.

Case.-A ship was chartered with a power to the charterer to cancel the charter if the ship were not ready to load on or before May 31. On that day she had only discharged two of her holds, and was not completely discharged till the middle of the next day. Held, the charterers were entitled to cancel (u).

Article 41.-Notice to Charterers of readiness to load.

The shipowner must give notice to the charterers of the ship's readiness to load her cargo at the place agreed on in the charter (x).

Case 1.-A ship was chartered to proceed direct to the S. dock, and there load in the usual and customary manner. In an action by shipowner against charterer for not loading, the latter pleaded that, by reason of want of notice of the ship's arrival at the S. dock and her readiness to load, the charterers were unable to load her. Held, a good defence, if proved (y).

A., and there load; she
Her arrival was entered

Case 2.-A ship was chartered to proceed to arrived at A. with a cargo on owner's account. at the Custom House, but no notice was given to the charterer of her readiness to load homeward cargo. Held, the charterer was not liable for failing to provide a cargo (z).

Article 42.-Duty of Charterers to furnish Cargo.

In the absence of express stipulations qualifying it (a), the duty of the charterer to furnish a cargo according to the charter is absolute. The charterer therefore will not be

was not in a loading berth." But for the calculation of lay days, it seems that there is no difference between "ready to load," and "ready in berth to load," and it has been so held in an unreported case.

66

(x) Stanton v. Austin (1872), 7 L. R. C. P. 651; Fairbridge v. Pace (1844), 1 C. & K. 317. In Gordon v. Powis (1892), 8 T. L. R. 397, under the clause: Captains or owners to telegraph advising probable arrival, and at least eight clear days' notice shall be given previous to requiring cargo," it was held that a telegram advising ship's departure from last port did not satisfy notice of readiness for cargo required.

(y) Stanton v. Austin, vide supra.

(z) Fairbridge v. Pace, vide supra. What amount of notice will suffice is doubtful. If the charterers are proved to be otherwise aware of the readiness to load, I do not think express notice would be required. No notice is required of readiness to discharge. [Vide post, Art. 124.]

(a) See note, p. 99.

H

relieved from his express contract to load in a fixed time, or from his implied contract to load in a reasonable time, by anything preventing him from bringing a full and complete cargo to the place of loading (b).

"The usual despatch in loading" means the usual despatch of a person who has at the place of loading a cargo ready for loading (c). The exceptions in a charter do not usually apply to protect the charterer who has failed to load, till the joint operation of loading is ready to begin, ship and cargo being ready at the place of loading (d). Thus, in the absence of express exceptions, the charterer will not be excused from loading by :-(I.) causes preventing a cargo being obtained, as strikes (e), bankruptcy of merchants supplying the cargo (e), or non-existence of such cargo (ƒ), or:(II.) causes preventing a cargo when obtained from being transmitted to the port of loading, as ice (g), bad weather (h), railway delays (i), or Government orders (k).

The charterer may be released from such a contract by:

I. Express exceptions, the perils excepted being proved not merely to exist, but also to directly prevent the loading of the ship (7).

(b) Lord Selborne in Coverd le v. Grant (1884), 9 App. C. at pp. 475-6; Lord Blackburn in Postlethwaite v. Freeland (1880), 5 App. C. at p. 619. As this duty devolves on the charterer alone, he does not come within the principle of Ford v. Cotesworth, L. R. 4 Q. B. at pp. 133, 134; 5 Q. B. 544 (1870). Thus, in Kirk v. Gibbs (1857), 1 H. & N. 810, where a charterer had contracted to load a full cargo, and to procure the necessary Government pass for loading: Held, no defence that the Government would only grant a pass on condition a full cargo was not loaded. So if the duty is on the shipowner alone, as in Hills v. Sughrue (1846), 15 M. & W. 253. For a similar rule with regard to discharging, see Kruuse v. Drynan (1891), 18 Sc. Sess. C. 1110; Granite S.S. Co. v. Ireland (1891), 19 Sc. Sess. C. 124.

(c) Kearon v. Pearson (1861), 7 H. & N. 386.

(d) Coverdale v. Grant (1884), 9 App. C. 470; Kay v. Field (1883), 10 Q. B. D. 241.

(e) Per Lord Selborne, 9 App. C. 476; Stephens v. Harris, vide sub.

(f) Hills v. Sughrue (1846), 15 M. & W. 253.

(1) Coverdale v. Grant, vide supra; Kay v. Field, vide supra; Kearon v. Peurson, vide supra.

(h) Fenwick v. Schmalz (1868), L. R. 3 C. P. 313.

(i) Alams v. Royal Mail Steam Co. (1858), 5 C. B., N.S. 492; Elliot v. Lord (1883), 52 L. J. P. C. 23.

(k) Semble from Ford v. Cotesworth (1869), L. R. 4 Q. B. 127: and see Case 6, sub. (Per Lord Blackburn (1880), Postlethwaite v. Freeland, 5 App. C. at p. 619: The Village Belle (1874), 30 L. T. 232. Thus the perils must prevent the loading of cargo by any ship; e.g. the order of an invading army that no grain shall be exported: Bruce v. Nicolopoulo (1855), 11 Ex. 129. Blight v. Page (1801), 3 B. & P.