Carlberg v Wemyss
| Jurisdiction | Scotland |
| Judgment Date | 11 March 1915 |
| Docket Number | No. 72. |
| Date | 11 March 1915 |
| Court | Court of Session |
Lord Hunter, Lord President, Lord Johnston, Lord Skerrington.
ShipAffreightmentDemurrageArrival of ship before bills of lading Rejusal of master to discharge until bills of lading producedOffer of bank guarantee.
A ship carrying pit props from a port in Sweden to a port in the Firth of Forth arrived, as often happened in the trade, before the bills of lading, which were sent by post. Contrary to the usual practice in such cases, the master, acting on the charterer's instructions, refused to discharge the cargo without production of the bills, although the consignees were ready to take delivery and offered to give a bank guarantee indemnifying him from all liability. After a delay of some twenty-four hours the ship began to discharge the cargo, under an arrangement between the agents of the charterer and a railway company, into the hands of the railway company as wharfingers, and continued to do so until the arrival of the bills of lading, when she delivered the remainder of the cargo to the consignees. The bills of lading provided the captain to deliver all cargo on ship's railing, and the same to be taken from there by the consignee notwithstanding any custom of the port to the contrary. The goods to be received as fast as the steamer can deliver day and night, or the same will be landed or put into lighters at the risk and expense of the consignee.
In an action brought by the charterer against the vendees of the cargo for demurrage in respect of the detention of the ship prior to the
commencement of the discharge, the Court assoilzied the defenders, per the Lord President, on the ground that there was no unqualified obligation on the part of the consignees, either at common law or under the contract, to produce the bills of lading as soon as the ship was ready to discharge, and that the detention of the ship was due to the unreasonable conduct of the pursuer, and not to the fault of the consignees; perLord Skerrington, on the ground that as the bills of lading did not specify any period within which the cargo must be discharged, the obligation on the consignees was to use the utmost dispatch practicable in the circumstances, which had been done:Lord Johnston being of opinion that, although the consignees were not entitled to delivery of the cargo until the bills of lading were produced, the circumstances of the detention of the ship were such as could not justify more than nominal damages.
Observations on the rights and duties of the shipowner, the master, and the consignee, in the event of the consignee being unable to produce the bills of lading for the cargo at the port of discharge.
On 18th June 1913 Herman Carlberg, shipowner, Gothenburg, brought an action against the Wemyss Coal Company, Limited, in which he claimed the sum of 51,19s. 6d. as demurrage for the detention of the s.s.St Helens.
The following narrative of the facts of the case, as disclosed by a proof, is taken from the opinion of the Lord Ordinary:
In this case the time charterer of the s.s.St Helens sues receivers of cargo ex that vessel for damages in respect of their failure timeously to produce the bills of lading and take delivery thereunder.
On the evening of Saturday, 16th November 1912, the s.s.St Helenssailed from Gothenburg with a cargo of pit props shipped partly by a firm of Messrs Hellstrom & Vleugel, and partly by a firm of Emil Nilsson & Company, both of Gothenburg. In terms of the bills of lading the pursuer undertook to deliver the cargo to Messrs Voge & Dacker, Leith, and Messrs Chr. Salvesen & Company, Leith, at Methil. The consignees of the cargo disposed thereof to the Wemyss Coal Company, Limited, who are the defenders.
By the bills of lading it was providedThe captain to deliver all cargo on ship's railing, and the same to be taken from there by the consignee, notwithstanding any custom of the port to the contrary. The goods to be received as fast as the steamer can deliver day and night, or the same will be landed or put into lighters at the risk and expense of the consignee.There is also a stipulation to the effect that the steamer is to have a lien on goods for freight, dead freight, demurrage, average, and all other charges incurred, not referring to the transport, loading, and discharging of the cargo, and steamer's readiness to count from the time of her arrival in port and clearing at the custom-house, any law and/or custom of port to the contrary notwithstanding.
On Tuesday, 19th November 1912, the s.s.St Helens arrived at Methil, cleared at the custom-house, and was ready to discharge her cargo about 11 a.m. on that day. Before that time the pursuer's representatives at Methil were in telephonic communication with the consignees of the cargo. They explained that the captain of the vessel had been instructed by the pursuer not to deliver the goods except on presentation of the bills of lading. The consignees, who were both well-known to the pursuer and his representatives, offered a bank guarantee indemnifying the master from all liability through delivering the cargo in the absence of the bills of lading, but this offer was refused. According to the evidence of Mr Anderson, secretary of the defendersCompany, their agents were ready to receive the cargo immediately on the arrival of the boat; trucks and everything were ready. The pursuer practically admitted that if his agents had accepted the offer of a bank guarantee, the discharge would have gone on at once and no demurrage would have been incurred. Similarly no such claim would have arisen if the master had discharged the cargo and retained the ship's lien for freight and charges.
The bills of lading were not received by the pursuer's representatives until the 21st and 22nd November 1912. On 20th November 1912, however, the cargo was by arrangement between the North British Railway Company and the pursuer's representatives delivered to that company as wharfingers, and intimation was made to the defenders that the discharge had commenced. The detention of the vessel for which the pursuer seeks to make the defenders responsible is 371/2 hours, viz., from 11 a.m. on 19th November 1912 to 12.30 p.m. on 20th November 1912, and from 6 p.m. on said date to 6 a.m. on 21st November, discharge having ceased during the latter period owing to the vessel having to vacate her discharging berth.
The defenders pleaded,inter alia;(3) Any delay in discharging the vessel having been caused by the fault of the pursuer or his agents, the defenders should be assoilzied.
On 9th January 1914 the Lord Ordinary (Hunter), after proof, assoilzied the defenders.*
The pursuer reclaimed, and the case was heard before the First Division (without Lord Mackenzie) on 25th and 26th February and 2nd and 3rd March 1915.
Argued for the reclaimer;The defenders were liable in demurrage. The title to the cargo was the bill of lading, and until the title was produced the shipmaster could not be called upon to give delivery.1The bill of lading, further, was a negotiable instrument, and the shipmaster could not tell until the bill of lading was produced who was the owner of the cargo. The contract was to give delivery on production of the bill of lading. The clause in the bill of lading giving the master power to deliver into lighters if the cargo were not received as fast as the ship could deliver gave him an option, but imposed no duty on him.2 By common law,3and by the contract, the consignees must be ready to take delivery when the ship cleared the custom-house. If the consignees were not able to receive the cargo then, they were liable in demurrage unless they could show that the circumstances of the port or the fault of the ship had prevented them from receiving it.4 There was here no such proof. The shipmaster might have taken an indemnity, but was not bound to do so.5 The taking of an indemnity was not a satisfactory mode of procedure. It had not been proved that there was a custom of the port to take such an indemnity. The necessary proof that the custom was reasonable, certain, consistent with law and with the contract, and universally followed,6was awanting.
Argued for the respondents;The pursuer had acted unreasonably, and was himself the cause of the detention of the ship. It was the usual course of the trade that the ship arrived at the port
of discharge before the bills of lading, and the defenders were not at fault in not producing them as soon as the ship cleared the customs. The custom of the portto take a bank guarantee and give delivery before the bills of lading arrivedhad been proved, and it should have been followed, or the shipmaster should have landed the cargo under reservation of lien.1 The latter course had been followed on the 20th November. Failure to follow it on the 19th was unreasonable, and the consignees were not liable for the ensuing delay.2The bills of lading fixed no time within which discharge was to be completed, and a reasonable time must be allowed.3 The time taken was reasonable. The case of The Arne4 was distinguishable on the facts.
At advising on 11th March 1915,
Lord President.This is an action of damages for detention of a steamship at the port of discharge, on the ground that she was detained through the fault of the defenders in failing timeously to produce the bills of lading.
I am of opinion that there is in this record no relevant averment of fault on the part of the defenders, and, at all events, that none is established by the evidence. My reason for saying that there is here, in my opinion, no relevant case against the defenders is that the action appears to me to be raised upon the assumption that there is an absolute and unqualified obligation on the part of the consignee to present his bill of lading immediately the ship is ready to discharge, under pain of being found liable in damages for the detention of the ship. Now, I do not think that assumption can...
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