Neptune Steam Navigation Company v Sclater. The Delano
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1894 |
| Date | 08 November 1894 |
| Court | Court of Appeal |
Court of Appeal
Lord Esher, M.R., Lopes and Rigby, L.JJ.
Neptune Steam Navigation Company v. Sclater and Procter. The Delano
Randall v. LynchENR 2 Camp. 352
The CashmereDID=ASPM 62 L. T. Rep. 814 6 Asp. Mar. Law Cas. 515 15 P. Div. 121
Reg. v. Judge of the City of London CourtDID=ASPMELR 66 L. T. Rep. 135 7 Asp. Mar. Law Cas. 130 (1892) 1 Q. B. 273
The HeroDID=ASPMELR 65 L. T. Rep. 499 7 Asp. Mar. Law Cas. 86 (1891) P. 294
Smith v. Baker 65 L. T. Rep. 467 (1891) A. C. 325
County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71), ss. 26, 31
County Courts Act 1888 (51 & 52 ict. c. 48), s. 120
Admiralty — County Court — Right of appeal
MARITIME LAW CASES. 523 App.] Neptune Steam Navigation Co. v. SCLATER and Procter ; The Delano. [App. July 13 and Nov. 8,1894 (Before Lord Esher, M.R., Lopes and Eight, L.JJ.) Neptune Steam Nayigations Company v. SCLATER AND PROCTER. THE DELANO. (a) Admiralty-County Court-Right of appeal-- County Courts Admiralty Jtirisdiction Act 1868 (31 & 32 Vict. c. 71). ss. 26. 31-County Courts Act 1888 (51 & 62 Viet. c. 48), a. 120-Bill of lading - " Ship may commence discharging immediately on arrival"-Custom of dock. Under sect. 120 of the County Courts Act 1888 there is a right of appeal in an Admiralty cause or suit on a point of law, although the amount involved is under 50l. Semble: There is a right of appeal on a question of fact, if the amount exceeds 50l., under sects. 26 and 31 of the County Courts Admiralty Jurisdiction Act 1868. Where a hill of lading for a grain cargo provided that the ship "may commence discharging immediately on arrival," and upon the ship's arrival the berth for grain cargoes was occupied, and the ship was not able to immediately commence discharging, but she was discharged aa fast aa she could be under the circumstances, the Court refused to give the shipowner damages for detention. APPEAL from the Divisional Court of the Probate, Divorce, and Admiralty Division. The plaintiffs, who were the owners of the steamship Delano, claimed from the defendants, as consignees under certain bills of lading in respect of the vessel, the sum of 4&1. 9". 4d. for one day's detention of the Delano in the river Tyne, at the rate of fom-pence per ton per day on 2%'8 tons. Clause 5 of the bill of lading previded that: The ship may commence discharging immediately on arrival and diaohorge oontinnonaly, the collector of the port being hereby authorised to grant a general order for discharge immediately on arrival, and if the goods bo not taken by the consignees within sooh time as is provided by the regulations of the port of discharge, they may bo stored by the carrier at the cspense and wish of their owners. The Delano brought a cargo of grain from America and proceeded to Rotterdam, where she discharged a portion, and then came on to the Albert Edward Dock at Newcastle to discharge the remainder; and it was here that the alleged detention occurred. The ship arrived at the port of discharge at 5 a.m. on Saturday, the 11th Nov. 1893. All discharging is done by the Tyne Commissioners, and the master delivered the manifest at 10 a.m. requesting them to unload the ship. Upon that manifest it appeared that the master was not allowed to hand over any portion of the cargo until such delivery was made. There is only one berth for gi-ain cargoes, and it was then occupied until after 1 p.m. The Delano was hauled into the berth at 3 p.m., which was after working houi-s on Saturdays. She began discharging on Monday, the 13th, at 7 a.m., and thence pi-o-ceeded continuously till 10 p.m. each day, the discharge being completed on the following Friday. The owners of the Delano brought an action on the Admiralty side in the Sunderland Coimty Court for damages for one day's detention of the vessel. The learned County Court judge, in giving judgment for the plaintiffs for one day s detention, said: " The cases cited by Mr. Bolam (for the plaintifEs), commencing with Eandidl v. Lynch (2 Camp. 352), clearly establish that in such a case as the present the owner is entitled to damages for demui-rage or detention, although the delay may have been occasioned by the crowded state of the docks, or other causes not occasioned by default of the (a) Reported by Bash. Obvhp, E(K|.,BMrrUter-at-Law 524 MARITIME LAW CASES. App.] Neptune Steam Navigation Co. v. Sclater and Peooter; The Delano. [App. shipowner or bis agents. The case of The Jaederen (68 L. T, Rep. 266; 7 Asp. Mar. Law Gas. 260; (1892) P. 351), relied on by Mr. Greenwell for the defendants, is distinguishable. In that case the ship was " to be discharged as fast as she could deliver," and the judgment appeal's to have tm-ned upon those words. The ship was delayed, as in this case, by the crowded state of the quay, but she delivei%d as fast as she could under the circumstances. Bai'nes, J. said: "It i-ests upon the plaintiffs, when they assert that the vessel has been discharged as fast as she can deliver, to show that she has not been delivered as fast as she could deliver; in fact, that she could have been delivered under the circum-stanceb in which she was placed at a greater i-ate than in fact was the case." The defendants appealed. The appeal was heard on the 3rd -May 1894, before tne President (Sir F. H. Jeiune) and Bai'nes, J., sitting as a Divisional Court. Chitty (Newbolt with him, for the respondents, submitted a preliminary objection that there was no right of appeal. [Babnes, J.-This court has decided that there is a right of appeal. The point was i-aised in The Eden, 66 L. T. Rep. 387; 7 Asp. Mar. Law Cas. 174; (1892) P. 67.] The Cashmere, 62 L. T. Rop. 814; G Asp. Mar. Law Cas. 575; 15 P. Div. 121; Pole v. Bright, 65 L. T. Bep. 748; (1892) 1 Q. B. 603. The appeal was heard. Boyd, for the appellants, referred to the pi'ac-tice of the dock as to discharge. [Barnes, J.- I had a case before me from the Mersey in which the dock took entire charge.] That was The Jaederen (uhi sup.). The only point submitted is, that there are no fixed lay days; neither party is in default, and therefore the loss must remain where it is, with the plaintiffs. The County Court judge did not sufiSciently appreciate the difference between Bandall v. Lynch (ubi sup.) and cases where the custom of the...
To continue reading
Request your trial
-
Kelly and Hardy v The Isle of Man Steam Packet Company Ltd; The Tynwald
...T. Rep. 387 7 Asp. Mar. Law Cas. 174 (1892) P. 67 The HeroELR 65 L. T. Rep. 499 7 Asp. Mar. Law 81 (1891) P. 294 The DelanoDID=ASPM 7 Asp. Mar. Law Cas. 523 71 L. T. Rep. 544 Cox v. HakesELR 63 L. T. Rep. 392 15 App. Cas. 506 Green v. Lord PenzanceELR 45 L. T. Rep. at p. 357 16 App. Cas. at......
-
The Theodora
...Court save in so far as there is any special provision affecting the matter: The Delano, 71 L. T. Rep. 544: 7 Asp. Mar. Law Cas. 523; (1895) P. 40. Sect. 101 of the Act of 1888 is a reproduction of the County Courts Act 1846, and has to be read as one with the Admiralty Courts Act 1868. The......
-
The Alert
...raised a preliminary objection, that since the decision of the Court of Appeal in The Delano (71 L. T. Sep. 544; 7 Asp. Mar. Law Cas. 523; (1895) P. 40), there was no appeal, there being no point of law, and the original claim being under 50l.: The Eden, 66 L. T. Rep. 387; 7 Asp. Mar. Law C......