Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

. (page 35 of 101)
Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 35 of 101)
Font size
QR-code for this ebook


is loaded^ is detained by frost, or by any act of the shipowner ; /
but he is Hable for any detention for the purpose of loading, /
although the loading may liave been rendered impossible by the /
atate of the weather {d). Where the ship is to be unloaded in
the usual and customary time (and if no particular time is men*
tioiied this is the contract which the law implies), the freighter
JB not liable to pay for a detention caused merely by the crowded
state of the docks (e). Where, however, the freighters are bound
by the charter-party to load a cargo in the customary manner,
no time being mentioned, this means that they will load accord*
ing to the usage' of the port, and within a reasonable time, with-
out refeirence to unforeseen casualties ; and if the loading is
delayed beyond a reasonable time, the freighters are not excused I
by reason of the delay having arisen from difficulties over
which they have no control (/). And where the parties enter into A
a positive contract that the goods shall be taken out of the ship! j
within a certain number of days from her arrival, this contract y
must be construed strictly, and demurrage becomes payable for h

(^) Randall t. Lynch, 12 East, 179 ; 474.

Moorson v. Bell, 2 Camp. 616. The (d) Barrett ▼. Button, 4 Camp. ZSS \ ^=.

declaration must be specud if the claim Pringle v. MMett, 6 M. & W. 80 ; IW-

iifor damages for the subsequent de- nell v Thomas, 6 Bing. 188; and see

tendon. Horn v. Bentutan, 9 C. & P. ante, p. 214.

709. See as to demurrage when the (e) Rodger t y. Forrester*, 2 Camp«

delivery of the outward cargo is pre- 483 ; Burmester v. Hodgton, ib, 488.

Tented, and the ship returns with it to (/) Jdams v. The Royal Mail Steam

the port of loading, Christy v. Row, 1 Packet Company, 5 C. B., N. S. 492 ;

Taunt. 300. and see Harris t. Dreesman, 2S Law J^

(c) Jamieson v. Laurie, 6 Bro. Pari C. Excb. 210.



Digitized by



Google



266



CONTRACT OF AFFREIGHTMENT



Delajrs caused



&C.



any delay beyond the period fixed upon, which is not owing to
the default of the shipowner; even although it may be caused
by an accident or impediment over which the freighter has no
control; as, for instance, by the necessity for the removal of
cumbeT"" di superincumbent goods (^), bjjthe^iwvded^tat^^ docks (A),
or by custom house or government restraints or regulations («) ;
and this has been held to be so even although no notice of the
ship's arrival has been given to the consignees, or to the in-
dorsees of the bill of lading (A). For, although this rule may
appear to operate harshly as against the consignees, they might
have protected themselves by express stipulation. Where the
delay in unloading is occasioned by an improper interruption by
the shipowner, the above rule does not apply, since in such a
case the detention is the act of the owner and not of the
freighter ; but it is not every interference, for however short a
time, that vrill put an end to the obligation of the charterer (/).



Mode of com-
puting days.



It has been held, that in computing the number of lay days
Sundays are to be included, unless working days are expressly
mentioned, or there be any custom to the contrary (m). In one
case a jury was satisfied that such a custom existed in Lon-
don (n). The days of demurrage are to be reckoned, not from
the arrival in port, but from the arrival at the ordinary place of
discharge, according to the usage of the port(o). This does
not, however, mean the actual place of unloading, for the days
begin to run if the ship is in the dock where the discharge is to
take place, although, owing to the crowded state of the dock.



(g) Harmon ▼. Gandolpkif Holt,
N. P. C. 35 ; Leer v. Yates, 3 Taunt.
887 ; Taylor v. Clay, 9 Q. B. 718 ; and
Bee the Judgment of Parke, B., in Kell
V. Anderson, 10 M. & W. 502 ; and the
judgments in the Exchequer Chamber
in Ericksen v. Barkworth, 3 H. & N. 894.
See the same case in the Court below, ib,
601. It is apprehended that the rule laid
down in the text is the true one, and
that the cases cited above are correctly
decided, although Lord Tenterden, in
Dobson V. Droop, 4 C. & P. 112, ruled
differently. It appears to be in all
cases a question of construction of the
contract as appearing on the charter-

1>arty and bill of lading. Possibly in the
ast-mentioned case (as in Rogers v.
Hunter, 2 C. & P. 601), the word "de-
tention" may have been used; from



which it may have been inferred that
demurrage was to be payable only so
long as the ship was wilfully detained
by the freighter. The insertion of a few
words in the charter-party or biU of
lading would get rid of all difficulty in
this respect ^

(A) Randall v. Lynch, 2 Camp. 852. ^

(t) Blight v. Page, 3 B. & P. 295,
note (a) ; Bestey v. Evans, 4 Camp. 131 ;
Hill v. Idle, ib. 827.

{k) Harmon v. Clarke, 4 Camp. 159;
Harmon v. Mant, ib, 161.

(/) Benson v. Blunt, 1 Q. B. 870.

(w) Brown v. Johnson, 10 M. & W.
881.

(n) Cochran v. Retberg, 8 Esp. 121

(o) Brereton v. Cha " "*'

559; Kell v. Anderson^
498.



X



Ch^^man, 7 Birw.^
rson, 10 *M. & W»



Digitized by



Google



AND ITS INCIDENTS. 267

she cannot reach a berth for the purpose of being dis-
charged (p).

Where a ship was to sail with convoy, and demurrage was
to be paid for every day, beyond a certain number of days, that
Ae should " wait for convoy ;" this was construed to mean that
it was to be paid until the convoy was ready to sail, and not
that the freighter was to be discharged on the arrival of the con-
voy at the port where the ship lay {q).

It will be seen from t|iese cases that the liability depends
upon every occasion upon the terms of the particular con-
tracty and that few general rules can be laid down on this
subject

The contract to pay demurrage, which is contained in the Parties liable
charter-party, is made between the shipowners and the ^ P*^ ^^
freighters. But where, as is often the case, the bill of lading
mentions the demurrage, a consignee who accepts the goods
under it may, and generally does, become Uable for it on a new
contract, to be implied from his acceptance of the goods under
these circumstances (r).

The implied promise to pay demurrage arising from the
receipt of goods under a bill of lading, makii^ them deliverable
on the payment of demurrage, may even arise although the re-
ceiver of the goods states at the time that he does not intend to
payit(<). In a late case in the Common Pleas, it was held
that, where a cargo was received by an indorsee of a bill of
lading, which made the goods deliverable " against payment of
the agreed freight and other conditions, as per charter-party," the
jury might infer from these circumstances a contract to pay the
demurrage stipulated for by the charter-party {t). But it will
be observed that, in this case, the wording of the bill of lading
was pecuhar, and it also appeared that the demurrage had
accrued by reason of the delay of the indorsee of the bill of
lading himself, at the port of discharge. In a later case, where
tbe words of the bill of lading, under which the goods were re-
ceived, were " paying for the said goods as per charter-party,"

(rt Brotpn V. Johnson, 10 M. & W. (q) Launoy v. Werry, 4 Bro. Pari. C,

*31. The lay days do not, however, 680.

^^V^ to run where the ship having en- (r) Harmon v. GandotpM, Holt,

^ tercd a tidal harbour is prevented for N. P. C. 85 ; Harman v. Mani, 4 Camp*

"pnae time, by the ordinary course of the 164 ; and see ante, p. 258.
^cii from getting to the place of dis- (*) Wegener v. Smith, 15 C. B. 285|

Jjtfge; Porker v. W'mlow, 7 E. & B. Smith v. Sieveking, 4 £. & B. 945.
^2. (/) Wegener v. Smith, ubi ewpra*



Digitized by



Google



268



CONTRACT OF AFFRBIGHTMENT



the Exchequer Chamber distinctly recognized the rule, that the
indorsee of a bill of lading so framed does not, by receiving the
goods at their destination, make himself liable to pay for de-
murrage at the port of loading, according to the rate stipulated
in the charter-party; although there be, in the charter, an
express stipulation for a lien on the goods for such demur-
rage (m).

The master cannot sue for demurrage in his own name unless
it is maitioned in the bill of lading (x).



Stoppage in
transitu.



Stoppage in transitu is a subject which belongs properly to
the general mercantile law ; but as questions arising out of this
right often render it difficult for shipowners and masters to
ascertain to whom goods are to be deUvered, it is necessary to
notice shortly the principles by which this right is r^ulated.



Wherein right
consists.



Stoppage in transitu is the right of an unpaid vendor of goods
to stop them, on the bankruptcy or insolvency of the vendee,
before they have reached his actual or constructive possession ;
and to resume the possession, so as to put himself in the same
position as if he had not parted with it. The origin of the right
is doubtful (y) ; and the effect of its exercise on the contract of
sale is not clearly settled {z) ; but it rests obviously on a broad
principle of justice, and has consequently been recognized in
many of the foreign systems of law (a).

The veiy definition of this right implies that there must be
some intermediate agency between the vendor and the vendee ;
there must be a transit, — a passage of the goods from the one to



(u) Smiih V. Sieveking, 4 K. fi^ B. 946,
and 5 E. & B. 589.

(x) Brouncker v. Scott, 4 Taunt. 1 ;
Evan* V. FortUr, 1 B. & Ad. 118 ; Jes-
ton V. Sollyt 4 Taunt. 62, ante, p. 77,
and the cases cited above. See as to
where the indebitatus count may be
used, Cropion v. Pickernell, 16 M. & W.
829.

(y) See the judgment of Lord Abin-
ger, C. B., in Gibson v. Carruthers, 8 M.
& W. 821. The first case in which the
principle appears to have been acted
upon in our Courts, is JVueman v. Van^
deputy 2 Vem. 203.

(«) See Blojcam v. Sanders, 4 B. & C.
941 ; Clay v. Harruon, 10 B. & C. 99 ;
and the judgment of Parke, B., in Went-
worth V. Outhwaite, 10 M. & W. 436.
The better opinion is, that it does not



rescind the contract Ib,f and see the
notes to 1 Smith, L. C, <4th ed^) 642 —
660. This right arises properly only
in cases in which the consignee has be-
come bankrupt or insolvent; but a right
of a similar nature may exist in other
cases by contract. See fVilmhurtt v.
Bowker, 2 M. & Gr. 792 ; S. C. 7 M. &
Gr. 882 ; and the judgment in The Com-
«/aft<ia,6Rob. 321. This question is dis-
cussed in Smith's Merc. Law, (6th ed.,)
654, note (6), and the learned author
thinks that a general inability to pay,
evidenced by stoppage of payment, is
sufficient to satisfy the rule, although
there has been no actual insolvency.
See further as to this right Paley's P.
& A. c. 4, s. 6.

(a) See the judgment in Oibton y,
Carruthers, 8 M. & W. 321,



Digitized by



Google



AND ITS INCIDENTS.



269



the other,— and this conyeyance is generally effected by the
agency of a carrier.



The general rule is, that the transittis continues, and that Howlongr

transit c~
tinues.



consequently the right of stoppage exists until the goods arrive ^"'" *^""



at the actual or constructive possession of the vendee or con-
signee, as owner (A). In the earlier cases it was considered
that nothing but an actual delivery to the consignee would
defeat the exercise of the right ; but this doctrine has been long
abandoned (c) ; and now the question always is, have the goods
arrived at the actual destination originally contemplated by the
vendee, or have they, in the meantime, come to his actual or
constructive possession ?

The carrier being usually a mere agent for the passage of the General effect
goods, his possession is not in generd the constructive posses- ° cJjier7 *°
sion of the vendee ; at least, so far as to interfere with the right
of stoppage; even although the vendee may have specially
appointed him. And in ordinary cases the transit continues as
long as the goods are in the carrier's possession, not only in the
actual course of the journey or voyage, but even while they are
in a place of deposit connected with their transmission, such as
a warehouse (cQ. If, however, the vendee take them out of the
possession of the carrier before their arrival, whether with or
without his consent, there seems to be no doubt that the transit
is at an end ; although, in the absence of the carrier's consent,
be might have a right of action against the vendee for so doing.
So, there may be a constructive possession by *the vendee
although the goods are still in the carrier's hands, as where the
latter enters expressly, or by implication, into a new agreement,
distinct from the original contract for carriage, to hold the goods
for the consignee as his agent, not for the purpose of expediting
them to the place of original destination pursuant to that con-
tract, but in a new character, for the purpose of custody on his
account, and subject to some new order to be given to him (e).

(6) See the judgment of Tindal, C. J., Baldwen, 5 East, 175 ; Liti v. Cowley, 7

m Jaeksom ▼. Nichol, 5 N. C. 516 ; Taunt 169.

Heimekey v. Earle, 8 E. & B. 410; and {d) Mil/t v. Ball, 2 B. & P. 457;

the cases there cited. Hoist v. Pownal, 1 Esp. 240 ; Hodgson

(c) HuMter v. BeaU, cited 3 T. R. 466, v. Loy, 7 T. R. 440.

where Lord Mansfield used the expres- {e) See the judgment in Whitehead y.

sion ** the goods must haTe come to the Anderson, 9 M, Si W. 534; Tucker v.

corporal touch of the vendees.** But see Humphrey, 4 Bing. 516.
EUis V. Hunt, 3 T. R. 464 ; Dixon v.



Digitized by



Google



270 CONTRACT OF AFFHEIGHTMENT

A delivery to a carrier selected by the vendor may be sufficient
evidence of a delivery to support a count for goods sold and
delivered ; but it is not enough to satisfy the 1 7th section of
the Statute of Frauds (/).

Effect on right There are also other acts by which an actual or constructive
with thecimi^ possession may be taken by the vendee, although the goods
by the vendee, have not been delivered at their ultimate destination. Thus^
vi^here the vendee, having notice that the goods had arrived at
the carrier's vi^arehouse, removed part of them, and left the
residue after taking samples, requesting the carrier to allow
them to remain in the warehouse for his convenience until he
should send further directions, it was held that the transit was
determined, as the vendee had by his own act prevented the de-
livery {g). Where goods were sent by the direction of the vendee
to a place at which he did not reside, and when they reached it
they were left in a warehouse belonging to third parties, who
were wholly unconnected with the carrier, and who had been
previously in the habit of receiving goods for the vendee and
of holding them at his risk until he fetched them away or gave
farther orders, without charging him any warehouse rent, it was
held that the carrier's duty was complete, and that the goods
having been delivered to an agent of the vendee the transit viras
at an end (A). It appears also to be clear, that if the goods are
delivered at the warehouse of any wharfinger, packer, or other
middleman, which the vendee uses as his own, or even if they
are left at the warehouse of the vendor, which the vendee uses
as his own by paying a warehouse rent, the transit may be,
and ordinarily will be, determined (t). The mere fact, however,
that rent has been charged by the vendor will not affect the
question if the goods remain in his warehouse and under his
control (A).

Of acts of own- So, the exercise by the vendee of acts of dominion and owner-
vrildee^^"^ **y ship over the goods, such as taking samples under circumstances

(/) See Meredith v. Meigh, 2 E. & B. East, 175.

364; Coombs y. The Bristol and Exeter (•) See the judgment in &o« v. PcttI/,

Rdilway Company, 8 H. & N. 510 ; and 8 B. & P. 469, and Leeds t. Wright, ib,

see post, p. 272. 820 ; Richardson v. Ooss, ib, 119 ; Hurry

(g) Foster v. Frampton, 6 B. & C. v. Mangles, 1 Camp. 452 ; Rowe v, Pick-

107. ford, 8 Taunt 88; Jllen v. Gripper, 2

(A) Dodson ▼. Wentworth, 4 M & Gr. Or. & Jer. 218.

1081 ; see also Wentworth v. Outhwaite, (k) Miles v. Gorton, 2 Cr. & M. 504.
10 M. & W. 486 ; Dixon v. Baldwen, 5



Digitized by



Google



AND ITS INCIDENTS. 271

vhich show that it is done with the intention of taking posses-
sion of the whole, will determine the transit (/). Thus where
goods bought for exportation were sent to the vendee's shipping
agents to be forwarded abroad, and after they had been shipped
by them were relanded and sent back to the vendors to be
repacked, and the vendee became bankrupt whilst the goods
were in their possession for this purpose, it was held, that the
vendors had acquired no new right by this re-deUvery, and that
the transit had been determined by the delivery to the shipping
agents, or, at all events, by the exercise of the acts of ownership
by the vendee (m). Indeed, it may be stated as a general rule,
that whenever it appears that the carrier, or other agent in whose
possession the goods are, is not merely an agent for the passage
of the goods, and does not hold them for the purposes of the
transmission, and it is not intended necessarily that they should
ever come otherwise into the possession of the vendee than by
being in that of this agent, the transit is determined (n). '

And, on the other hand, the right to stop may still exist
although the vendee has taken possession of the goods, if it
appear that he did so, not as owners but in order to hold them
for the vendor (o).

A delivery to the vendee on board his own ship puts an end Of delivery on
to the right to stop, for this is a delivery of the goods at their ^^J^p"
destination (/>). Where the ship was chartered to the vendee for
three years, and employed by him to convey the goods, not to
himself, but abroad, on a speculation of his own, a delivery on
board was held to be a delivery to himself (y). But the mere

(/) Fotter T. Frampton, 6 B. & C. In Litt v. Cowley ^ 7 Taunt 169, it was

107 ; DLcoH v. Yates, 5 B. & Ad. 813 ; held that a delivery of the goods by the

Jones ▼. Jones, 8 M. & W. 431. It carrier to the vendee by mistake, after

would seem that where the goods are a notice from the vendor to stop them,

left in the carrier's possession, acts of did not deprive the vendor of his right

narking or of taking samples done by of stoppage. But it may be doubted

the vendee with the intention of taking whether this decision is consistent with

acoQstnictivei>o68ession,mu8t,inorder the general principles applied to cases

to be effectual, be accompanied with of stoppage in transitu, and whether the

sjch circumstances as denote that the true view was not that, as between the

carrier was intended to keep, and as- vendor and the vendee, the transit was

seated to keep the goods as an agent determined although the vendor might

for custody. See the judgment in have a remedy against the carrier. See

Whitehead v. Jnderson, 9 M. & W. 535. Coxe v. Harden, 4 East, 21 1, and Hein^~

(w) Falpy V. Gibson, 4 C. B. 837. key v. Earle, 8 E. & B. 410, and the

(■) Paley's P. & A. c 4, s. 5 ; and cases there cited,

see the judgment inVan Casteel v. Booker, {p) Ogle v. Atkinson, 6 Taunt. 759.

2 Ex. 691. Iq) Fotvltr v. M^Taagart, cited 1

(o) Jamts V. Griffin, 2 M. & W. 623. East, 522 \ S, C. Z East, 388.



Digitized by



Google



272



CONTRACT OF AFFREIGHTMENT

fact of the ship having been chartered by the vendee docs not
make her his own ship, so as to make a delivery on board that
ship necessarily a delivery to him (r). The goods must, however,
be delivered to be carried on behalf of the vendee, for if it appears
from the fact of the bill of lading making them deltverabte to
the order of the vendor, or otherwise, that it is the intention of
^e vendor to preserve his title to them until some further act is
done, this would, it seems, be a delivery to the master to carry
for the vendor, even although the ship might be that of the
vendee, and the right to stop would still exist Even, however,
where the bill of lading is so framed, it is a question for the
jury, looking at all the facts of the case, whether the delivery
was really on behalf of the vendor or on that of the vendee («)•
A., a planter residing in Jamaica, being indebted to B., a mer-
chant residing in London, in a larger amount than the value of
certain sugars, shipped them on board a ship belonging to B.,
which was in the habit of carrying supplies to Jamaica to the
estates of A. and of bringing back consignments from him and
others, and was then employed for this purpose. The master
signed and delivered to A. a bill of ladmg by which the goods
were to be delivered to B. in London, he paying freight; but
afterwards A. made an indorsement on the bill that the goods
were only to be delivered to B. if he gave security foi certain
payments, but otherwise that they were to be delivered to A/s
agent. A. then indorsed and delivered the bill to a third person,
to whom he was indebted in more than the value of the goods.
It was held, that A. had a right to change the destination of the
goods before the delivery of them, or of the bill of lading to B.,
and that the property in them had not passed to B. {t).

Where goods sold in London " free on board," to be paid for
on delivery on board by bill or cash at a certain discount, were
shipped on a vessel selected by the vendee, and the vendor
elected to take a bill, and it appeared that by the custom of the
port the expression ^' free on board" indicated that the vendee

(r) Boktlhgk V. InglU, S East, 381. In Ryder, 6 Taunt 423 ; Rnck ▼. Ha^/ieU,

the earlier cases it was holden otherwise. 5 B. & A. f(d2.
See hgiis t. Usherwood. 1 East, 513. (/) Mitchel v. Ede, 11 A. & E. 883.

(<) fVait V. Bakir, 2 Ex. 1 ; Van Com- This was not a case of ttoppagt m

teel V. Booker y ib, 691 ; Turner v. Trut- transitu. See also as to the eti'ectof the

teen qf Liverpool Dock Company, 6 Ex. delivery of goods to a earner, Meredith

£43 ; Ellershaw v. Magniac, ib, 570 ; v. Meigh, 2 E & B. 364 ; Coomb* v. The

Jenkyni v. Brown, 14 Q. B. 496 ; Browne Bristol and Eteter RaUway Company, 3

V. Hare, 3 H. & N. 484, and Brown v. H. & N. 510 ; Heinekey v. Earls, 8 B. &

North, 8 Ex. 1. See also Crat^ v. B. 410.



Digitized by



Google



AND ITS INCIDENTS. 273

was considered as the shipper, although the vendor was to pay
the expenses of shipment, it was held that the transit was de-
termined by the delivery on board and receipt of the bill(M).

There are also cases in which, although there is no transit, in Of sale of
the ordinary sense of the word, between the vendor and the ^^ehousl
vendee, yet questions of stoppage may arise. As where goods
are sold whilst in the possession of a warehouseman, wharfinger,
or other agent, who holds them for the vendor, and the transfer
of the possession is merely symbolical.

The general rule is, that if a delivery order is given by the
vendor to the vendee, and the agent who holds the goods assents
to it by transferring them in his books, or otherwise, (or even
it would seem, if he does not assent,) and no acts remain to be
done by the vendee which are essential to the completion of the
contract, such, for instance, as weighing, measuring, or separat-
ing the goods, so as to ascertain their quantity, value, or identity,
the right of stoppage is gone (v). The mere giving of a delivery
order does not operate as a constructive delivery of the goods (x) ;
and it is clear that the transfer of a delivery order has not the
peculiar operation of the indorsement of a bill of lading, so as to
pass the property in goods which are at sea, and not in the pos-
session of the agent on whom the order is made (y).

It must also be recollected, that the question as between the
vendee and the warehouseman or agent, in these cases, is not
always the same as that between the vendee and the vendor ;
for if the agent acknowledge to the vendee that he holds the
goods for him, he cannot afterwards set up the right of the
vendor to stop them (2:). Where, however, goods were sold at
Liverpool, and at the time of the sale they were in the ware-

(k) Cowatjee v. Tftompsont 5 Moo. lodges it, and cannot contest his title or

P.C. C. 165. See also Browne v. Harey claim a lien on the goods. See the judg-



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 35 of 101)