Nelson v Dahl
| Jurisdiction | England & Wales |
| Judgment Date | 08 August 1879 |
| Date | 08 August 1879 |
| Court | Court of Appeal |
Court of Appeal
James, Brett, and Cotton, L.JJ.
Nelson v. Dahl
Ford v. Cotesworth 3 Mar. Law Cas. O.S. 190
Randall v. LynchENR 2 Camp. 352
Brereton v. ChapmanENR 7 Bing. 559
Kell v. AndersonENR 10 M. & W. 498
Brown v. JohnsonENR 10 M. & W. 331
Thiis v. ByersDID=ASPM 3 Asp. Mar. Law Cas. 34
Tapscott v. BalfourDID=ASPM 1 Asp. Mar. Law Cas. 501
Ashcroft v. The Crow Orchard Colliery CompanyDID=ASPM 2 Asp. Mar. Law Cas. 397
Davis v. M'VeaghDID=ASPM 4 Asp. Mar. Law Cas. 149
Schilizzi v. DerryENR 4 E. & B. 873
Bastifell v. Lloyd 1 H. & Coll. 388
Parker v. WinlowENR 7 E. & B. 942
Charter-party Construction Place of discharge
172 MARITIME LAW CASES. Ct. of App.] Nelson v. Dahl. [Ct. of App. Supreme Court of Judicature. COURT OF APPEAL. SITTINGS AT LINCOLN'S INN. Reported by E. S. Roche, J. P. Aspinall and F. W. Raikes, Esqrs., Barristers-at-La. July 7, 8, 10, 11, and Aug. 8, 1879. (Before James, Brett, and Cotton, L.JJ.) Nelson v. Dahl. Charter-party - Construction - Place of discharge - Liability of charterer for delay in unloading - Damages - Custom, of the port of London. By a charter-party it was provided that a steamer belonging to the plaintiffs should carry a cargo of timber from the Baltic " to London Surrey Commercial Docks, or so near thereto as she may safely get, and lie always afloat, and deliver the same on being paid freight" at the rate specified, " the cargo to be received at port of discharge as fast as steamers can deliver," Sundays and legal holidays excepted. The Surrey Commercial Docks are prinate docks. Before the arrival of the steamer the consignees of the cargo and charterers of the vessel endeavoured to secure a place of discharge in the docks; but owing to their crowded state were unable to do so, and the steamer was obliged to lie out fox some time in the river at the Deptford buoys, and ultimately discharged her cargo into lighters. From the evidence it appeared that she would not have been admitted into the docks for several months. An action was brought by the shipowners against the charterers for demurrage for the detention of the vessel, alleging that by the custom of the Baltic trade and by the terms of the charter-party, it was the duty of the defendants to make arrangements with the dock company for the reception of the ship and discharge of the cargo. Held (affirming the decision of Jessel , M.R.), that the alleged custom of the port of London was not proved, but, Held (reversing the decision of the M. R.), that on the true construction of the charter-party, the second alternative came into operation, that, as the crowded state of the dock?? was an obstruction so permanent as to make it commercially impossible for either plaintiff or defendant to wait for its removal, the vessel might deliver " so near thereto as she may safely get," and that the voyage was at an end when the vessel took up her position at the Deptford buoys and was ready to discharge her cargo, and the liability of the charterers commenced from that date. An inquiry was directed as to the amount of damages. This was an appeal by the plaintiffs from a decision of the Master of the Rolls. On the 21st June 1877 a charter-party was entered into between Mesrs. Nelson, Donkin, and Co., shipowners, the plaintiffs, and Messrs. R. H. Dahl and Go,, merchants, of Loudon, the defendants, by which it was agreed that a steamer, called the Euxine, belonging to the plaintiffs, should go to Sodeshamm, in Sweden, and there take on board a cargo of "deals" for the defendants, and " proceed to London Surrey Commercial Docks, or so near thereunto as she may safely get, and lie always afloat, and deliver the same on being paid freight" at a specified rate, " the cargo to be supplied to steamer at port of loading as fast as she can take the same on board, Sundays and legal holidays excepted, and to be received at port of discharge as fast as steamer can deliver, as above.' Before the ship arrived in the Thames, the defendants endeavoured to procure a berth for her to discharge in the Surrey Commercial Docks, but owing to the crowded state of the docks they were unable to do so, and when she arrived she was unable to gat into the docks, and bad to lie out for some time in the river at the Deptford buoys. The defendants had obtained the promise of a berth in the Mill-wall Dock, but on the refusal of the plaintiffs to compensate them for the difference, as they alleged, in the value of the timber at the two docks, that arrangement came to nothing, and eventually the cargo was discharged by lighters, employed by the plaintiffs, into the Surrey Commercial Docks. The plaintiffs brought their action against the charterers claiming demurrage for the detention of the ship. The ??stion was whether by the terms of the ch?? party or otherwise an obligation was imp?? on the defendants to have a berth ready for the reception and discharge of the ship when she arrived. The plaintiffs' case was that this obligation existed by reason of the charter-party itself, or, if not, that it was imposed by a custom in the Baltic timber trade in the port of London, for the consignee or receiver of a cargo of timber, and more particularly of "deals,' where a particular dock is named in the charter-party, to make necessary arrangements with the dock owner for the reception and discharge of the -ship. On failure of the consignee to make such arrangements according to the alleged custom, he would be liable to the shipowner for any delay. Some of the leading shipowners, and brokers, and timber merchants in the city of London were called on both sides to prove and disprove respectively the alleged custom. In the court below, Jessel, M.B., in giving judgment, said : - I must read this charter-party as any other mercantile document, and must assume that the shipowner when he entered into it knew perfectly MARITIME LAW CASES. 173 Ct. of App.] Nelson v. Dahl. [Ct. of App. well the meaning of the words to deliver at the Surrey Commercial Docks. That dock company, just as all other private dock companies, is ready enough to receive vessels for the purpose of discharge if they have room. It may, however, happen that owing to a press of business a ship may not be able to get in for some time, and therefore a shipowner entering into a contract of this sort does so, in my opinion, on the chance of being able to get into the dock. That is the construction pat on the contract independent of the usage, and the shipowner must not only take his ship outside, but must take her inside, and even (though it is not necessary for the decision here) to a berth in the dock. That is an obligation quite independent of the question whether the dock happened to be full, or even when, from stress of weather, and too great draught of water, or, it might be, from some accident to the dock gates, the ship is unable to get inside the dock. The shipowner took that risk, but then so did the charterer or consignee, who was for the time deprived of his cargo. Both parties, therefore, took their chance of arriving at the place of discharge, unless the contract is controlled by the custom. Now, is there such a custom as alleged? In my opinion no each custom has been proved by the plaintiffs. It is a question of fact, and mast be strictly proved. The custom must, moreover be notorious, so that every person in the trade must know of it and regard it as a term of any contract entered into. The custom must, moreover, be uniform, certain, and reasonable, and such an absence of these conditions I have rarely seen. The practice of a named dock is only of recent introduction, and steamers have only since 1876 been generally used in the trade. It is therefore very unlikely that such a custom can have been established in such a short time. As to sailing vessels, which were in use prior to 1876, scarcely an instance has been proved in which such a custom has been really established, and where demurrage has been actually paid for the delay. No doubt the plaintiffs had called witnesses who had honestly testified to the existence of such a custom; but, on the other hand, the defendants had called merchants and shipowners, none of whom had ever heard of it, and some of whom were engaged in the largest transactions. In these circumstances I cannot say the usage was so well known, or so well established, as to exist as a recognised mercantile custom, and therefore the plaintiffs have failed to establish their case and the action must be dismissed with costs. The defendants will, of course, as they have offered to do, pay the freight and all usual landing charges. From this decision the plaintiffs appealed. Benjamin, Q. C., Chitty, Q. C., Cohen, Q. C., and J. Rigby, for the appellants, contended that the defendants had actively interfered and prevented the steamer from obtaining admission to the docks; that each obstacle to the delivery of the cargo at the place primarily named was to be considered of a permanent nature, it being one which could not be removed within a reasonable time, and that under the circumstances the vessel having arrived within the terms of the charter-party at the alternative place of discharge; the shipowners were entitled to call upon the defendants to take delivery of the cargo at that place, a place so near to the docks as the vessel could safely get. On this point they referred to Schilizzi v. Derry, 4 E. & B. 873; 25 L. T. Rep. 66. They further contended that by the custom of the port of London with regard to timber ships from the Baltic, the charterers undertook absolutely to obtain admission of the vessel into the docks, and that, if they did not, they were liable to pay damages in the nature of demurrage. The following cases were also referred to: Randall v. Lynch, 2 Camp. 352; Brown v. Johnson, 10 M. & W. 331; Thiis V. Byers, 3 Asp. Mar. Law Cas. 347; 31 L, T. Rep. N. S. 526; L. Rep. 1 Q. B. Div. 244: Tapscott v. Balfour, 1 Asp. Mar. Law Cos. 501; 27 L. T. Rep. N. 8...
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