period is calculated in a way prescribed by the terms of the document-namely, that without counting Sundays and holidays there are to be a certain number of lay days. This defines the rights of the charterers, and, accordingly, the period allowed to them for loading is fixed from the moment the loading commences and remains unchanged unless some extraneous and independent contract between themselves and the shipowners be made which takes away those rights. This proposition is not contravened by the decision under examination. But that decision lays down that the courts must assume from the fact that work has been

done on a day on which neither party was compelled to work that such an independent and extraneous contract of a special form must be presumed to have been made.

I can see no warrant for such a doctrine. I quite agree that neither the charterers nor the shipowners could be required to work at the loading of the vessels on any one of the excepted days, and that if the work was done it must have been done by the mutual consent of both parties. But it is evident that the working on that day might be, and probably would be, to the mutual advantage of both parties. The shipowners would get their ship away a day earlier, which might be of much more importance to them than any question of demurrage or dispatch money, and the charterers would also get forward in their work and lessen the risk of having to pay demurrage. The consent of one party to work was abundant consideration for the consent of the other to work, and, in my opinion, where two parties combine to do something which is for their common interest, the law will not in general presume, in the absence of proof, that there was any extrinsic consideration moving from or to either party.

In cases where the whole of the burden falls on the one party and the whole of the benefit goes to the other, cases may arise where the law will presume that it was done for an outside consideration, and will bring in the doctrine of quantum meruit, or some other analogous doctrine, in the absence of facts showing that the party taking upon himself the burden did so as a volunteer. Probably the same presumption might be made in a question where the advantage to one side and the burden to the other was so overwhelmingly greater than in the case of the other party that it would be incredible that the matter should not have been one in which some extrinsic consideration was intended to come in. But these must be very exceptional cases. A good example of this principle can, I think, be obtained by considering a case closely analogous to the one before us.

Suppose that a charterer has a certain number of lay days under a charter-party. Upon those lay days, in the absence of a specific provision, there would be no obligation upon the shipowner or the charterer to work more than the ordinary working hours. Let us assume

that as a matter of fact overtime was worked on one or more of those days. Could it be contended that the law would be justified in assuming that a contract was made between the parties that either should pay to the other any sum, or forfeit any advantage as consideration for working overtime? In my opinion it would be perfectly unjustifiable for the courts to enter into any speculations on the subject. If a

contract was in fact made whereby the consent of the one was purchased by something more than the consent of the other, it must be proved in the ordinary way. For my own part I cannot distinguish such a case as this from the case before us. If appears to me that there is no legal difference between working during hours when working is not compulsory and during days when working is not compulsory. In both cases we have concurrence in something which may be, and probably was, to the advantage of both parties. If that fact be before the court and nothing more, there is nothing which can justify the court in presuming the existence of a contract by which either party agreed to purchase the consent of the other at some hypothetical price which the court may think a probable one, and still less in presuming the existence of such a contract in a case where evidence of fact has been called and not only does not prove but does not even suggest the existence of such a contract. In the present instance, therefore, I can see nothing which justifies our presuming any other agreement than the agreement on both sides to work on a day when neither need have worked.

The doing so only increases the burden on either party by the amount of extra inconvenience, if any, in working at the substituted hours. It neither affects the amount of work nor the incidence of the cost of working. We are not entitled to balance nicely the probabilities as to whether this was done by either party as a favour to the other, or as promoting its own interests; but if I were to allow myself to go into the probabilities, I should think it in the highest degree unlikely that the charterers would put themselves to the extra trouble of working on a holiday (when it was probably somewhat inconvenient for them to work) on the terms that the moment when they would become liable to demurrage should thereby be advanced a day. On the other hand, there seems, in my opinion, to be no improbability that the shipowners would be glad to get their ship away a day earlier, even though they would not get demurrage for the day that would be otherwise lost to them, or would have to pay the comparatively small amount of dispatch money in respect of a day gained. This is especially true in the present case, for it must be remembered that under the provisions of clause 6, the shipowners are liable to have the loading period prolonged if bad weather sets in before it is completed, and, therefore, a day saved (even though they have to pay dispatch money) lessens the risk of bad weather intervening and postponing at their expense the day on which their ship will be free.

I am therefore of opinion that, notwithstanding the fact that work was done on days when neither party was obliged to work, the charterers remained entitled to the full period originally allowed them by the charter-party for loading, and that in the present case the lien which was insisted upon by the shipowners in respect of the two days which were yet unexpired of the period granted by the contract for unloading was wrong. fully exercised, and the respondents are entitled to have judgment for the money paid by them under protest.

I will now deal for a few moments with the case of The Katy (ubi sup.), which properly understood, so far as its decision is concerned, is, in my opinion,

in support of the proposition which I have laid down. In the case of The Katy, fourteen running days were to be allowed to the freighters for loading and unloading. The ship arrived at a port and was ready for unloading about the middle of the day. Now, it was perfectly clear that the charterers might have refused to commence unloading on that day because they were entitled to fourteen full days, and they could not be obliged to take half a day instead of one of these full days. But nobody contested that if they did take part of a calendar day-and I may say the court also found this-that must be counted as one of the running days. Negotiations went on between the parties, and the charterers agreed to commence unloading in the middle of the daythat is to say, they commenced unloading on that calendar day. They then set up that it must be taken that they agreed to unload on that calendar day on the terms that it should not count as a running day. Who had to prove the extraneous contract? Not the shipowners. The shipowners said: "You began your unloading on such a day; count from that day, and your time was up at such and such a date." It was the charterers who had to set up the extraneous contract,, saying, "True, we did work on that day, but it must be taken to have been on the terms that that day was not to reckon as a running day."

The court simply found that there was no such contract. In the absence of a contract, the charterers were in the wrong, and that is what the court found. There was evidence of what had occurred, and I admit that Lord Esher reviewed that evidence and came to the conclusion that evidence had in fact been given of the existence of an agree ment that that day should be counted as one of the running days. But the important passage in his judgment is, in my view, that where he says: "Therefore, on the Saturday, if they chose to take it as a lay day, they must take the whole of it, and the fact that they did not take delivery until one o'clock does not prevent them from having to treat the Saturday as a lay day."

I may say that the principle that the court is not to create contracts which have not in fact been made, on the ground that parties have mutually agreed to do something, seems to me to be supported by that case, and not to be negatived by it.

I will now pass to the second point, which is also one of general importance. The period granted by the contract to the charterers for loading was, as I have said, seven weather work. ing days (Sundays and holidays excepted). Its minimum length was therefore eight days, though it might be longer. By expedition in working, the loading was completed two days before the period had expired. The charterers claim 201. for each of these days in accordance with the terms of the charter-party, but the shipowners reply that one of these days was, say, a holiday, and that the charterers are not entitled to be paid for that day. It is, of course, not denied that the shipowners had the benefit of the ship being free two days earlier than provided by the charter; but it is contended that by the decision of the Divisional Court in the case of The Glendevon (ubi sup.) it was decided that the charterer could not claim in respect of excepted days.

I am of opinion that this decision can only be very doubtfully distinguished from the case before us, and that substantially it bears out

the contention of the respondents. The first question, therefore, is whether that decision can be supported. In my opinion it cannot; both on the ground that it was wrong in law and also on the ground that the opposite principle had been laid down by the Court of Appeal in the case of Laing v. Hollway (ubi sup.), which is binding upon us and was binding on the Divisional Court in The Glendevon (ubi sup.). I will first consider the interpretation to be put upon the provisions in question apart from the decision in Laing v. Hollway (ubi sup.), and for this purpose I will just consider the more general case (which is less in favour of the charterers) where the number of lay days is specified without any reference to the weather, and I will subsequently consider whether the fact that the lay days are described as "weather working days" in the present case affects the conclusion to which we ought to come. I shall therefore assume that the language is seven working days (Sundays and holidays excepted) to be allowed by owners to charterers for loading, and for each day saved in loading the charterers shall be paid or allowed by the owners the sum of 201." As in the point with which I have already dealt, we have here a definite period allowed to the charterers for loading-namely, such a period as will contain seven days which are neither Sundays nor holidays. The charterers are entitled to spread their loading over the whole of that period, but if they perform the loading more quickly, so that the ship is free on an earlier day, they are entitled to dispatch money. One would naturally expect that this dispatch money would be proportionate to the advantage derived by the shipowners from the extra speed in loading, just as in demurrage the payment is proportionate to the loss of time caused by the dilatoriness in loading, and the language appears to me to be clearly chosen to express this intention.

If

In construing it we must consider between whom the contract is made, or, if I might use the phrase, who are speaking in the contract. In this case they are the charterers and the shipowners. The shipowners are willing to pay 201. for each clear day saved in loading. That cannot, in my opinion, refer to the rapidity with which the goods are at any moment put on board, but it must refer to the shortening of the total period occupied by the loading, because it is only by the shortening of that period that the shipowners are benefited. these words had occurred in a contract between charterers, or shipowners, and stevedores paid by the day, I can understand that the court might have put on the words the meaning " each day by which the time occupied in actually putting the meat on board the vessel is shortened"; but then the stevedores would be entitled to their bonus whether they had rendered it unnecessary to work on the first day or the second day or any other of the working days allowed. Any day saved in loading in that sense would have equally relieved their employers from the necessity of paying a day's wages, and might fairly be called a day saved. But such an interpretation would be absurd in a contract between a shipowner and a charterer where the whole advantage to the shipowner is measured by the extent to which the total period of loading is shortened.

I am of opinion, therefore, that this is the meaning of the phrase "each clear day saved in loading," and it makes no matter whether that day is a day on which the parties or either of them could have been compelled physically to put meat on board the vessel or not. If, for instance, the period allowed for loading expired on Thursday evening (Wednesday being a holiday) and by diligence in loading the charterers filled the vessel or completed their work by Tuesday evening, the number of days saved in the total period of loading would be two, and the shipowner, in return for getting his ship free two days earlier, must pay dispatch money in respect of each of them.

It further appears to me that this is exactly what was laid down by the Court of Appeal, consisting of Baggallay, Bramwell, and Brett, L.JJ. in the case of Laing v. Hollway (ubi sup.). Bramwell, L.J., in delivering the judgment of the court, said: "It is admitted on both sides and is clear that time saved' means if the ship is ready earlier than she would be if the charterers worked up to their maximum obligation only. All the time by which she is the sooner ready is time saved within the meaning of the charter-party." And later on he points out that dispatch money and demurrage ought to run exactly in the same way.

I am of opinion, therefore, that as a general rule days saved out of the total period allowed for loading must be reckoned in favour of the charterers, whether those days were within the period by virtue of their being working days or by virtue of their being Sundays or holidays.

If this be so, it remains to consider whether the fact that in the present contract the allowance is more favourable to the charterers, in that it is "seven weather working days," prevents the rule applying. This is used in a very ingenious way by counsel for the respondents. He suggested that the extra two days might have brought the ship into a period of bad weather when the days would not count, and the consequence would be that the number of days saved would be far greater than the two in question. This is treated by counsel for the respondents as a reductio ad absurdum. Although I agree, for reasons which I shall presently give, that the charterers could not claim in respect of such a possible future prolongation of the term, I cannot say that I feel that there would be anything absurd if they were held to be so entitled, because the shipowners would, even in that extreme case, only pay for exactly the time that was saved to them by the diligence of the charterers. Ex concessis, had the charterers taken their full period, they would have been entitled to keep the ship until the end of the spell of bad weather, and the owners would have lost its use for the whole of that time. But although I am of opinion that the shipowners would in fact benefit to this extent, I do not think that it is necessary to interpret the phrase "days saved" as including such possible future prolongations of the period allowed for loading, because I think that the services and the payment for them must be determined at the moment when the ship is freed by the charterers and put at the disposal of the shipowners, and that the payment must be determined rebus sic stantibus for the services rendered. Accordingly the period must be taken as it stood at the moment when the vessel was given over to

the shipowners at the termination of the loading, and the charterers must be paid for the unexpired portion. The chances of the future no longer affect them, because they agree that the period of loading shall then terminate with all the rights that it brings with it. Their right to pay. ment, therefore, is measured by the number of days that the period taken falls short of what at the time they can show they were entitled to. On this point, therefore, I am of opinion that the appeal should be allowed.

I now come to the much more complicated and difficult question which turns on the special nature of the contract. It is a contract of the very greatest importance probably to both parties, and certainly to one-namely, to the charterers; and in interpreting it, inasmuch as from its complicated nature and from the fact that it is to last for a year and then for, I think, as many years afterwards as the shipowners are in a condition to perform their share of it, the provisions that have to be made for future contingencies are numerous and relate to divers subjects. But the fact that it is thus complicated makes it, in my opinion, more important that we should ascertain in the first instance what substantially is its nature, and that, in dealing with all the special provisions of the contract, we should keep that substantial nature clear in our minds, in order that we may see the relation of the special provisions to what I may call the substance of the contract.

Now, the substance of the contract was of this nature. There was out in South America, on the River Plate, a packing factory which prepared carcases for shipping to England by means of ships fitted with refrigerating machinery which could keep the meat either chilled or frozen throughout the whole of the transit; and this agreement is an agreement between the owners of the factory and the owners of a line of steamers trading between the River Plate and England whereby the charterers undertook to ship the whole of their output by the ships of the shipowners, and not only to do that, but to fill the ships which were sent out to receive the output. It is perfectly obvious that an essential to that contract is the definition of what ships could be sent out to the charterers for them to fill. They must be sent out often enough, because the whole of the charterers' output had to be sent by them. They must not be sent too often, because the charterers bound themselves to fill the ships that were sent out; and therefore one is not surprised to find that in the forefront of the contract, both in the preamble and in the earliest of the provisions, there is a strict description of the character of the service of ships which the shipowners are to furnish. It is defined as being a two-weekly service to Liverpool; but that is not sufficiently accurate to protect the charterers, for you might as well have a two-weekly service in which the service of one fortnight, we will say, started on the Tuesday, and the next fortnight started on a Friday, so that the space between the ships would be unequal a thing most disadvantageous to a factory which was presumably one having a regular output, that regular output being of a character requiring special forms of storage, and therefore not capable of being accumulated. So that the unequal periods would be very disadvantageous to it, and we find, therefore, as we might

have expected between men of business, that the character of the service is not only to be a twoweekly service, but the sailings are to be at intervals of fourteen days; two-weekly, in order that it might take the whole of the charterers' output, and at intervals of fourteen days in order that the charterers might always be ready to perform their other obligation, which was to fill up the space on board the ship. That is what, in my opinion, is the essence of this contract.

But of course every business man knows that obligations like these cannot be carried out to the moment, for there are far too many chances in life to render that possible. The consequence is that a large portion of the rest of the contract consists in what I may call apportioning the risks; that is to say, making irregularity arising from certain causes risks that are to be borne by the charterers, and irregularity that comes from other causes risks that are to be borne by the shipowners.

Now, to my mind, provisions of that kind do not in the least affect the fundamental stipulation that there is to be a regular service at intervals of fourteen days, because they mean that the deviations from that regularity which will no doubt occur are to fall on one party or the other; and if the shipowners are late, only because of an excepted cause, they are from the point of view of the contract in time. This introduces no laxity into the contract nor does it weaken the claim of the substantial provisions to be held to be conditions precedent because the contract contemplates they cannot be literally carried out, and apportions the consequence of that failure to carry them out between the different parties.

We must therefore examine the contract from this point of view. It has some conditions which are fundamental. It will undoubtedly deal with cases which will relate to the imperfect performance of these fundamental conditions, and of course it will have a large number of clauses which will deal with details of the performance as, for instance, how loading is to take place- and other clauses which will deal with who is to bear the risk of damage to the goods by perils of the sea or other matters which may reasonably be anticipated. Now, if one keeps that in one's mind as one reads the contract, one finds that all the parts of the contract fall into their natural positions. It begins in this way: "Whereas the owners have services of cargo and live stock steamers which they are running, or propose to run, as a twoweekly line from the River Plate to the port of Liverpool and as a monthly line from the River Plate to the port of London, and the charterers have agreed to ship their output to the United Kingdom of frozen meat and offal by the said lines, and the owners have agreed to carry the same on the conditions hereinafter contained." That preamble shows exactly what was the subject-matter to which this contract was directed. The first clause is: "The owners engage as from the date when their respective vessels arrive in the River Plate and are ready to load outwards to place the vessels of the line named in the schedule hereto, and from time to time sailing in the lines herein specified "-that refers to the twoweekly lines so far as Liverpool is concerned"which the charterers admit to have," &c. And

the charterers agree to ship in each vessel so much frozen meat and offal as will fill such insulated chambers." Therefore by that clause the charterers agree to fill the insulated chambers. Then the remainder of the clause deals with matters exactly of a similar character with regard to chilled meat instead of frozen meat. There is the obligation so far as filling all these ships is concerned. The obligation on the charterers to send the whole of their output is contained in clause 32, which says: "The charterers hereby covenant and agree that during the continuance of this contract they, the charterers, will not directly or indirectly ship or cause to be shipped, or knowingly permit or suffer to be shipped, or directly or indirectly sell for shipment to the United Kingdom otherwise than by the owners' steamers under this contract."

The effect is that these producers are tied hand and foot by being obliged both to ship the whole of their output and to fill the whole of the ships of this line tendered to them.

Now we come to clause 2, which provides: "The installation and machinery are, subject as hereinafter provided, to be of sufficient power to cool the frozen meat chambers and keep them at a temperature of 22 degrees Fahrenheit." It is not contested that that is a condition precedent. The charterers are not bound to ship their output if they do not get a ship of that description. It has been again and again held by the courts that where you have a description of that kind in a contract it is a condition precedent that that which is tendered to you and which you have to accept must comply with that description. There are many cases that could be referred to, but probably the case of Bowes v. Shand in the House of Lords (3 Asp. Mar. Law Cas. 461 (1877); 36 L. T. Rep. 857; 2 App. Cas. 455) in reference to a sale is the best known of them.

Then the clause goes on: "The service of the lines hereunder is, subject as hereinafter provided "-that means, subject to those exceptions where the failure of regularity is not to be borne by the shipowners, except perils, if I might call them-"to be a two-weekly one to the port of Liverpool and a monthly one to the port of London, having the sailings at intervals of fourteen and thirty days respectively, and to last for one year from the 1st Jan. 1904, and to be subject to continuance as hereinafter provided." That continuance is to be found set out in clause 23, which says: "Without prejudice to the provisions of art. 10 hereof, this contract shall continue from year to year after the 31st Dec. 1904, if and so long as the owners shall have lines of steamers running from the River Plate to Liverpool and London as aforesaid "-that means two-weekly and monthly, with intervals of fourteen and thirty days-" and the charterers shall be entitled and bound to ship in each such year to the various ports covered by this agreement by such steamers such quantity of frozen meat and offal," &c.; that is to say, their output and the whole of their output, and they are still liable under the contract to fill all the vessels. Therefore the date and time of sailings of these vessels are, looked at in their nature, absolutely fundamental to this contract, and I can see no possible reason why this court should say that the first part of clause 2 contains a description which creates a condition precedent

as to the vessels which the charterers are obliged to fill, and that the second part of clause 2, which is quite as vital and quite as important to them and is similarly a description of the line of steamers which they have to fill, should be held to be no condition precedent at all, and in fact, so far as I can gather from the argument of the respondents, to be a mere ornament to the contract, bringing no substantial liability at all.

In the argument I put it to Mr. Hamilton whether he contended that, supposing the respondents send two vessels at the same time and tendered them for loading, the charterers were required to load them; and he said that the obligation under clause 6 was absolute, and that they must load the ships independently of whether they were in time or not, and that the only ground on which they could object would be that the failure to keep the dates was so utter and complete as to spoil the commercial effect of the arrangement-if that did not occur, it was apparently no breach of contract on the part of the respondents not to keep up the dates of the sailings or the intervals between the ships. In my opinion that is not so.

It may give the courts very great difficulty, in working out the consequences of this contract, to hold that this is a condition precedent; but the contract is a complicated one, and the very gravest interests of both parties depend upon it; and if one is convinced that it was at the root of the contract that the times of sailing should be respected-and that, in my opinion, both as to the form of the contract and the nature of the stipulation is the case-we must face the difficulty and must not evade it by depriving the charterers of their rights under this contract. I am therefore of opinion that the description of the line of steamers and of their dates of sailing was a condition precedent to the charterers being required, under the clauses to which I have referred. to ship their output by these lines and fill up the ships that were tendered to them.

Now here let me make one remark about a matter which has been dwelt upon in argument, but which, in my opinion, has no bearing on the decision. It has been pointed out that there is a fortnightly sailing to Liverpool and a monthly sailing to London, so that at times the charterers will be, as it were, feeding a double line of steamers, and at times a single line of steamers. That is a difficulty which, if they had notification, they must meet, and I cannot find any objection raised on the part of the charterers based on any difficulty that may cause. They have met it, so far as we can learn from what was told us in the - argument, by the simple way of having cold storage for about two cargoes, so that if they had to load at the same time a ship for London and a ship for Liverpool they might be able to draw on their accumulations. Whether that is so or not appears to me wholly immaterial. They have undertaken to perform their contract and they must do so; and I am bound to say that in the whole of the argument in this case I cannot find that on either side it has been suggested that the charterers have raised any conten tion based on a difficulty that does not arise from a breach of contract on the part of the ship. owners; and to that I am now going to pass.

VOL. X., N. S.

Whether it be a condition precedent or a class of obligation under the contract, the owners unquestionably ought to have had a two-weekly line of steamers to the port of Liverpool, and they ought to have had sailings at fourteen days' intervals. If they kept their contract no difficulty whatever would arise. The whole of the questions that arise here depend upon what the charterers are to do when the shipowners have broken their contract by not sending their ships at two-weekly intervals or at the precise intervals of fourteen days. The whole difficulty arises from breaches of contract by the shipowners, and it is not an unsound proposition to start with, when you are dealing with the rights of persons under a contract, to consider that where one party to a contract does not perform his obligations, he has not only got to bear the loss suffered by the other party, but he must also allow to the other party the right to choose reasonably his way out of the difficulties and perplexities that arise from the breach of contract. In this part of the case there is no one thing here which could have been a subject of complaint, if it had not been for the breaches of contract on the part of the shipowners; and I confess that I think that we have got to look on this from the point of view of the charterers, and to consider what they were bound to do under the contract in the face of these breaches. So far as I can see from the dates that are given us, the shipowners have made little or no attempt to keep their contract. We have a variety of dates of sailings given us in the special case for the first six months of this contract, and, looking at the dates of sailings for the Liverpool boats, I find that instead of intervals of fourteen days, which was so important for the output of any manu. facture of that kind, it begins like this: 6, 17, 1, 2, 13, 24, 25, 6, 28, 4, 30. If those had arisen from excepted perils, from risks which fall, by the provisions of the contract, on the charterers, nothing could be said. But from all I have heard it is not pretended that these things arise from risks of that kind; nor have the charterers in their argument in any way suggested that they are not bound to bear the risks which they have taken upon themselves. The argument is whether or not capriciously the shipowners can send their ships at intervals of from seven days in one case and forty-two days in another, and still require the charterers to ship their whole output by these steamers, and to fill all the steamers just as they are submitted to them. Now, in my opinion the shipowners are not so entitled, because it is a condition precedent that this order of sailing should be preserved. It is a well-known law, exemplified by such a case as Croockewit v. Fletcher (1 H. & N. 893), that provisions in a charter-party fixing the dates at which there are to be sailings are a condition precedent. In that case the words were "to sail from thence for Liverpool on or before the 15th March next." It was held that if the ship was not there before the 15th March, then the charter-party was at an end, and the charterer was not obliged to take the ship. In my opinion the same conditions come in here, where these dates are not observed. But this contract is of so complicated a nature and the alliance between the two parties is so close and intricate under it that that does not settle the question entirely, because there are provisions whereby the charterers undertook to 4 B