The judgment of the Court will, therefore, be for the plaintiffs for the full amount. Judgment for the plaintiffs.

ENGLISH NOTES.

The implied liability of the merchant under such a contract of affreightment as that described in the rule has been held to extend to delay occasioned by the crowded state of the docks at the port of discharge, Randall v. Lynch (1809), 2 Camp. 352, 11 R. R. 727; or by a strike of workmen at the port of discharge, even where by the custom of that port the cargo is discharged by the joint act of the shipowner and the consignee, and the dispute affects the labourers employed by both, Budgett & Co. v. Binnington (C. A. 1890), 1891, 1 Q. B. 35, 60 L. J. Q. B. 1, 63 L. T. 742, 39 W. R. 131; or by an infectious disease at the port of loading preventing intercourse with the shore, Barker v. Hodgson (1815), 3 M. & S. 267, 15 R. R. 485.

The merchant has also been held liable for delay occasioned by the refusal of custom house officers to allow part of the cargo to be taken out of the ship, Bessey v. Evans (1815), 4 Camp. 131; and in another case by the necessity of obtaining a special order from government for the landing of the goods, Hill v. Idle (1816), 4 Camp. 327, 1 Starkie N. P. 111, 16 R. R. 797; but not by a hostile occupation of the destined port, though it may lead to the entire abandonment of the voyage, and so render the employment of the ship unprofitable, Liddard v. Lopes (1809), 10 East, 526, 10 R. R. 368.

The merchant is answerable for delay, though he may have received no notice of the ship's arrival; for it is his duty to watch her arrival, Harman v. Clarke (1815), 4 Camp. 159, 16 R. R. 768; Harman v. Mant (1815), 4 Camp. 161, 16 R. R. 770; and though he has been prevented from taking delivery owing to the non-arrival of the bill of lading, the master being entitled to insist upon the production of that document before parting with the goods, Jesson v. Solby (1811), 4 Taunt. 52, 13 R. R. 557.

The last clause of the rule as to the merchants' liability for the conduct of the owners of other goods, is borne out by the ruling case (No. 1) Leer v. Yates, p. 219, ante. The soundness of that case was questioned by Lord TENTERDEN, who expressed an opinion that a consignee who had no opportunity of taking his goods within the time stipulated could not be said to detain the vessel if he removed them within a reasonable time after he was able to get at them. Any doubt as to its validity as an English authority has, however, since been dispelled, the case having been expressly approved in Straker v. Kidd (1878), 3 Q. B. D. 223, 47 L J. Q. B. 365, 26 W. R. 511, and by the Court of

Nos. 5, 6. Leer v. Yates; Thiis v. Byers. — Notes.

Appeal in Porteus v. Watney (1878), No. 10, p. 269, post, 3 Q. B. D. 534, 47 L. J. Q. B. 643, 39 L. T. 195, 27 W. R. 30.

In the former of these cases the cargo was shipped under several bills of lading, each of which stipulated for "three working days to discharge the whole cargo, or £30 sterling per day demurrage. The defendants, the indorsees of one of the bills of lading, were prevented from clearing the ship, within the agreed, time, of their portion of the cargo which lay at the bottom of the hold, by reason of the delay of the consignees of the upper portions; yet it was held, that they were liable for demurrage. In Porteus v. Watney, supra, the stipulation as to lay-days and demurrage was contained in the charter-party; and the bills of lading, one of which had been indorsed to the defendants, contained the words "paying freight for the same goods and all other conditions as per charter-party." The facts were in other respects similar to those in Straker v. Kidd, as also was the judgment of the Court. It is to be observed however that THESIGER, L. J., though he refrains from expressing a positive opinion on the point, says: "I do not think it altogether clear that when a bill of lading stipulates that a consignee under it is to have his goods on payment of freight and on the performance of all other conditions of the charter-party, and in point of fact all demurrage due under the charter-party has been paid to the shipowner by some other consignee under a similar bill of lading, so that the condition in the charterparty as to demurrage has been performed, although not by the par ticular consignee; that fact would not constitute in equity, if not at law a defence, to an action for demurrage brought against the first consignee."

In Postlethwaite v. Freeland (1880), 5 App. Cas. 599, 49 L. J. Ex. 630, 42 L. T. 845, 28 W. R. 833, the rule at present under consideration is thus concisely stated by Lord SELBORNE in the House of Lords:

"If by the terms of the charter-party, he (the charterer) has agreed to discharge it (the cargo) within a fixed period of time, that is an absolute and unconditional engagement for the non-performance of which he is answerable, whatever may be the nature of the impediments which prevent him from performing it, and which cause the ship to be detained in his service beyond the time stipulated."

The merchant, however, will be excused if the delay is occasioned by the fault of the shipowner. Hansen v. Donaldson (1874), Court of Session, Scotland, 4th Series, Vol. 1, 1066; Benson v. Blunt, (1841), 1 Q. B. 870, 1 Gale & Dav. 449; Bradley v. Goddard (1863), 3 F. & F. 638; Harris v. Best-Ryley (1893), 68 L. T. 76. But where the shipowner, in complying with a request of the charterer that he would not show himself lest if he did so the price of the goods carried should

Nos. 5, 6.-Leer v. Yates; Thiis v. Byers. - Notes.

fall in the market, failed to procure at the custom house the papers necessary for clearing the ship, the charterer was held liable for demurrage. Furnell v. Thomas (1828), 5 Bing. 188. And where the defendant chartered the plaintiff's ship to bring a cargo of hay from France to London the cargo to be brought and taken from the ship alongside and, the landing of such a cargo being forbidden by an Order in Council of which both parties were ignorant, the cargo was after some delay taken from alongside the ship and exported; it was held, that the defendant was liable for the delay, the contract having been carried out without any violation of the law. Waugh v. Morris (1873), L. R., 8 Q. B. 202, 42 L. J. Q. B. 57, 28 L. T. 265, 21 W. R. 438.

On the other hand where the contract provides that the merchant is to have the usual and customary time to unload the vessel at her port of discharge, he may, without being responsible for the delay, have her unloaded in her turn into a bonded warehouse where that is the usual practice of the port in the case of similar cargoes. Rodgers v. Forresters (1810), 2 Camp. 483, 11 R. R. 773. The same law was laid down with respect to a consignee of goods sent in a general ship without any stipu lation in the bill of lading as to the time of unloading. Burmester v. Hodgson, (1810), 2 Camp. 488, 11 R. R. 776.

AMERICAN NOTES.

Leer v. Yates is largely cited in 1 Parsons on Shipping, p. 314, where it is said: "A delay by capture, or embargo, or by any compulsion, gives no ground for a claim for demurrage, according to some authorities, because for this there must be a voluntary delay; such at least appears to have been once regarded as the general principle. Douglas v. Moody, 9 Massachusetts, 548, 555. But the decisions on this question cannot be reconciled. On the whole, we prefer those which hold that the consignees shall, generally at least, pay demurrage, although no blame be imputable to them, provided the owner be not in fault."

In Duff v. Lawrence, 3 Johnson's Cases (New York), 162, it was held that a delay for quarantine does not found a claim for demurrage, but where the prohibition of entry was permanent, the charterer should pay for the delay, especially as by the charter-party he might have gone to another port although on payment of a higher freight.

Leer v. Yales and Barker v. Hodgson, 3 M. & S. 267, are cited in Benson v. Atwood, 13 Maryland, 20; 71 Am. Dec. 611, where demurrage was allowed because no one was present at the port of destination from whom the captain could take orders, and he was ordered away by the government and sailed for another port.

In Wordin v. Bemis, 32 Connecticut, 268, a claim of demurrage was disallowed where the delay was caused by an extraordinary and unforeseen accu

mulation of vessels at the dock, provision having been made for seven, which was sufficient for ordinary demands.

In Brooks v. Minturn, 1 California, 481, a vessel being seized by revenue officers, it was held that no demurrage was recoverable if the seizure was illegal, or if legal but occasioned by fault of the ship-owner or his agent, but it was not determined what would be the law if the seizure was by fault of the consignee.

A master of a vessel prevented by revolution from landing safely at the port of destination is guilty of want of good faith in selling the property at a foreign port at a time after he could have returned to the home port with the cargo, and conferred with the owners and shippers; but he should either dispose of the goods in good faith and to the best advantage in the nearest port he is able to reach, or return the goods to the shippers, with reasons for nondelivery. The Joseph Oteri, Jr. (U. S. Circ. Ct. App. 5th C.) 66 Fed. Rep. 581.

No. 7. DAHL v. NELSON (APPEAL FROM NELSON v.

DAHL).

(H. L. 1880.)

RULE.

A CHARTER-PARTY to certain "docks" is not satisfied by the ship arriving at the gate of the docks without entering in.

But where the charter-party was to "London Surrey Commercial Docks, or as near thereto as she may safely get and always lie afloat," and the harbour-master having refused to permit entrance to the dock on account of there being no early prospect of giving her a discharging berth the vessel was moored at a buoy, being the nearest place where she could lie in safety afloat, and there discharged the cargo by lighters: Held, that the shipowner, on so mooring his ship and being ready there to discharge, fulfilled his part of the contract; and that the responsi bility for any subsequent delay in discharging lay on the charterer.

6 App. Cas. 38-63 (s. c. 50 L. J. Ch. 411; 44 L. T. 381; 29 W. R. 543.)

Demurrage. Charter-party. - Discharging Cargo. - Docks.

A charter-party for a ship to sail to "London Surrey Commercial [38] Docks" is not satisfied by the ship arriving at the gate of the docks but not entering into the docks.

There is no established custom in the port of London by which the charterer of a timber-loaded ship is bound to secure for the vessel, on its arrival in the river, and in close contiguity to the docks named, the authority to enter into the docks.

The charter-party was to "London Surrey Commercial Docks, or as near thereto as she may safely get, and lie always afloat." As the docks were full the ship could not be given a discharging berth, and the dock mauager therefore refused it entrance into the docks. Both parties having named these docks in the charter-party, this refusal of the dock authorities was held not to be the fault of either party. The cause of the delay as to being admitted into the docks was immaterial; the length of the delay was material.

The charterer would not name any other docks to which the ship might be taken. The ship's master therefore took it to the Deptford Buoys (the nearest place to the Surrey Commercial Docks where it could lie in safety afloat) and there discharged the cargo by lighters, carrying the timber into the Surrey Commercial Docks, where it was afterwards sorted and put in order on the wharf:

Held, that under the circumstances existing in this case, the delay in discharging the cargo was to be attributed to the charterer, who therefore became liable to demurrage, and to the charges for unloading.

...

The contract in the charter-party as to demurrage was this: The cargo was to be supplied as fast as it could be taken on board, "and to be received at port of discharge as fast as steamer can deliver as above, . . . and ten days demurrage over and above the said laying days" [there were no laying days mentioned in the charter-party] "at £30 per day payable day by day, it being agreed that for the payment of all freight, dead freight, and demurrage, the owner shall have absolute charge and lien on the said cargo. . . .” "The cargo to be brought to and taken from alongside the ship at merchants' risk and expense."

The ship did not fulfil the engagement in the charter-party to proceed to the Surrey Commercial Docks by merely going to the gates of the docks, but when it had fulfilled the alternative to go as near thereto as it could safely get, the charterer was bound to take the cargo from alongside at his risk and expense. The shipowner was not bound to wait for an * unreasonable period, [* 39] until the dock authorities should be able to assign the ship a discharging berth in the docks.

When that difficulty arose about the ship being admitted into the Surrey Commercial Docks, and the charterer would not name any other docks or place