‘Strathlorne’ Steamship Company v Baird & Sons
| Jurisdiction | Scotland |
| Judgment Date | 29 June 1915 |
| Docket Number | No. 108. |
| Date | 29 June 1915 |
| Court | Court of Session |
Lord Dewar, Lord Salvesen, Lord Guthrie, Lord Justice-Clerk.
Ship—Affreightment—Bill of lading—Charter-party—Condition in charter-party imported into bill of lading—Custom—Custom of port—Inconsistency with terms of bill of lading.
A steamer loaded a cargo of barley in sacks, at a North Pacific port, under a charter-party which stipulated for discharge at a ‘safe port or ports in the United Kingdom. … Vessel to discharge afloat with dispatch, according to the custom at port of discharge for steamers except as otherwise provided; cargo to be delivered at ship's tackles.’ The bills of lading acknowledged receipt of a certain number of sacks said to contain a certain weight of barley ‘to be delivered in the like good order and condition … Freight for the said goods payable as per endorsement on charter-party, with average accustomed general average, if any, and all other conditions and exceptions as per charter-party.’
The consignees, to whom the bills of lading had been endorsed, ordered the ship to Leith, and claimed to take delivery of the cargo there in the sacks as shipped. The shipowners maintained that they were entitled to deliver it according to the custom of the Port of Leith with regard to grain cargoes from North Pacific ports, whereby the cargo was bulked by the receivers' men in the hold, from which it was hoisted in tubs to the deck and poured into sacks of uniform size, the sacks being weighed on deck before being slung ashore. The consignees maintained that this custom was not binding on them, in respect that it was unknown to them, and further, that it was inconsistent with the terms of the bills of lading, which implied that delivery was to be made in the original sacks, and with the terms of the charter-party, which provided for delivery at the ship's tackles.
Held (rev. judgment of Lord Dewar) that the consignees were bound by the custom of the Port of Leith in respect (1) that the custom was imported into the bills of lading by the reference to the charter-party; (2) that, as it had been made an express term of the contract, it was immaterial whether it was known to the consignees or not; (3) that it overrode the implication in the bills of lading that the cargo was to be delivered in the original sacks; and (4) that it was not inconsistent with the provision that the cargo should be delivered at the ship's tackles.
Ship—Affreightment—Delivery of cargo—Custom—Custom of port—Custom limited to particular cargoes from particular ports.
A steamer loaded a cargo of barley in sacks, at a North Pacific port, under a charter-party which provided for discharge at a safe port or ports in the United Kingdom, ‘according to the custom at port of discharge for steamers.’ The steamer was ordered to discharge at the Port of Leith, where the consignees demanded delivery of the barley in the original sacks. The shipowners, however, claimed the right to discharge the cargo according to a custom which they alleged prevailed at that port with regard to cargoes of grain shipped on steamers from North Pacific ports, whereby the grain was bulked in the hold, from which it was hoisted in tubs to the deck and poured into sacks of a uniform size.
It was proved that, of more than sixty ships which had within the last twenty years arrived at Leith with grain cargoes from North Pacific ports, all but two (and those two sailing ships) had been discharged by the consignees bulking the cargo in the hold, and then, to suit the trade in this country, filling it into sacks of a larger size than those in which it was shipped from Pacific ports. In every case where this had been done the shipowners had formally protested against being held liable for the number of sacks shipped, but had not carried their protests further. It was also proved that grain cargoes arriving at Leith from India and Australia were always discharged in the original sacks.
Held (rev. judgment of Lord Dewar) that the alleged custom had been proved, and was binding on the consignees.
On 26th June 1913 the ‘Strathlorne’ Steamship Company, Limited, 54 George Square, Glasgow, brought an action against Hugh Baird & Sons, Limited, maltsters and grain merchants, 29 St Vincent Street, Glasgow, concluding for payment of (1) £289, 18s. 7d. as balance of freight due by the defenders as consignees of the cargo of the s.s. ‘Strathlorne’ (2) £186, 17s. 4d. as four days' demurrage of the vessel at the rate of 4d. per ton per diem; and (3) £43, 13s. 6d., being extra expense caused to the pursuers in discharging the cargo by a particular method insisted on by the defenders.
The pursuers averred:—(Cond. 2) ‘By Charter-Party dated 12th December 1912 entered into between the pursuers through Burrell & Sons, Shipowners, Glasgow, the pursuers' managers, and M. H. Houser of Portland, Oregon, U.S.A., through Heatley & Company of London, his agents, the “Strathlorne” was chartered on 12th December 1912 to load at Portland, Oregon, a complete cargo of wheat in sacks and/or barley in sacks and/or flour in sacks for discharge at a safe port or ports in the United Kingdom (Manchester
Ship Canal above bridges excluded) or on the Continent of Europe. the freight payable, should the whole cargo be discharged at one port in the United Kingdom (as was the case), was to be at the rate of 47s. 6d. per ton of 2240 lbs. English gross weight delivered.’ ( Cond. 4) ‘The Charter-Party further stipulated “vessel to discharge afloat with dispatch according to the custom at port of discharge for steamers.” The cargo was duly shipped and Bills of Lading for the cargo, incorporating the Charter-Party conditions and exceptions, were granted by the master to the charterer.* Four of these Bills of Lading were endorsed to the defenders. The vessel was ordered to Leith, and discharged her whole cargo there. The barley received by the defenders was 5241 tons, 4 cwt., 1 qr., 18 lbs., and the freight due thereon in terms of the Charter-Party is £12,447, 17s. 11d., to account of which the defenders have paid the sum of £12,157, 19s. 4d., leaving a balance due to the pursuers of £289, 18s. 7d., which is the sum first sued for. … It is believed that a number of bags, not exceeding 3000 or 4000, were opened at the port of loading, by slitting the twine at the mouth, and the barley emptied with the object of filling up nooks among the full bags. This is not bleeding. Apart from this a large quantity of loose was occasioned by frail bags bursting during loading, voyage,
and discharge, and through piercing of the bags by weighers for samples. Heavy weather was experienced during the voyage, and the straining of the vessel caused many of the frail bags to burst. The total quantity of loose grain thus occasioned was about 1400 tons.’ (Cond. 6) ‘According to the custom of the Port of Leith, in the case of all cargoes from North Pacific Ports, such bags are opened for the purpose of discharge of the cargo in the ship's holds, the grain is raised in buckets, weighed on deck, and there put into shore bags supplied by the consignees. The empty voyage bags are usually sold to bag merchants, who return them to Portland or other Pacific ports. There is a large trade in such return bags. In the present case the balance of the cargo, other than that delivered to the defenders, was delivered to the one other consignee according to the said custom of the port of Leith.’ (Cond. 7) ‘The defenders declined to take delivery of their barley according to the said custom of the Port of Leith, as provided in the Charter-Party, and insisted in getting delivery in the voyage bags, many of which were not strong enough to admit of handling and burst when the pressure of the slings was applied, at defenders' request, in lifting them. Many of the bags were old, patched, and second-hand bags. Because of the frailty of the bags, the defenders had to empty many of them in the holds and fill the barley so bulked into shore bags which they provided and which were then raised and weighed. As a result of the course followed by the defenders in breach of the conditions of the Charter-Party and Bills of Lading, the vessel was delayed and extra cost of discharge incurred.’
The defenders averred:—(Ans. 4) ‘Explained that the defenders were purchasers of the contents and were onerous endorsees of the said bills of lading, that by same the master acknowledged to have received in good order and condition from the shippers by one of the bills of lading 41,675 sacks of Dayton blue barley with the mark “T,” by another 13,483 sacks of similar description and of the same mark, by another 7545 sacks of Idaho white barley with the mark “Z,” and by the fourth 40,310 sacks also of Idaho white barley and with the mark “D,” which various parcels being marked and numbered as in the margin of the bills of lading were to be delivered in the like good order and condition at the port of discharge. The barley was of three distinct qualities and the bags had correspondingly three different marks on them, viz., “D,”“T,” and “Z.” At the port of discharge it was found, on the hatches being removed, that a large number of the sacks had been bled, and the pursuers claimed to bleed the whole remainder of defenders' goods, and refused to deliver to defenders the same in sacks, as the defenders were entitled to have the goods delivered. In these circumstances, without prejudice and under reservation of all rights and pleas, the defenders, to enable them to get delivery in sacks as required by them, incurred charges for bagging and otherwise for which pursuers were and are responsible.’ (Ans. 6 and 7) ‘There is no custom at the Port of Leith which entitled the pursuers in the circumstances to deliver the cargo other than in bags and to bleed the bags and discharge same in bulk. Explained that in any case such a custom if it existed was unknown to the defenders...
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‘Strathlorne’ Steamship Company v Baird & Sons
...on questions of fact, except where the decision has depended on the credibility of witnesses. (In the Court of Session, 29th June 1915—1915 S. C. 956.) The defenders appealed to the House of Lords The case was heard on 28th and 29th February 1916.1 Lord Chancellor.—In this case the appellan......