Van Liewen v Hollis Brothers & Company
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 1919 |
| Date | 12 December 1919 |
| Court | House of Lords |
Ship - Charterparty - Bill of Lading - Incorporation of Charterparty - Obligation to discharge with customary steamship Despatch but according to Custom of Port - Custom of Port of Hull - Demurrage.
A ship was chartered to load a wood cargo at a Swedish port for delivery at Hull, Victoria or Albert Dock as ordered, and by the charterparty the cargo was to be discharged with customary steamship despatch as fast as steamer can deliver but according to the custom of the port, and in the event of the detention of the ship beyond the time stipulated as above demurrage wac payable at a daily rate. By the custom of the port of Hull it was the duty of the receiver of a wood cargo to arrange for the steamship (on or before her arrival in dock) a vacant available and suitable berth to which she could forthwith proceed, and also to provide a clear quay space and/or a sufficient and continuous supply of bogies. Shortly before the arrival of the ship at Hull the cargo was consigned in three parcels to three firms of timber merchants at Hull by indorsement of the bills of lading, which incorporated the conditions of the charterparty. The ship was ordered by the charterer to the Victoria Dock without any communication with the receivers or any of them. Owing to the congestion of traffic at the dock the ship had to wait several days for a vacant berth and the receivers were unable to provide either a clear quay space or a sufficient and continuous supply of bogies, which were under the control of the dock owners, and as a consequence the ship took 11 days longer to discharge than she would have done if there had been continuous despatch. Upon a claim for demurrage by the shipowner against the receivers the trial Judge found that the detention of the ship was due to causes beyond the control of the receivers:—
Held, that under a charterparty in the above form the obligation wac to discharge with the utmost despatch practicable, excluding affection by circumstances not under the control of the charterer, and that the custom imposed no higher obligation on the receiver; and consequently that the claim failed.
APPEAL from an order of the Court of Appeal reversing an order of the Divisional Court, which set aside a judgment of the county court judge of Yorkshire.
The appellant was the owner of the Lizzie, a Swedish steamship, and he claimed from the respondents eleven days' demurrage for delay and detention of the ship upon her discharge in Hull of a cargo of timber from Sweden. The respondents were three firms of timber merchants at Hull and were assignees of the bills of lading for different parcels of the cargo, their aggregate holding representing the entire cargo. By a charterparty in the “Scanfin” form dated August 14, 1915, the Lizzie was chartered in Stockholm by a Swedish firm, the Bervigk and Ala Nya Aktiebolag, to proceed to a loading place in the Soderhamn district of Sweden and there load a full and complete cargo of timber as therein described and proceed therewith to Hull, Victoria or Alexandra Dock, as ordered on arrival, or as near thereto as she might safely get, and deliver the same, always afloat, on being paid freight as therein specified.
Clause 3, so far as material, provided as follows: “The cargo to be loaded and discharged with customary steamship despatch, as fast as the steamer can receive and deliver during the ordinary working hours of the respective ports but according to the custom of the respective ports, Sundays, general or local holidays (unless used) in both loading and discharging excepted. Should the steamer be detained beyond the time stipulated as above for loading or discharging demurrage shall be paid at twenty-five pounds per day and pro rata for any part thereof. The cargo to be brought to and taken from alongside the steamer at Charterers' risk and expense as customary.” By clause 6 the bills of lading were to be prepared on the form indorsed on the charter and were to be signed by the master, quality, condition and measure unknown, freight and all conditions, clauses and exceptions as per charter. By clause 10 the master was not to be obliged to sign more than one set of bills of lading unless due written notice should have been given before commencing to load. The cargo to be supplied so as to enable him to keep separate the different consignments. By clause 13 the master or owners were to have an absolute lien upon the cargo for all freight, dead freight, demurrage and average. The charterparty also contained a strikes and epidemics clause.
The Lizzie was loaded at Nyhamn with a full cargo consisting of 481 standards of timber under thirteen separate bills of lading issued by the master in the form indorsed upon the charterparty to the charterers. The bills of lading contained the following provision: “All the terms and exceptions contained in which charter are herewith incorporated.” Shortly before the arrival of the ship at Hull these bills of lading were assigned by indorsement as follows: Six to the respondents Hollis Brothers & Co. for 277 standards, five to the respondents Smith Brothers for 154 standards, and two to the respondents Smart and Elsom for 20 standards. The names of the consignees were communicated by the charterers to the ship's agents at Hull by telegram the day before the arrival of the ship in the Humber, and by the same telegram the charterers directed her to discharge at the Victoria Dock unless otherwise arranged by all the receivers. There was no communication by the shipowner or master or by the charterers with the respondents or any of them as to where the ship should be berthed.
The Lizzie arrived in the Humber on September 29, 1915, and anchored outside the Victoria Dock, but she could not be immediately admitted into the dock owing to congestion. On October 1 the dock superintendent ordered the ship into the Victoria Dock, but no berth could be assigned to her and in fact she was unable to begin to discharge her cargo until October 7 at 9 A.M., and did not complete her discharge until October 18 at 11.20 A.M. The Victoria Dock was the property of the North Eastern Railway Co., and the dock was equipped with bogie rails and bogies, which were also the property of the company. On October 2 the several respondents, being unable to obtain a clear quay space, gave orders for a supply of bogies, but owing to the congestion of the traffic the supply was insufficient for the proper and continuous discharge of the ship.
Under these circumstances the appellant brought an action against the respondents in the Hull County Court for 275l. for 11 days' demurrage. He alleged by his statement o claim that if there had been continuous despatch the ship would have been discharged by October 7 and that by the custom and practice of the port of Hull (which was incorporated into the charterparty) an absolute duty was imposed upon the respondents to provide either a clear quay space or a continuous supply of bogies upon the arrival of the ship.
The custom relied on by the appellant was embodied in a printed statement drawn up in 1899 by a committee of representatives of shipowners and timber merchants. It was intituled “A statement of custom and practice concerning the discharge of steamships laden with wood cargoes at the port of Kingston-upon-Hull,” and it contained the following clauses:—
“DISCHARGING BERTH. — It is the duty of the receiver of a wood cargo at Hull, where the dock is either named or unnamed in the charterparty, to provide or arrange for the steamship (on or before her arrival in dock) a vacant available and suitable berth to which she can forthwith proceed.”
“MODE OF DISCHARGE. — It is the duty of the owner of a steamer discharging a wood cargo as above mentioned to remove the cargo from the steamer and to place it upon the quay space opposite the steamer or upon carriages on rails (termed ‘bogies’) or to lower the cargo into open lighters supplied and brought alongside by the receivers, and to pay for the labour necessary to perform the above work. It is the duty of the receivers of such cargo to supply and have ready a clear quay space the full length of the steamer and/or a sufficient and continuous supply of...
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