Ropner v Stoate Hosegood & Company
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1905 |
| Date | 03 February 1905 |
| Court | King's Bench Division |
King's Bench Division
Channell, J., Commercial Court
Ropner and Co. v. Stoate, Hosegood, and Co
Postlethwaite v. FreelandELR 5 App. Cas. 599
Sea Steamship Company v. Price, Walker, and Co.UNK 8 Com. Cas. 292
Hulthen v. StewartUNK 8 Com. Cas. 297
Hicks v. RaymondDID=ASPM 7 Asp. Mar. Law Cas. 233 (1893) A. C. 22
Bill of lading Charter-party Custom of port for steamers
32 MARITIME LAW CASES, K.B. DlV.] ROPNED AND Co. v. STOATE, HOSEGOOD. AND Co. [K.B, DIV. Jan. 24, 25, 26, and Feb. 3, 1905. (Before Channel, J., Commercial Court.) ROPNER AND CO. V. STOATE, HOSEGOOD, and Co. (a) Bill of lading - Charter-party - Custom of port for steamers - Discharge according to custom of port - Rate of discharge - unreasonableness of custom - Altered circumstances since origin of custom. A bill of lading (incorporating conditions of a charter -party) provided " Time for discharging at destination shall be according to the custom of the port for steamers at port of discharge, demurrage, if incurred, to be paid by consignees at the rate of fourpence sterling per gross register ton per day." An alleged custom was set up to the effect that the consignee could not be required to take delivery at a faster rate than about 500 tons per day at the port of Bristol for River Plate grain cargoes. , A vessel discharged a grain cargo, under the above bill of lading, at Avonmouth Dock, Bristol. 'The alleged custom, had been a matter of dispute for ' years. The facilities of discharge as regard ships and the three docks in the port of Bristol had increased since the origin of the alleged custom. The rate of discharge, in fact, was often in excess of 500 tons per day. Held, that no such custom now existed at Bristol for grain steamers generally or for River Plate grain steamers. The charter-party must be read as "custom, if any, at the port of discharge." Where a custom relates directly to the obligations of parties under certain circumstances, it mud, in order to be valid and to be binding on parties who do not know of the existence of the custom as a fact, be reasonable. The custom was inapplicable to the state of things at present existing, and there, was no such settled and established practice in the port as to satisfy the words of the charter-part" If the custom applied to the altered circumstances, it was unreasonable. Contracting out of a custom may become so general as to destroy the custom. When a custom becomes the exception and not the rule, there is no longer a custom. ACTION tried in the Commercial Court before Channell, J, sitting without a jury. Claim by the plaintiffs, the owners of the steamship Mountby, against the defendants, the endorsees of the bill of lading, for two days" demurrage of the steamship Mountby while discharging a grain cargo at Avonmouth Dock Bristol. The bill of lading incorporated the terms of a charter-party. The Uniform River Plata Charter-Party 1904, dated the 9th July 1904, provided that the vessel having loaded a " cargo of wheat, and (or) maize, and (or) linseed, and (or) rape-seed, in bags and (or) bulk " at " one or two safe loading ports or places in the River Parana . . . shall, with reasonable speed therewith, proceed to ... to discharge at a safe port in the United Kingdom or on the Continent between Bordeaux and Hamburg . . . and deliver the cargo, in accordance with the custom of the port for steamers, . . . the time for discharging at destination shall be according to the custom of the port for steamers at port of discharge; demurrage;, if incurred, to be paid by consignees at the rate of fourpence sterling per gross register ton per day." The discharge of the" steamship Mountby at Avonmouth, to which place she had been ordered, in fact, took eight days. The principal question to be decided was whether or no there was a binding custom of the port by which the plaintiffs were precluded from requiring the defendants to take delivery of the cargo at a greater rate than about 500 tons a day, at which rate the defendants were entitled to eight days to take it. The alleged custom had been a matter of dispute for years; the rata of discharge could have been increased; the facilities for discharge had considerably increased since the origin of the alleged custom. Scrutton, K.C. and Lech for the plaintiffs. - This charter-party requires the vessel to be discharged within a reasonable time; she was not discharged within a reasonable time. To determine what is a reasonable time the circumstances which exist when the port is reached must be looked at: Hick v. Raymond and Bead, 7 Asp. Mar. Law Cas. 223 ; 68 L, T. Rep. 175; (1893) A. C. 22. One cannot look at the customary dispatch year in year out; the circumstances when the particular ship arrived, the condition of the port, and the facilities of the ship and warehouses, &c, must be looked at to find out whether the particular ship was discharged within a reasonable time: Hulthen v. Stewart, 9 Asp. Mar. Law Cas. 285 ; (1903) 8 Com. Cas. 297. (a) Reported by Trevor Turton, Esq., Barrister-at-Law. MARITIME LAW CASES. 33 K.B. DlV.] ROPNER AND Co. v. STOATE, HOSEGOOD, AND Co. [K.B. DlV. Applying that principle, the steamship Mountby, on the evidence, could have been discharged at a faster race than that actually done. The time occupied was not reasonable. The case of Rodgers v. Forresters (2 Camp. 483) deals with the mode, not time, of discharge. A custom to be a good custom must be notorious, uniform, certain, and reasonable: Nelson v. DAhl, 4 Asp. Mar. Law Cas. 392 ; 41 L. T. Rep. 365 ; 12 Ch. Div. 568 ; 6 App. Cas. 38 ; Postlethavaite v. Freeland, 4 Asp. Mar. Law Cm. 302; 42 L. T. Rep. 845 ; 5 App. Cas. 599. As to unreasonableness, the last sentence in Sea Steamship Company v. Price, Walker, and Co. (1903, 8 Com. Cas. 292) is in point. Stewart v. Want India Pacific Steamship Company (27 L. T. Rep. 820; 1 Asp. Mar. Law Cas. 528; L. Rep. 8 Q. B. 88, and at p. 362) is not in point; that case refers to particular state of things in that case, and a particular and certain custom was expressly made part of the contract. Here the only reference to a custom must be taken to be "custom if any." The custom in fact is not notorious, it was always a matter of dispute, it is not uniform; it is not reasonable, since it applies to Avonmouth, Portis-head and Bristol Docks, at which places the facilities for Discharge are different. A custom once reasonable can cease to be reasonable if circumstances alter. A custom to be...
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