Aberdeen Glen Line SS Company v Macken, The SS Gairloch

Fitz Gibbon, L.J.:—

This action was brought for demurrage of the plaintiffs' ss. “Gairloch,” in the discharge of a cargo of wheat consigned to the defendant from Buenos Ayres to Dublin, where the vessel arrived on Saturday, April 11, 1896. The discharge was completed on Tuesday, April 21. The claim originally made was for two days demurrage for Monday and Tuesday, April 20 and 21; but by amendment a further claim for a third day was made. The plaintiffs have throughout contended that the vessel ought to have been discharged at latest on Saturday, April 18. The amendment was intended as a claim for Sunday, April 19, as a demurrage day, which it would be if the vessel ought to have been cleared on Saturday night. The rate of demurrage is fixed by the charter-party at 4d. per gross registered ton per day, and the vessel being chartered as of 2173 tons measurement gross, the liquidated demand amounts to £36 4s. 4d. per day. The Judge in Admiralty dismissed the action with costs, and the plaintiffs have appealed. It is now for us to decide whether the plaintiffs were entitled to three days demurrage—namely, for Sunday, Monday, and Tuesday, April 19, 20, and 21—to one day's demurrage for the Tuesday—or were not entitled to anything.

The charter-party, dated December 31, 1895, contains the following provisions as to lay days and demurrage:—“Lay days: cargo to be loaded at the rate of 200 tons per weather working day, Sundays and holidays excepted, and all time on demurrage over and above said laying days shall be paid for by the charterers or their agents to the ship at the rate of 4d. sterling per gross register ton per day demurrage. Demurrage at above rate shall be payable for any detention in taking delivery of cargo at port of discharge, the same having to be discharged as customary for steamers at port of discharge.” The construction and effect of these clauses were discussed in argument; although, upon the facts and in result, the matter discussed does not materially affect the rights or liabilities of the parties, I may state our view of the construction of the charter-party. No definite time is fixed for the discharge, either by number of lay days, or by quantity to be discharged, and the demurrage clause which stipulates that the discharge is to be “as customary” differs, in this respect, from the cases to which we have been referred, in which the words “as customary” were held to be restricted to the manner of discharge only. The manner of discharge in many cases must, and in all cases may, affect the time; for example, such a custom as was proved in the BenwickCase (1) to prevail at Limerick, forbidding the use of steam winches, would necessarily increase the time occupied. In the present charter-party, the mention of “detention,” and the form of the clause, make it difficult to restrict it to the mere manner of getting out the cargo; and we assume, in favour of the defendant, that, under its terms, he might and could rely upon any custom of the port of Dublin which, either directly or indirectly affected either the time or the manner of discharge. We also assume, in his favour, that “custom” in such a case is not restricted to a custom strictly so called, which must be so proved as to become an implied term of the contract, but includes any habit or general practice prevailing so generally at the port of discharge as to bind both parties and affect the ship and cargo, even though nothing may have been known of it when the charter-party was signed. But such a custom, in order to prevail, must be proved, certain, and reasonable. The custom alleged by the defendant in this case was a custom, in general terms, to discharge the cargoes of steamers in Dublin at an average rate of about 350 tons per day, calculated on the whole period of discharge.

The plaintiffs, as owners, engaged Mr. Mackenzie of Dublin as their agent. He employed a stevedore who undertook to supply men to give delivery of the cargo as fast as the receivers could take it. The stevedore's duty, therefore, on behalf of the plaintiffs, was to put the cargo over the rail as fast as the defendants would receive it, beginning as soon as was reasonably possible after the vessel was berthed, and continuing the discharge with reasonable and steady diligence, from day to day, until completed. It is undisputed that the number of gangs employed upon each day was fixed by the consignees, and therefore that the rate of discharge was really regulated by them, except on the last two days, as to which there is some controversy which must be separately considered. Though the vessel was berthed at 1 a.m. on Saturday, April 11th, she was not cleared at the Custom House until towards noon, and the ship's log contains an entry that at noon the hatches were all surveyed and passed. It is a question of fact whether, having regard to its being Saturday, to the impossibility of engaging gangs the night before, when the vessel had not arrived, and to all the circumstances, even the note in the log that it was showery weather, it was reasonable to put off the commencement of the unloading until Monday morning. The captain telegraphed on Saturday to the plaintiffs, “arranged discharging 6 Monday morning seen Mackenzie”; and Mackenzie wrote on Monday—“discharge commenced this morning.” There is thus evidence of acquiescence by the plaintiffs, and of arrangement by their agent; and, as an appellate tribunal, we certainly cannot differ from the conclusion that the postponement of the commencement of the discharge to 6 o'clock upon Monday morning was not, in itself, an unreasonable delay. It is, however, an element in the case which would make the obligation to work with reasonable despatch throughout the following week more manifest, and it also made it especially incumbent upon the defendant to go to work on Monday morning with a full complement of men and appliances for discharging the cargo. The cargo was in four holds, each having one hatchway rigged with a steam-winch, and two gangs could work at each hatch. According to the bill of lading, the cargo ought to have contained 2780 tons. It is in evidence that it weighed out only 2715, or, according to the log, 2731. The defendant in his evidence states that he did not become aware that the cargo was short until about mid-day on Monday, April 20th, and therefore his duty of taking discharge should be measured until then by a belief that the ship contained 2780 tons. Once and for all I give the figures which show the work done...