BUNKER COAL.

See Carriage of Goods, Nos. 9, 10-Light dues.

CAPTURE.

See Marine Insurance, Nos. 3, 11-Seamen, Nos. 5, 8.

CARDIFF DRAIN.

See Collision, No. 13.

CARRIAGE OF GOODS.

1. Bill of lading - Deriation · - Transhipment Excepted perils—“Liner."-Goods were shipped under a bill of lading which contained the following provisions: "Shipped apparently in good order on board the steamship and bound, subject to the liberties hereafter mentioned, for London with liberty

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and thence

to proceed to or call in any order for any purpose at any port or ports whatsoever, although in a contrary direction to or out of or beyond the ordinary route, all of which ports shall be deemed to be included within the intended voyage and to deviate for any purpose, with liberty either before shipment, or at any period of the voyage, and so often as may be deemed expedient, at any port or place, to ship the whole or any part by any other steamship (whether belonging to the company or not) or tranship or land and store reship on the said steamship or any other steamship (whether belonging to the company or not) eighty-eight cases asafoetida and to be carried and delivered (subject to the exceptions, limitations, and conditions hereinafter mentioned) in like good order and condition at the port of London on deck at shipper's risk." The excepted perils included damage by perils of the seas, rain, spray. Clause 16 of the conditions provided: Should the ship for any cause whatever not call at the port for which the goods have been shipped, the owners of the ship are at liberty to forward the goods from any port at which they may call to their port of destination by any steamer or steamers, either of their own or any other line. Should the goods for any rause be forwarded by steamer of any other line, shippers and consignees are to be bound by all clauses and conditions of the usual bill of lading of such steamer." The goods were delivered damaged in London. Held that the fact that the voyage to London had been abandoned and the goods carried to Cardiff and there transhipped into a small steamer which carried them to London did not defeat the object of the bill of lading contract, and the shipowners were entitled to rely upon the exceptions in the bill of lading. The words "other line" in clause 16 of the bill of lading meant merely another steamer, and not a "liner " as distinguished from a small trading steamer. (Bigham, J.) Hadji Ali Akbar and Sons, Limited. v. Anglo-Arabian and Persian Steamship Company Limited

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2. Bill of lading-Exceptions-Inconsistent clauses.A bill of lading contained two clauses relating to

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exceptions. The first provided: "Neither the ship nor her owners shall be accountable for any loss or damage from any cause whatsoever, whether existing at the commencement of the voyage, or at the time of the shipment of the goods or not." The second clause, which was printed in smaller type, excepted loss or damage resulting "from any accidents to, or defects, latent or otherwise, in hull

or otherwise, whether or not existing at the time of the goods being loaded or at the commencement of the voyage if reasonable means have been taken to provide against such defects and unseaworthiness." A cargo of frozen meat was shipped under the bill of lading, and in the course of the voyage it was damaged by carbolic acid which had been used to disinfect the vessel after carrying a cargo of horses. If reasonable care had been taken to cleanse the ship from the taint of carbolic acid before the meat was shipped the injury would not have occurred. Held (affirming the judgment of the court below), that the second clause must be read as qualifying the general exception contained in the first clause, and that the owner was not exempted from liability for damage caused by the condition of the vessel. (H. of L.) Elderslie Steamship Company v. Borthwick.

3. Bill of lading-" Good order and condition "Duty of master.-A master of a ship is expected to notice the apparent condition, though not the quality, of goods shipped on his vessel. The addition of the words quality and measure unknown" in a bill of lading do not in effect strike out the words good order and condition." Condition" refers to external and apparent condition; "quality to that which is not usually apparent, at any rate, to an unskilled person. (Channell, J.) Compania Naviera Vascongada v. Churchill and Sim; Compania Naviera Vascon gada v. Burton and Co.

4. Bill of lading" Good order and condition". Duty of Master.-Though a charter-party provides a form of the bill of lading to be used which contains the words "shipped in good order and condition" and " quality and measure unknown " the master is not bound to make an untrue statement in the bills of lading. (Channell, J.) Compania Naviera Vascongada v Churchill and Sim; Compania Naviera Vascongada v. Burton and Co.....

5. Bill of lading — Indorsee-Award.-Where an indorsee, acting on the faith of an untrue statement made by a master in a bill of lading, has taken delivery of damaged goods not in accordance with his contract with the shippers, a foreign solvent firm, and has obtamed an award against them in rospect of the depreciation of the goods, it is not necessary for the indorsee to sue on the award before suing the shipowner. (Channell, J.) Compania Naviera Vascongada v. Churchill and Sim; Compania Naviera Vascon. gada v. Burton and Co,....

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6. Charter-party-Clean bills of lading-Negligence clause-Liability of Charterers.-The respondents chartered a ship to the appellants by a charterparty which contained an exception from liability from accidents of navigation even when occasioned by negligence. It also provided that the master should sign clean bills of lading at any rate of freight without prejudice to the charter-party. The ship loaded a cargo in a foreign port, and the charterers' agents presented for signature to the master bills of lading which did not contain the negligence clause, but contained a clause "freight

and all other conditions as per charterparty." The master signed bills of lading in this form, and in the course of the voyage the ship was totally lost through the negligence of the master. The owners thereupon became liable to the indorsees of the bills of lading, and brought an action against the charterers for breach of duty, and on an implied contract to indemnify them. Held (affirming the judgment of the court below),

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that the charterers had committed a breach of contract in presenting for signature bills of lading which imposed a greater liability on the shipowners than that imposed by the charter-party and that they were liable to indemnify the shipowners for the loss which they had thereby incurred. (House of Lords.) Krüger and Co. v. Moel Tryvan Ship Company 310, 416, 465

7. Charter-party · Demurrage-Lay days-LienLanding of cargo.--The consignees of a cargo, laden under- a charter-party which provided that the cargo should be discharged in the manner and at the rate customary at each port,' did not take any steps before the arrival of the ship to secure an unloading berth. When the vessel arrived, all the usual places for unloading such a cargo were occupied ; but, after a delay of eight days, the discharge was commenced at a place not before used for the purpose. A usual place could not have been secured any earlier if the consignees had applied before the arrival of the ship. After the discharge had commenced, the shipowners refused to continue the discharge until the freight was paid; and, after a delay of eight days, the cargo was landed subject to a lien for freight and demurrage, under the provisions of the Merchant Shipping Act 1894. Channell, J., held that the shipowners were entitled to substan. tial damages for the earlier delay, and to demurrage at the agreed rate for the later delay. Held, (varying the judgment of Channell, J.), (1) that the shipowners were entitled only to nominal damages for the earlier delay; and (2) that they had in the circumstances of the case acted reasonably in not landing the cargo subject to lien at an earlier date than they did, and were, therefore, entitled to demurrage for all the latter delay. The Court of Appeal expressed no opinion upon the point of law decided by Channell, J., upon the construction of sects. 493 and 494 of the Merchant Shipping Act 1894 (10 Asp. Mar. Law Cas. 225; 94 L. T. Rep. 492). (Ĉt. of App.) Smailes and Son v. Hans Dessen and Co. 225, 319 8. Charter-party-Demurrage-Strikes-Lay daysDischarge of cargo.-A charter-party provided for the discharge of cargo at the average rate of 500 tons per day Sundays and holidays excepted," "strikes which prevent or delay the discharging, such time is not to count unless the steamer is already on demurrage." The lay days began on the 21st Dec.; at the end of Saturday, the 31st Dec., a strike commenced, and continued until the 15th Jan. No discharge took place on Sunday, the 1st Jan., or Monday, the 2nd Jan., but recommenced on the 3rd Jan, and finished on the 15th Jan. half the cargo was discharged by the end of the 31st Dec.-the average rate being about 250 tons a day-throwing the vessel into the strike period. Had there been no strike the lay days would have expired by the 3rd Jan., and allowing for strike by the 4th Jan. In an action for demurrage held, the dilatoriness in d. charge rendered it impossible to discharge within the lay days, even if there had been no strike. The excuse of a strike could not be relied on, except in reference to the discharge of the small balance of cargo which, assuming that the rate of discharge had been on the average of 500 tons per day, would, by reason of the strike, be slightly out of time. (Bigham, J.) Elswick Steamship Company Limited v. Montaldi...

cargo

and that

9. Charter-party-" Full and complete cargo Bunker coals.-A charter-party provided that a steamer should load a full and complete not exceeding what she can reasonably stow and carry over her tackle, apparel, provisions, and furniture," and proceed to a certain port and there lighten at receiver's expense as much of the cargo as may be found necessary to allow a steamer to enter, at all times of high water, such port." The charterers lightened cargo at a port in anticipation of difficulty in getting into the next port. The shipowners then loaded a larger amount of bunker coal than was

456

required for the chartered voyage, necessitating a second lightening outside the port of discharge. Held that the shipowners had broken their contract, and that the charterers were entitled to recover the expenses of the second lightening from the shipowners, to whom the same had been paid under protest. Decision of Kennedy, J. (10 Asp. Mar. Law Cas. 268; 95 L. T. Rep. 108) affirmed. (Ct. of App.) Darling and Son v. Raeburn and Verel...

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268, 429

It was

10. Charter-party-" Full and complete cargo Bunker coal.-A shipowner is not entitled to load to the disadvantage of the charterer more bunker coal than is reasonably necessary for the perfor-* mance of the voyage. (Ct. of App.) Darling and Son v. Raeburn and Verel 268, 429 11. Charter-party-Lay days-Sundays and holidays - Condition precedent-Dispatch money.-By an agreement for the carriage of frozen meat from the River Plate to Liverpool it was agreed that, for a period of one year, the shipowners should provide a two-weekly service of ships, sailing at intervals of fourteen days, and that the charterers should fill the insulating chambers with frozen meat. Held, by Vaughan Williams and Buckley, L.JJ. (Moulton, L.J. dissenting), that, upon the terms of the agreement, the exact observance by the shipowners of the period of a fourteen days interval between each ship was not a condition precedent to the duty of the charterers to load within the time agreed upon after a ship's readiness to load had been notified to them, and non-observance only gave rise to a claim for damages. further agreed that seven weather working days (Sundays and holidays excepted)" should be allowed for loading, and that an agreed amount of dispatch money was to be paid by the owners to the charterers "for each clear day saved in loading." The charterers did part of the loading of a ship on two holidays, but there was no evidence of any express agreement under which the loading was so carried on, nor at whose suggestion it took place. Held, by Vaughan Williams and Buckley, L.JJ. (Moulton, L.J. dissenting), that there was an implied agreement between the parties that these two holidays should be counted as "working days within the charter-party. The charterers loaded a ship in two days less than the number of lay days that were allowed by the charter-party, one of such days being a Sunday. Held, by Vaughan Williams and Buckley, L.JJ. (Moulton, L.J. dissenting), that the Sunday was not a day "saved in loading" which entitled the charterers to be paid dispatch money. Branckelow Steamship Company v. Lamport and Holt (10 Asp. Mar. Law Cas. 472 (1897); 96 L. T. Rep. 886n.; (1907) 1 K. B. 787n.) and The Glendevon (7 Asp. Mar. Law Cas. 439; 70 L. T. Rep. 416; (1893 P. 269) approved. (Ct. of App.) Nelson and Sons Limited v. Nelson Line (Liverpool) Limited; and Re Arbitration between the same.....

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12. Charter-party-" Sundays and holidays "-Lay days. A charter-party provided that a vessel should proceed" to Smyrna and there load. (8) Charterers to have the option of using one or two additional neighbouring loading ports or places in Smyrna district, paying all port charges, and time shifting ports to count as lay days. (9) Thirteen running days, Sundays and holidays excepted, are to be allowed for loading

the cargo to commence when the steamer is moored and ready, having received pratique, and so reported by the master, and the time so employed, part days to count as part days to be agreed by the master and the charterers, or their agents," and that the demurrage should be at the rate of 351. per day. The vessel arrived at Smyrna and was ordered by the authorities into the quarantine station. The vessel was ordered to proceed to a neighbouring port when the quarantine was finished. On receiving free pratique, the vessel proceeded as ordered. The charterers' agents requested loading to be done on a Sunday. Such work was done up to 2 p.m.

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From 2 p.m. till 9 a.m. on the next morning (Monday) was occupied in shifting back to Smyrna. Held, that the time occupied in shifting from Smyrna to the neighbouring port and back again counted in the lay days. In these circumstances where a request to work on a Sunday or holiday, such days being excluded from the lay days by the charter-party, was made by the charterer and consented to by the captain the inference is that the parties agreed to treat such a day as a lay day. There being no indication of the intention of the parties beyond the fact merely that by the consent of both work was done on a Sunday or holiday the inference is that they intended to treat such days worked on as lay days. Branckelow Steamship Company v. Lamport and Holt and James Nelson and Sons Limited v. Nelson Line (Liverpool) Limited (No. 3), p. 472. Notes a and b, followed. (Bray, J.) Whittall and Co. v. Rahtken's Shipping Co. Limited

13. Conversion-Passing of property-Measure of damages.-H., the defendant, was a shipowner, and L. loaded a quantity of barley on his ship and received bills of lading. The ship was unable to load the whole of the barley and L. agreed to indemnify the holder of the bills of lading. One bill of lading came into the hands of B., who handed it to M., and M. advanced 50571. 168. 4d. upon it. M. received less than the quantity of barley covered by his bill of lading, as the holders of the other bills took delivery first from the agents of H., and he called upon B. to make good the deficiency, which he did by making certain payments and delivering some barley. M. sold the barley, and rendered B. an account showing a balance remaining due on the transaction from B. of 121. 1s. 9d. Afterwards B. failed, owing M. some 1651l. Held, that, as between M. and H., the shipowner, M. had the full property in the barley covered by his bill of lading, and that H. had been guilty of a conversion, but that M. could only recover 12l. 18. 9d. as damages, and not the value of the converted barley. (Bray, J.) Montgomery v. Hutchins.

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14. Custom-Demurrage-Rate of discharge-Port of Bristol.-A bill of lading (incorporating conditions of a charter-party) provided "Time for discharging at destination shall be according to the custom of the port for steamers at port of discharge, demurrage, if incurred, to be paid by consignees at the rate of fourpence sterling per gross register ton per day." An alleged custom was set up to the effect that the consignee could not be required to take delivery at a faster rate than about 500 tons per day at the port of Bristol for River Plate grain cargoes. A vessel discharged a grain cargo, under the above bill of lading, at Avonmouth Dock, Bristol. The alleged custom had been a matter of dispute for years. The facilities of discharge as regard ships and the three docks in the port of Bristol had increased since the origin of the alleged custom. The rate of discharge, in fact, was often in excess of 500 tons per day. Held, that no such custom now existed at Bristol for grain steamers generally or for River Plate grain steamers. The charter-party must be read as custom, if any, at the port of discharge." The custom was inapplicable to the state of things at present existing, and there was no such settled and established practice in the port as to satisfy the words of the charter-party. If the custom applied to the altered circumstances, it was unreasonable. (Channell, J.), Ropner and Co. v. Stoate, Hosegood, and Co.

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15. Custom-Rate of discharge.-Where a custom relates directly to the obligation of parties under certain circumstances it must, in order to be valid and binding on parties who do not know of its existence, be reasonable. Contracting out of a custom may become so general as to destroy the custom. When a custom becomes the exception and not the rule, there is no longer a custom. (Channell, J.) Ropner and Co. v. Stoate, Hosegood, and Co...

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16. Damage to cargo-Bill of lading-Unseaworthiness-Negligence clause.-Where a bill of lading contained the words " all other conditions as per charter-party, including negligence clause," and the charter-party stated that "the steamer is in no way liable for the consequences of perils of the seas, collisions, &c., even when occas. sioned by the negligence of the master mariner or other servants of the shipowner Neither is the steamer answerable for losses occasioned by unseaworthiness or latent defect in hull, machinery, or appurtenances, whether existing or not before or after the commencement of the voyage, not resulting from want of due diligence by the owners of the steamer, or by the ship's husband or manager ." It was held in an action for damage to cargo that the bill of lading incorporated the whole of the above clause in the charter-party, and therefore the shipowner was not liable for unseaworthiness unless it resulted from want of due diligence. (Div. Ct.)

The Northumbria

17. Damage to cargo-Fire-UnseaworthinessLiability of shipowner.-Where a cargo was damaged by fire caused by the negligence of the crew in overheating a stove, and by smoke and water used to extinguish the fire: It was held that the shipowner was relieved from liability by sect. 502, sub-sect. 1, of the Merchant Shipping Act, 1894, the court finding that the stove was safe if properly used, and the shipowner was not in fault or privy to the crew's negligence. Held, further, that the damage caused by the smoke and water used to extinguish the fire was damage " by reason of fire" within the meaning of the statute. (Adm. Div.) Spillers and Bakers Limited v. W. Robertson; The Diamond

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18. Damage to cargo-Unseaworthiness-Perils of the sea-Onus of proof.-In an action for damage to cargo, if the shipowner makes out a primâ facie case of perils of the sea, the burden of proving that the shipowner is not entitled to the benefit of the exception on the ground of unseaworthiness is upon the cargo owner. (Adm. Div.) The Northumbria...

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19. Damage to goods-Unseaworthiness—Insurance. -Goods were shipped on board a vessel under an agreement which provided that the shipowner should not be liable for unseaworthiness, provided all reasonable means have been taken to provide against unseaworthiness," or "for any damage or detriment to the goods which is capable of being covered by insurance or which has been wholly or in part paid for by insurance." The goods were damaged owing to the ship being at the commencement of the voyage unfit to carry the cargo, and all reasonable means had not been taken to prevent such unfitness. The owner of the goods was partly insured, and had been paid three-fourths of his loss by the insurers. Held (affirming the judgment of Bray, J.), that the shipowner was not exempt from liability, although the damage had been in part paid for by insurance, on the ground that the loss was caused by the ship being at the commencement of the voyage unfit to carry the goods. (Ct. of App.) James Nelson and Sons v. Nelson Line (Liverpool) Limited; The Highland Chief

20. Deviation-Bill of lading-Exceptions-Negli gence of stevedores.-If a ship deviates without necessity from the voyage contemplated by a bill of lading, the shipowner has failed to perform the bill of lading contract, and such deviation deprives him of the benefit of exceptions contained in the bill of lading for his relief from liability for the negligence of stevedores in the discharging of the ship; and he will be liable for damage caused to the cargo by the negligence of his stevedores in discharging it, although such damage was in no way attributable to the deviation. (Ct. of App.) Joseph Thorley Limited v. Orchis Steamship Company Limited....

21. Discharge-Rate of London Corn Trade Association Contract.-The London Corn Trade Associa

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286

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431

tion Contract, which was incorporated in a charter-party, provided that the time for discharge of a cargo of grain should be: One running day for every 400 tons up to 2800 tons, and, for all quantities in excess, 500 tons per day; but in no case less than five days." Held (affirming the judgment of Walton, J.), that, upon the true construction of the contract, the time to be allowed for discharge of a cargo, whatever its size, was one day for every 400 tons up to 2800 tons, and one day for every 500 tons in excess of 2800 tons, and not one day for every 500 tons assuming the total cargo to exceed 2800 tons. (Ct. of App.) Turner, Brightman, and Co. v. Banna. tyne and Sons Limited.......

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22. Estoppel-" Good order and condition Indorsee-Bill of lading-Harter Act.-The words shipped in good order and condition in a bill of lading are not words of contract in the sense of a promise, but are in the nature of an affirmation of fact. Such statement is within the master's authority and binds the shipowner. Where goods are shipped in apparent damaged condition, and the bill of lading states that they are "shipped in good order and condition," though the incorrect statement cannot be sued upon directly as a breach of contract, the shipowner, who is bound by the master so signing the bills of lading, is estopped from denying the condition of the goods so stated if, on the strength of such statement, the indorsee of the bill of lading has acted to his prejudice. The cause of action is based on estoppel and not on contract. This is so whether the Harter Act is incorporated or not. (Channell, J.) Compania Naviera Vascongada v. Churchill and Sim; Compania Naviera Vascongada v. Burton and Co. .

23. Lay Days-Demurrage-Ballast.-Where, during the discharge of cargo it is necessary for the safety of ship and cargo to take in ballast, and delay is thereby caused, such delay does not relieve the charterer from his obligation to complete the discharge within the time stipulated in the charter party. (Channell, J.) Houlder v. Weir 24. Lay Days-Demurrage-Sundays and holidays. -Where a charter-party provided that cargo was to be discharged "at the average rate of not less than tons per day, Sundays and holidays excepted," and during the discharge cargo was discharged on two Sundays, it was held that the Sundays were not to count as lay days. (Channell, J.) Houlder v. Weir

25. Measure of

damages-Remoteness-Penalty Clause. The respondents had agreed by charterparty to load a cargo of goods of the appellants at a fixed time at a port in the Baltic for conveyance to Cardiff. They did not provide a ship as agreed, and the customers of the appellants, to whom they had sold the goods, bought goods against them, and recovered the price and expenses from the appellants. The charter-party contained a clause: Penalty for non-performance of this agreement, estimated amount of freight on quantity not shipped in accordance herewith." Held (reversing the judgment of the court below), that the appellants were entitled to recover from the respondents the amount which they had been compelled to pay to their customers. (H. of L.) Ström Bruks Aktie Bolag v. Hutchison

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26. Principal and agent-Negligence of agentPassing goods through Customs.-The appellants carried on business in Australia, and employed the respondents, who were a firm of shipping agents in Sydney, to receive and transmit goods arriving at the port consigned to them. The respondents made no charge for passing goods so arriving through the Customs. A cargo of goods consigned to the appellants arrived at Sydney, and the arrival of the ship was reported to the respondents early on the 8th Oct., 1901, and the goods might have been passed through the Customs on that day, in which case no duty would have been payable. The goods were not in fact passed

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