Aberdeen Glen Line SS Company v Macken, The SS Gairloch

JurisdictionUK Non-devolved
Judgment Date19 November 1897
CourtHouse of Lords
Date19 November 1897

Appeal.

Before FITZ GIBBON, WALKER, and HOLMES, L.JJ.

ABERDEEN GLEN LINE STEAMSHIP CO.
and

MACKEN.

THE SS. "GAIRLOCH".

Benwick Case Not reported.

Ship — Charter party — Demurrage — Custom of port of Dublin — Reasonable despatch — Appeal — Jurisdiction — Questions of fact.

CASES DETERMINED BY THE QUEEN'S BENCH DIVISION OP THE HIGH COURT OF JUSTICE IN IRELAND, AND BY THE IRISH LAND COMMISSION, AND ON APPEAL THEREFROM IN THE COURT OF APPEAL, AND BY THE COURT FOR CROWN CASES RESERVED. 1899. ABERDEEN GLEN LINE STEAMSHIP CO. v. MA.CKEN. Appeal. 1897. THE SS. " GAIRLOCH " (1). Nov. 16, 17, 19. Ship—Charter party—Demurrage—Custom of port of Dublin—Reasonable despatch—Appeal—Jurisdiction—Questions of fact. There is no established custom of the port of Dublin to discharge cargoes of steamers at an average rate of 350 tons per day, calculated on the whole period of discharge. A charter-party which provides that the cargo is " to be disÂcharged as customary for steamers at port of discharge" is in effect an open charter-party, under which it is the right of the ship and the duty of the conÂsignee to have the cargo discharged. with reasonable despatch. The giving of reasonable despatch is a requirement which the consignee is bound to satisfy de die in diem. He cannot, by working extra hard on one day, entitle himself to idle on another day ; and if he has done more than an average quantity at the beginning of the discharge, he cannot on that account relax the measure of reasonable diligence towards the end. (1) Before FITZGIBBON, WALKER, and. HOLMES, L.JJ. 1899—VoL. II. 2 Appeal. 1897. THE 88. GA 'BLOCH . THE IRISH REPORTS. [1899. The principles discussed, which guide the Court of Appeal in dealing with the findings of fact arrived at by a Judge sitting without a jury in the Court of first instance. APPEAL by the plaintiffs from the judgment of Mr. Justice Johnson (sitting without a jury) refusing to award demurrage for the detention of their steamer the " Gairloch " in the port of Dublin. The facts are fully stated in the judgment of Lord Justice Fitz Gibbon. Barton, Q.C., and Blood, for the appellants. Serjeant Dodd, and S. L. Brown, for the respondent. Nov. 19. 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 Ayr6s 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 amendÂment was intended as a claim for Sunday, April 19, as a demurÂrage 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 TuesÂday, 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 VoL. II.] QUEEN'S BENCH DIVISION. 3 over and above said laying days shall be paid for by the charterers Appeal. or their agents to the ship at the rate of 4d. sterling per gross 1897. register ton per day demurrage. Demurrage at above rate shall THE s t oes. K. be payable for any detention in taking delivery of cargo at port of Fitz LG. Gibbon, 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 cusÂtomary " 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 Berwick Case (I) to prevail at Limerick, forbidding the use of steam winches, would necessarily increase the time occuÂpied. 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 indiÂrectly 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 defenÂdant in this ease 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. (1) Not reported. B2 4 THE IRISH REPORTS. [1899. Appeal. The evidence offered in support of this alleged custom went no 1897. farther than to show that, taking a number of steamers of different THEss. construction and capacity, the facilities for whose discharge, and GAIRLOCH. the circumstances of whose discharge, were unknown, the cargoes Fitz Gibbon, L.J. were taken out at a rate averaging, upon the whole, somewhere about 350 tons per diem. Such evidence falls wholly short of establishing any custom which could affect the ordinary common law right of the owners of the " Gairloch," and therefore this charter-party appears to us to be in effect an " open charter-party," under which it was the right of the ship, and the duty of the conÂsignees, to have the cargo discharged with reasonable despatch, having due regard to all the circumstances of the port, ship, and cargo, without exceptional exertion on the one hand, and without unnecessary delay upon the other. In ascertaining what was reasonable despatch, we are entitled to have regard to all the cirÂcumstances—including the time proved to have been required to do similar work in similar cases, the size and construction of the particular ship, the nature and condition of the cargo, the mechaniÂcal appliances, and the manual labour available, but, above all, to what is the hest and most direct evidence, the proof of what was actually done, from day to day, in discharging the " Gairloch " herself. 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 reÂceive 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 unÂdisputed 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 conÂsidered. 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, Vox.. II.] QUEEN'S BENCH DIVISION. having regard to its being Saturday, to the impossibility of en- Appeal. gaging gangs the night before, when the vessel had not arrived, 1897. SS. and to all the circumstances, even the note in the log that it was TILE GAIRLOCH. showery weather, it was reasonable to put off the commencement Fitz Gibbon, of the unloading until Monday morning. The captain telegraphed L.J. on Saturday to the plaintiffs, " arranged discharging 6 Monday morning seen Mackenzie " ; and Mackenzie wrote on MondayÂ" 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 disÂcharge 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...

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