Aktieselskabet Hekla v Bryson, Jameson, and Company
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 1908 |
| Date | 10 December 1908 |
| Court | King's Bench Division |
King's Bench Division
Bray, J.
Aktieselskabet Hekla v. Bryson, Jameson, and Co.
Hulthen v. StewartDID=ASPM 9 Asp. Mar. Law Cas. 285 88 L.T. Rep. 702 (1903) A. C. 389
Postlethwaite v. FreelandDID=ASPM 4 Asp. Mar. Law Cas. 129 42 L. T. Rep. 845 1880 5 A. C. 599
Good v. IsaacsDID=ASPMELR 7 Asp. Mar. Law Cas. 148 67 L. T. Rep. 450 (1892) 2 Q. B. 555
Hick v. RaymondDID=ASPM 7 Asp. Mar. Law Cas. 23 68 L. T. Rep. 175 (1893) A. C. 22
Ropner v. Stoate Hosegood, and Co.DID=ASPMELR 10 Asp. Mar. Law Cas. 32 92 L. T. Rep. 328 (1905) 2 K. B. 543
Charter-party Demurrage Custom of port of Hull
Hulthen v. Stewart (9 Asp. Mar. Law Cas. 285, 403; 88 L.T. Rep. 702; (1903) A. C. 389) distinguished.
186 MARITIME LAW CASES. K.B. DIV.] AKTIESELSKABET HEKLA v. BRYSON, JAMESON, AND Co. [K.B. DlV. Nov. 6 and Dee. 10,1908. (Before BEAY, J.) AKTISELSKABET HEKLA v. BRYSON. JAMESON, AND CO. (a) Charter party-Demurrage-Custom of port of Hull-Wood cargo-Obligations of charterer! and receiver! of cargo. A charter-party provided (inter alia) that the cargo wat to be discharged at fast at the steamer could deliver during the ordinary working hours of the respective portS, but according to the Custom of the respective ports. A custom was alleged which threw on the chartererS and receiverS of cargo a duty to provide or arrange for the steamship (on or before her arrival in dock) a vacant, available, and suitable berth to which the could forthwith proceed, and At supply and have ready a dear quay space the full length of the steamer, and a sufieitnt and continuous supply of bogies. (a) Reported by LEONARD C. THOMAS,Esq.,Barrister-at-Law. Held, that such a custom emitted and was not unreasonable nor inconsistent with the express terms of the charter-party. Hulthen v. Stewart (9 Asp. Mar. Law Cas. 285, 403; 88 L. T. Rep. 702; (1903) A. C. 389) distinguished. COMMERCIAL LIST. Action tried before Bray, J. sitting without a jury. Plaintiffs were the owners of the steamship Fjordheim, and the defendants were the char-terers of the Teasel and receivers of the cargo. The plaintiffs' claim was for demurrage incurred by the said vessel at Hull The facts and arguments are sufficiently stated in the judgment of Bray, J. Hamilton, K.O. and A. Adair Roche for the plaintiffs. Scrutton, K.O. and Holman Gregory for the defendants. BRAY, J.-This action was brought by the plain' tiffs, owners of the steamship Fjordheim, against the defendants, who wene timber merchants at Hull, and charterers and receirers of the cargo of the Fjordheim, to recover demurrage incurred in discharging the vessel at Hull at the beginning of Nor. 1907. The main dispute between the parties was whether the obligation of the defendants was to provide a suitable berth for the vessel on her arrival in the Victoria Dock, Hull, and to supply and hare ready a clear quay space or sufficient bogies whereon or wherein she could discharge her cargo; or merely an obligation to use their best endeavours to provide such berth, quay space, or bogies. The charter-party is dated the 14th Sept 1907, and was in a well, knownform called the " Scanfin," a form which had been adopted in 1899 by agreement between the Timber Trade Federation and the Documentary Committee of the Chamber of Shipping to be used in the carriage of wood cargoes, and the plaintiffs contended that there was a custom of the port of Hull applicable to this charter which created the obligation I have mentioned. Evidence was given in support of and against the alleged custom, and I think it will be convenient that I should decide first the question of fact as to whether this custom existed or not, and consider afterwards the question whether the defendants as charterers under the charter-party were bound by this custom. Before dealing with the evidence, it will be useful to consider what was the course of business at Hull and the general position, as - these facts have an important bearing upon the question whether it was probable that such a. custom should exist. It was admitted by both parties that there was a custom applicable to this charter which threw an obligation on the ship to do more than a ship ordinarily has to do in discharging. In the absence of special agreement or special custom, when the master has brought the cargo to the rail of the ship be has done all that he is bound to do. It is then the duty of the charterer to take delivery. In the case of steamers carrying wood cargoes to Hull it was the duty of the ship master to do more than merely bring the cargo to MARITIME LAW CASES. 187 K.B. DIV] AKTIESELSKABET HEKLA v BRAYSON, JAMESON, AND CO. [K.B. DIV. the rail; it was his duty either to stack it on the quay or to put it into what are called in Hull "bogies." Bogies are trucks 8ft. long, made to run on rails laid down by the owners of the dock, and capable of being taken away, usually, by horses, into the merchant's yard or other places. They are the property of the dock company, who, in the case of the Victoria Dock, are the North-Eastern Railway. For conveni-enoe I shall refer to them as the dock company. They are not intended or fitted for nee on the railway generally. The performance of this duty on the part of the ship undoubtedly throws extra expense on the ship, and it does not seem unlikely that in return the ship should require some additional obligation on the part of the charterer, and the plaintiffs suggested thai, it was in return for this extra burden on the ship that the charterer, according Jo the custom, was bound to take the risk of any delay on the part of the do?? company in providing a clear quay space and sufficient bogies, with the consequence of having to pay demurrage in cese of such delay. Up to the year 1899 it appeared that compara-tively few oases had occurred where there had been such delay, and these had occurred in the autumn months. The risk, therefore, was not a very serious one. It was said that there was another reason why it was both probable and just that this risk should fall upon the charterer -namely, the arrangements between the dock company and the merchants in relation to the use of the quay space and the bogies. I should say here that in this case the parties have in the main confined their evidence as to the course of business in the Victoria Dock, because the ships that discharge in that dock are almost entirely wood-carrying ships, and a large proportion of such ships go to that dock, and this ship discharged in that dock. It was not suggested, however, that this custom applied only to the Victoria Dock, nor that the course of business in other docks in Hull was substantially different Now it appeared that at some time more than ten years ago some regulations were made by the dock company after arrangement with the timber merchants. Shipowners were not con-sulted, nor were their interests regarded. No copy of these regulations was put In evidence, but their effect was stated generally by Mr. Adams, the superintendent of the docks, who was called as a witness by the defendants. Vessels were berthed as far as possible in turn, and the merchant intimated whether ha desired what was called a quay berth or a bogie berth. A quay berth was a berth where the ship could discharge only on the quay, where there were no rails on which bogies could run. There were ton of such berths. A bogie berth was a berth opposite a part of the quay where there were rails on which bogies could run. There ware five of these, and at these the ship could discharge either into bogies or on the quay space behind the rails, if that was dear. If a vessel discharged on tie quay the timber would be piled up on the quay, and the merchant, under the regulations, was allowad without any further payment to keep the timber there so lone as is, was removed at this rute thirty standards a working day. Thus, if (be cargo were 1200 standards, as in this case, the merchant need not entirely remove it for forty working days, a period of over six weeks.At the end of that time the merchant would hare to pay rent or demurrage, but the dock company, if they chose, could remove it at the merchant's expense. As regards bogies, the dock company supplied them to the vessels discharging at bogie berths as far as they could in turn, and the merchant was allowed to take the loaded bogies to his yard and to retain them without further payment provided he returned the discharged bogies at the same rate of thirty standards per day. At the end of that period the mer-chant would have to pay a rent or demurrage of &d. a day. It was the practice of the dockmaster in times of congestion, if a merchant went to extra expense or inoonvenienne in discharging the bogies in his yard earlier, to return "uoh bogies to a ship discharging into bogies for the same charter instead of distributing them between all the ships discharging, as he otherwise would do. From this statement of the coarse of business it is apparent that the provision of quay space and bogies was entirely a matter of arrangement between the dock oompany and...
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