Rickinson, Sons, & Company v Scottish Co-operative Wholesale Society
| Jurisdiction | Scotland |
| Judgment Date | 28 March 1918 |
| Docket Number | No. 52. |
| Date | 28 March 1918 |
| Court | Court of Session |
Lord Salvesen, Lord President, Lord Johnston, Lord Mackenzie, Lord Skerrington.
Ship—Affreightment—Demurrage—Cargo to be received ‘as fast as vessel can deliver,’‘any custom of the port to the contrary notwithstanding’—Delay caused by shortage of labour at the port—Liability of consignees.
A bill of lading for a cargo of grain provided ‘cargo to be received at destination as fast as vessel can deliver during ordinary working hours, any custom of the port to the contrary notwithstanding.’ when the vessel arrived at the port of delivery there were other vessels lying there discharging similar cargoes to the same consignees, and, owing to scarcity of labour, due mainly to the war, the consignees were unable to obtain extra men in sufficient numbers to enable them to receive the cargo as fast as the vessel could deliver it. In an action against them for demurrage in respect of the delay thus occasioned,—
Held (rev. judgment of Lord Salvesen, diss. Lord Johnston) that the consignees were not liable in demurrage in respect that their obligation under the bill of lading was not an absolute obligation to receive the cargo as fast as the vessel could deliver, but only an obligation to use all reasonable dispatch in receiving it by every method, customary or otherwise, which was practicable in the existing circumstances; and that, upon the facts established in the case, the defenders were not in breach of this obligation.
On 5th July 1916 Rickinson, Sons, & Company, the managing Owners of the steamship ‘Arachne,’ brought an action against the Scottish Co-operative Wholesale Society, Limited, concluding for payment of £2625. The circumstances out of which the action arose were narrated by Lord Salvesen in his opinion as follows:—
‘In this action the pursuers sue for payment of £2625 in name of demurrage, the claim being based on an alleged detention of their steamship “Arachne” at Leith. The action is directed against the defenders as holders of the bill of lading. The defenders were both the charterers and the holders of the bill of lading of the cargo of wheat which they loaded on board the “Arachne” at Montreal. As, however, there was a provision in the charter-party that it should be superseded on bills of lading being signed in the form and subject to the conditions stated therein, and as these conditions were admittedly complied with, the action is based solely on the contract contained in the bills of lading. The main provision with regard to discharge is in the following terms: “Cargo to be received at destination as fast as vessel can deliver during ordinary working hours, any custom of the port to the contrary notwithstanding. If longer detained at discharging port demurrage to be paid at the rate of one hundred and twenty-five pounds (£125) British sterling, per day, or pro rata, payable day by day.” There are, however, two further stipulations in the printed conditions, which, although they do not appear to be quite consistent, may also have some bearing on the obligation undertaken by the defenders as consignees of the cargo. One of them is embodied in article 3 of the printed conditions, and is that “the steamer may commence discharging immediately on arrival and discharge continuously at all such hours as the Custom House Authorities may give permission for the ship to work, any custom of the Port to the contrary notwithstanding, provided that all extra expense incurred in working at night or on Sundays or on holidays shall be borne by the party ordering such work.” But this seems to be qualified by a later clause that “receivers of this cargo are in no case obliged to take delivery at night without their consent.” As the defenders were neither asked nor consented to receive delivery at night or on Sundays or holidays, all that remains of these clauses seems to be the provision that the steamer might commence discharging immediately on arrival and discharge continuously during ordinary working hours—the reciprocal obligation of the consignees to take delivery on arrival and continuously thereafter being implied.
‘The “Arachne” arrived in Leith on the evening of Friday 26th November 1915, after office hours. She was berthed on the west side of the island in the Edinburgh Dock and opposite No. C shed, and, on the morning of the 27th, the defenders were advised that she was in dock and ready to be discharged at 9 o'clock. No work at all was done on the 27th, nor on the 29th and 30th, but a commencement was made by the defenders on the 1st of December, when 276 qrs. were discharged at 2 tackles. On the following three days 4 tackles were used in discharging. On the 6th no work was done owing to wet weather, and the same happened on the 10th and 11th. With these exceptions 8 tackles were worked on ordinary working days until the 24th of December, when the balance of the cargo was discharged from 4 tackles. The total amount of the cargo discharged was 26,588 qrs. Assuming that there had been no impediment to rapid discharge of the cargo, it would have been possible by the use of reasonable diligence to have discharged the vessel simultaneously with 20 tackles, the output of which is 250 qrs. per day for an average working day of 8 hours. 5000 qrs. could in such circumstances have been lifted from the ship's hold daily, and the vessel's discharge could have been completed in a little over 5 days or say 51/2 days. It is on this basis that the sum sued for is arrived at. In other words, the pursuers' maximum claim is the same as it would have been if it had been expressly stipulated that the cargo should be discharged in 51/2 days of 8 hours each or at the average rate of 5000 qrs. per working day.’
The foregoing circumstances were set forth by the pursuers in their condescendence. In answer 25 the defenders averred,—‘Explained that during the discharge of the “Arachne” there was, and had for some time previously been, a great shortage of labour at Leith owing to the war, and particularly of grain porters or labourers accustomed to handle grain cargoes. Further, on account of the war there was also a shortage of railway wagons and locomotives to shunt and haul what wagons were available. In addition to shortage of wagons, there was in the case of most receivers a shortage of carts and lorries and horses for the removal of goods, with the result that the dock sheds became congested, and it became impossible to discharge more than limited quantities of cargo into shed. All these difficulties were aggravated by an increase in the number of vessels using the port through other ports in the Forth being closed. Owing to the difficulty in obtaining labour and wagons, it was impossible for the discharge to proceed faster than it did. The defenders made every endeavour to procure more labour and wagons. By reason of the fact that the defenders possess a number of bulk wagons and carts, the discharge was able to proceed at a greater rate than would have been possible in the case of other receivers, and the “Arachne” did in fact receive better dispatch than a number of other vessels discharging grain cargoes at Leith at or about the same time. Any delay in the discharge was due entirely to circumstances existing on account of the war, and outwith the control of the defenders. Further, owing to the shortage of labour, it would not have been possible for the ship to work more tackles or to give delivery quicker than was actually done.’ The parties further averred:—(Cond. 26) ‘As already mentioned, no attempt was made by the defenders to take delivery of the cargo during the first three days of the discharge, and the “Arachne” was kept waiting with her stevedores and their men in attendance. The pursuers believe and aver that the defenders did not take delivery of cargo on these days because it was not convenient to them to do so. On these three days the defenders had other cargoes on board other vessels which were then discharging in Leith Docks. On Saturday, 27th November, their men were working 6 tackles on board the s.s. “Tafna,” and 4 tackles on board the s.s. “Hurona.” On 29th November they were working the same number of tackles on each of these vessels, and on 30th November they were working 6 tackles on board the “Tafna” and 8 tackles on board the “Hurona.” From the 1st to the 10th of December they took delivery from the “Tafna” by elevator of 5850 qrs.; and during the 1st, 2nd, and 3rd of December they were working 12, 6, and 4 tackles on the “Hurona.” In consequence of these other cargoes of the defenders, the disposal of the “Arachne's” cargo was impeded, and the “Arachne”suffered in consequence. The explanations in answer are denied.’ (Ans. 26)‘Denied. Explained that from 27th to 30th November it was impossible to get labourers to work at the “Arachne,” the only labourers available being those who were previously working at the “Tafna” and “Hurona.” From 2nd December till the discharge was completed, the defenders worked eight gangs at the “Arachne” continuously, except during the days above narrated, when work was impossible owing to wet weather, and of the labourers available a greater number worked on the “Arachne” than on other vessels.’ (Cond. 27) ‘Further, various complaints were made by the captain of the “Arachne” and the pursuers' superintendent, as well as by their stevedore and Messrs K. Cairns & Co., the ship's agents, to the defenders about their failure to man more tackles and to discharge the cargo into shed continuously in order to give the ship reasonable dispatch, but no notice was taken of these complaints. Notwithstanding that by the express terms of the contract of affreightment the custom of the port was excluded, the defenders insisted on taking delivery in accordance with that custom, which involved taking delivery on the ship's decks in merchants' bags after weighing, and...
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Alexander & Sons v Aktieselskabet Dampskibet Hansa
...3 Q. B. D. 223. 5 (1878) 3 Q. B. D. 227. 6 (1876) 1 Q. B. D. 244. 7 Rickinson, Sons, & Co. v. Scottish Co-operative Wholesale Society, 1918 S. C. 440, Lord Mackenzie, at p. 8 [1912] 1 K. B. 434. Carver's Carriage of Goods by Sea, (6th ed.) sec. 611, was also referred to. 1 Carver's Carriage......