Clink v Radford

JurisdictionEngland & Wales
Judgment Date03 March 1891
Date03 March 1891
CourtCourt of Appeal
[IN THE COURT OF APPEAL.] CLINK v. RADFORD & CO.

1891 March 3.

LORD ESHER, M.R., BOWEN and FRY, L.JJ.

Ship - Charterparty - Cesser Clause - Charterer's Liability to cease on Cargo being loaded - Lien for Demurrage - Damages for Detention at Port of Loading.

By a charterparty the ship was to load a cargo in the usual and customary manner and proceed to the port of discharge, and there deliver the same “to be unloaded at the average rate of not less than 100 tons per working day … or charterers to pay demurrage at the rate of 4d. per ton register per diem … the charterers' liability under this charterparty to cease on the cargo being loaded, the owners having a lien on the cargo for the freight and demurrage.” In an action by the shipowner against the charterers to recover damages for detention at the port of loading:—

Held, that the word “demurrage” in the lien clause did not cover damages for undue detention at the port of loading, and that therefore the cesser clause did not exempt the charterers from liability for the delay.

Bannister v. Breslauer (Law Rep. 2 C. P. 497) discussed.

APPEAL from the judgment of Pollock, B., at the trial, with a jury, of an action by a shipowner against charterers to recover damages under a charterparty for detention at the port of loading.

By the charterparty the plaintiff's ship was chartered by the defendants for a voyage from Newcastle, New South Wales, where she was to load “in the usual and customary manner a full and complete cargo of coals,” to San Francisco, and there to deliver the same, “the cargo to be unloaded at the average rate of not less than one hundred tons per working day … or charterers to pay demurrage at the rate of fourpence per ton register per diem, except in case of unavoidable accident … the charterers' liability under this charterparty to cease on the cargo being loaded, the owners having a lien on the cargo for the freight and demurrage.”

At the trial the jury found that the defendants detained the ship in loading sixteen days beyond what was usual and customary, and assessed damages for such detention. Upon the argument on further consideration the defendants contended that their liability for detention at the port of loading ceased under the charterparty upon the ship being loaded. The learned judge held that the cesser clause did not apply, and gave judgment for the plaintiff. The defendants appealed.

R. T. Reid, Q.C., and Spokes, for the defendants. The cesser clause applies to liability for detention at the port of loading. There is no rate of demurrage specified in the charterparty so far as regards the loading of the cargo. The result of the cases seems to be this: that the cesser clause takes effect where the shipowner is protected by the lien; that the cesser clause applies to past as well as future breaches; and that accordingly to protect the shipowner the Court construes the lien clause liberally by extending it beyond demurrage in its strict legal sense, and applying it to damages for undue detention at the port of loading. The case of Lockhart v. FalkF1 is not contrary to this view; but if it decided that where there was no clause in the charterparty allowing demurrage at the port of loading the cesser clause did not apply to liability for detention at the port of loading, that case is not consistent with the subsequent cases. In French v. GerberF2, Brett, J., in delivering the judgment of the Court, seemed to think that the presumption is against the cesser of liability unless the clause plainly shews that the liability is to cease. In the same case in the Court of AppealF3, Mellish, L.J., seemed to put the presumption the other way — that all liability is to cease unless there is something to shew the contrary. It is submitted that the latter is the true view. In Francesco v. MasseyF4 and Kish v. CoryF5 the cesser clause was held to apply to liabilities for past breaches. In Bannister v. BreslauerF6 the cargo was to be loaded and discharged “with all dispatch,” and there was no provision for demurrage in the charterparty. It was held that the cesser clause released the charterers from liability for undue detention at the port of loading, the lien for “demurrage” covering the breach. That case, no doubt, was questioned by some of the judges in Gray v. CarrF7; but it was treated as binding in Francesco v. MasseyF4, and has never been overruled. That case shews that the word “demurrage” may include damages for detention at the port of loading. The cesser clause is the governing clause, and if necessary the lien clause must be extended so as to be co-extensive with the cesser clause: If that cannot be done, still the cesser clause must have full meaning given to it, even though the shipowner is left without any remedy in respect of the particular breach complained of. There is no difficulty about a lien for unliquidated damages; the course to pursue is to pay the amount claimed to the dock company or into a bank, as was done in Dahl v. NelsonF8, and so obtain the release of the cargo. They also referred to Sanguinetti v. Pacific Steam Navigation Co.F9, Harris v. JacobsF10, and Restitution Steamship Co. v. Pirie.F11

J. G. Barnes, Q.C., and Leck, for the plaintiff, were not called upon, but they referred to Gardiner v. Macfarlane.F12

LORD...

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13 cases
  • Hansen v Harrold Brothers
    • United Kingdom
    • Court of Appeal
    • 1 Marzo 1894
    ...of Appeal Lord Esher, M.R., Lopes and Davey, L.JJ. Hansen v. Harrold Brothers Clink v. RadfordDID=ASPMELR 64 L. T. Rep. N. S. 491 7 Asp. Mar. Law Cas. 10 (1891) 1 Q. B. 625 Shand v. SandersonUNK 28 L. J. 278, Ex. Gledstanes v. AllenENR 12 C. B. 202 Arrospe v. Barr 8 Court of Sess. Cas. 4th ......
  • Fidelitas Shipping Company Ltd v V/O Exportchleb
    • United Kingdom
    • Court of Appeal
    • 29 Julio 1963
    ...general principle applicable, where the cesser clause is connected with the provision as to lien as in the present case, is laid down in Clink v. Radford. I will not repeat what has been cited from the judgments in that case, but it appears to me that Lord Justice Bowen put the principleto ......
  • Overseas Transportation Company v Mineralimportexport (Sinoe)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 Diciembre 1971
    ...in so far as the owners are given a lien On the cargo. That was laid down by Lord Esher, Master of the Rolls, in the leading cases of Clink v. Bedford (1891) 1 Q. B. 623; and Hansen v. Harrold Brothers (1894) 1 Q. B. 612. But the present case has thrown up a new point. Mr. Rokison for the c......
  • Action S.A. v Britannic Shipping Corporation Ltd (Aegis Britannic)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 6 Mayo 1986
    ...bite on discharge. 7 The courts have long since considered cesser clauses. The leading authority is the decision of this court in Clink v. Radford & Co. (1891) 1 Q.B. 625. There it so happened that the difficulty of construction was concerned with how the lien clause and the cesser clause w......
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