Ardan Steamship Company v Weir (Andrew) & Company
| Jurisdiction | England & Wales |
| Judgment Date | 04 August 1905 |
| Date | 04 August 1905 |
| Docket Number | No. 11. |
| Court | House of Lords |
Ship - Charterparty - Damages for Detention - Reasonable Time for loading - Obligation to have Cargo ready - Custom of Port.
By a charterparty dated May 30, 1900, which did not fix the time within which the vessel was to be loaded, the steamship Ardandearg, of which the plaintiffs were owners, was chartered by the defendants to proceed to such loading berth as the freighters might name at Newcastle, New South Wales, and after being in loading berth as ordered to load “in the usual and customary manner” a full and complete cargo of Australian coal, “as ordered by the charterers, which they bind themselves to ship (except in case of riot, strikes, &c., or any other accidents or causes beyond the control of the charterers, which may delay her loading).” By the custom of the port of Newcastle a vessel was not allowed to occupy a loading berth until she had received a loading order from a colliery. These orders were issued in turn, and there were no facilities for storing coal at the port. The Ardandearg arrived at her destination on July 14, 1900, and was ready to load; but there was no cargo ready for her until August 13, and then not enough. She had twice to be removed from her berth under a regulation of the port that a vessel must not occupy a berth when not loading, and her loading was not completed until August 23. The plaintiffs claimed damages for the detention of the vessel owing to the delay in providing the cargo:—
Held, reversing the decision of the First Division of the Court of Session, that the defendants were liable in damages on the ground that it was their primary duty as charterers to furnish the stipulated cargo; and there was nothing to be found in the charterparty or the evidence which qualified this absolute obligation.
APPEAL from a judgment of the First Division of the Court of Session, Scotland, dated January 19, 1904, which reversed the decision dated April 2, 1903, of the Lord Ordinary (Lord Pearson).F1
The Ardan Steamship Company, the appellants, claimed damages for detention of their steamship Ardandearg at Newcastle, New South Wales, by Andrew Weir & Co., the charterers and respondents. By charterparty between the agents for the appellants and the respondents dated May 30, 1900, the Ardandearg was chartered by the respondents to proceed with all possible despatch “to such loading berth as freighters may name at Newcastle, New South Wales, and after being in loading berth as ordered …. to then load in the usual and customary manner a full and complete cargo of Australian coals as ordered by charterers, which they bind themselves to ship (except in the event of riot, commotion by keelmen, strike, or lock-out of shipper's pitmen, or any hands striking work, frost or floods, or any other accidents or causes beyond the control of the charterers which may delay the loading) …. and shall therewith proceed to Java …. the cargo to be unloaded at the average rate of not less than 400 tons …. per working day …. Should steamer not arrive at her loading port and be ready to load on or before July 15, charterers to have the option of cancelling this charter.” There was no provision as to the time in which the ship was to be loaded. On June 9 the respondents ordered a cargo of coal from the Lambton Colliery, Newcastle. The Ardandearg arrived on July 14; two other ships having coaling orders from the same colliery (which is a small one, producing about 350 tons a day) had arrived before her, and, in consequence of the small output of the colliery and there being no facilities to store coal at the port, the loading of these ships was not completed until August 13. On that date the Ardandearg, having obtained a colliery order and a berth, began to load; but twice she had to leave her berth, there being no coal ready, and the loading was not completed until August 23, and she sailed on the next day. Thereupon this action was raised by the appellants for damages for the detention of the vessel for thirty-one days, which detention they alleged was caused by the respondents not timeously providing a cargo. The appellants contended that if the Ardandearg had been able to load in ordinary course the loading would have been completed by July 23.
The respondents averred in their statement: “(3.) Under the charterparty the Ardandearg was bound to proceed to Newcastle with all possible despatch. This, as the defenders have since learned, she failed to do, having loaded a cargo at Kobe and discharged the same at Sydney. But for this delay the Ardandearg would have received a loading berth, and been loaded much sooner than she was. On her arrival at Newcastle there was a large accumulation of tonnage, both steam and sailing, and the Ardandearg was thus prevented from getting a berth. This accumulation was caused by disputes between masters and workmen and scarcity of workmen, which restricted the output at the pit from which the Ardandearg was to get coal.
“(4.) Two steamers, the Palatinia and the Timor, which were to load from the Lambton Colliery, arrived a day or two before the Ardandearg. The defenders' agent at Sydney warned the captain of the Ardandearg that he should proceed to Newcastle so as to catch her turn before said two vessels arrived. Instead, however, of doing so he delayed at Sydney. Owing to the Ardandearg arriving at Newcastle after the said two vessels which were loading from the same colliery, she failed to get a loading berth until after they were loaded, waiting her turn in accordance with the ordinary and customary manner of loading at Newcastle. Owing to the cause above specified the Ardandearg only got a loading berth on August 13. No delay for which the defenders are responsible under the charterparty occurred.”
May 22, 23, 25, 26. Carver, K.C., and Bailhache (with them James Clark, of the Scottish Bar), for the appellants. The plaintiffs' vessel, if the coal had been ready, would have had no difficulty in getting a berth. That the coal was not ready was entirely the fault of the charterers. This particular colliery had entered into a contract to supply 15,000 tons; and it could produce 350 tons only a day, and one ship only could load at a time. The question was on whom the risk of delay was to fall when the colliery could only supply so small a daily amount and the ship was ready. The liability for delay falls on the charterers; for, in the absence of stipulation to the contrary, it has always been held that the merchant under contract of affreightment is absolutely bound to have his cargo in readiness for the ship at the port of loading, so that she may be loaded within the lay-days, if such are stipulated for, or within a reasonable time if no lay-days are fixed: Earl of Selborne L.C. in Grant & Co. v. Coverdale, Todd & Co.F2; Kay v. Field & Co.F3; Lord Blackburn in Postlethwaite v. FreelandF4; Gardiner v. Macfarlane, M'Crindell & Co.F5
The exceptions in the charterparty do not exonerate the charterers from not having a cargo ready. In considering what is a reasonable time for loading, regard no doubt must be had to the circumstances existing in the port at the time the vessel is waiting for her cargo. If, for instance, the customary loading is by cranes, and all cranes are occupied, or if the customary manner of loading is by lighters, and the necessary number of lighters through no fault of the charterers are not to be obtained, the charterers are not liable for delay so caused. But where, as here, the delay is caused by the failure of the charterers to make due and timeous provision to supply a cargo, the responsibility for detention will not be discharged by the charterers attempting to shew that they individually took reasonable means to fulfil their contract, and that the blame rested with the colliery with which the charterers contracted. What in this case have the rules or custom of the colliery as to working to do with the appellants? The custom of the colliery is not a part of the charterparty. The evidence shewed that at the time the charterparty was signed the respondents had made no arrangements for obtaining a cargo. Not until June 9, 1900, did they enter into a contract with the Scottish...
To continue reading
Request your trial
-
Inverkip Steamship Company v Bunge & Company
...12 Asp. Mar. Law Cas. 358 109 L. T. Rep. 217 (1913) 3 K. B. 366 Ardan Steamship Company v. Andrew Weir and Co.DID=ASPM 10 Asp. Mar. Law Cas. 135 93 L. T. Rep. 559 (1905) A. C. 501 Hulthen v. Stewart and Co.DID=ASPM 9 Asp. Mar. Law Cas. 403 88 L. T. Rep. 792 (1903) A. C. 389 Mersey Steel and......
-
Sociedad Financiera de Bienes Raices S.A. v Agrimpex Hungarian Trading Company for Agricultural Products; The Aello
...lay days began on the 12th, not the 29th October. I think that the point is concluded by the decision of this House in Ardan Steamship Company, Limited v. Andrew Weir & Co. [1905] A.C. 501. Moreover, I have had an opportunity of reading in advance the Opinion that has been prepared by my n......
-
Triton Navigation Ltd v Vitol S.A.; the Nikmary
...-v—Agrimpex (The Aello) [1958] 2 QB 385, 402–3). But it is now clear on highest authority that any duty at this stage is also absolute: Ardan -v—Weir [1905] AC 501, as explained and followed in the House of Lords in The Aello [1961] AC 135, where Lord Radcliffe put the matter as follows (em......
-
Becher (Kurt A.) G.m.b.H. & Company (K.G.) v Roplak Enterprises S.A. (World Navigator)
... ... As Lord Sumner said in Love & Stewart Ltd. v. Rowtor Steamship Co. Ltd ... [1916] 2 AC 527 at page 535, provisions for loading based on ... ...