Scottish Court of Session Decisions

This was an action by William Allan and others, owners of the steamship “Archdruid,” against William Johnstone, grain merchant in Glasgow, and consignee of the cargo of the “Archdruid,” for payment of £93, 3s. as demurrage for three days in discharging the ship at Glasgow at the rate of £31, 1s. per day.

By charter-party dated 20th October 1890 it was agreed that the “Archdruid” being in good condition should proceed to Kustendjie and “there load a full and complete cargo of wheat, seed, or grain … and being so loaded shall therewith proceed to a safe port in the United Kingdom … The cargo to be brought and taken from alongside the steamer at freighters' expense and risk … Eleven running-days, Sundays excepted, are to be allowed the said freighters (if the steamer be not sooner dispatched) for loading and unloading, and ten days on demurrage over and above the said lay-days at 6d. per ton on the steamer's gross register tonnage per running-day … The 1885 bill of lading to be used under this charter and its terms to be considered part thereof.”

The “Archdruid” arrived at Kustendjie on 30th November 1890, commenced loading on 1st December at 7·30 a.m., and finished at 11 a.m. on the 6th. She sailed that day and arrived at Glasgow at 1·30 p.m. on the 26th.

The bill of lading was dated 6th December 1890, and was in the following terms—“Mediterranean, Black Sea, and Baltic Grain Cargo Steamer. Bill of Lading 1885.

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Shipped in good order and condition … say twenty six-thousand, ten hectolitres barley, produce of Kustendje, dry and in good condition … all conditions as per charter-party dated in London the 20 th October 1890 … Five and a-half (5 1 2) laying-days remain for discharging the whole cargo.”

The bill of lading was a printed document with blanks and the words printed in italics were filled in by the master.

Messrs Dixon & Harrison, the shipbrokers in Glasgow for the “Archdruid,” on 26th December wrote to William Johnstone, the onerous indorsee of the bill of lading, in the following terms—“As advised, s.s. ‘Archdruid’ is now lying at foot of M'Alpine Street, where she will be ready to commence discharging at 6 a.m. tomorrow morning, and lay-days will commence then.”

Discharging commenced at 7 a.m. on the 27th December and was finished at 2 a.m. on Tuesday 6th January 1891, overtime being worked from 6 p.m. on the 5th to 2 a.m. on the 6th January 1891. Sundays were excluded by the charter-party, and Thursday 1st January was held as a holiday by mutual consent.

On 8th January 1891 Dixon & Harrison presented an account to William Johnstone for £72, 9s. for two days and eight hours' demurrage from 6 p.m. on Saturday 3rd January to 2 a.m. on Tuesday 6th January, and on refusal of payment the pursuers raised this action. William Allan and others, the owners of the “Archdruid” raised an action in the Sheriff Court of Lanarkshire at Glasgow against William Johnstone, concluding for payment of £93, 3s. for three days' demurrage.

They averred that eleven lay-days had been allowed by the charter-party for loading and unloading the ship, and that six of these had been occupied in loading at Kustendjie.

William Johnstone, the defender, averred that by the bill of lading he was entitled to five and a-half days for discharging the cargo, and that the additional detention in discharging was caused by the defective condition of the steamer's winches, which had frequently broken down, and to the irregular discharge given by the ship's stevedores. He, however, without prejudice to his pleas, tendered £50 in full settlement of the pursuers' claims.

On 26th March the Sheriff-Substitute ( Guthrie) allowed a proof, from which it appeared that the master had inserted five and a-half days in the bill of lading as the result of a compromise between him and the merchant who shipped the cargo, the master holding that six days had been occupied in loading and the merchant only five. It further appeared that the steam winches at the three hatches for discharging the vessel were old but in fair condition, that there had been some slight stoppages of the winch at No. 2 hatch, and that the winch at No. 3 hatch had broken down on Tuesday 30th December from 3·30 p.m. for the remainder of the day, and again on the 31st from 8·30 to 10·40a.m., and from 1 p.m. for the remainder of that day. It also appeared that the regular hours for work in winter were 7 a.m. to 5 p.m., and that there had been some irregularity of work owing to the New Year holidays.

On the 14th July 1891 the Sheriff-Substitute ( Guthrie) pronounced the following interlocutor—“Finds, for the reasons stated in the note, that the pursuers' steamship the ‘Archdruid’ finished discharging at Glasgow on Tuesday, January 5th, and that allowance being made for detention, due to the defective working of the ship's winches, the vessel is entitled to one day on demurrage over and above the lay-days allowed by the charter-party: Therefore decerns against the defenders for the sum of £31, 1s., with interest thereon as sued for: In respect that the defenders before action tendered the sum of £50 in full of the pursuers' claim, Finds the pursuers liable in expenses, &c.

“ Note.—The first question argued is whether the master of the ‘Archdruid’ had authority as such to fix the number of laydays occupied in loading at Kustendjie at five and a-half, thus leaving five and a-half lay-days for discharging the cargo under the charter-party. It is said that part-days do not count in the calculation of lay-days under such a charter-party, and that in breaking up a day into halves, the master was innovating on the contract made by his owners in the charter-party. I cannot help thinking this rather a captious contention. I do not think that it is a material alteration of the contract if it be an alteration at all. It is rather carrying out the contract in a reasonable way. There seems to have been some controversy at Kustendjie with the shippers of the cargo, and that controversy was probably settled by the master in a reasonable way for the benefit of his owners. In any view, the owners object to the arrangement only when they come into Court, and not when it is first brought to their knowledge.

If the consignees are entitled to five and a-half lay-days, then the ship having been ready to discharge on Saturday morning December 27th, and Sunday, under the charter-party, and January 1st by consent, being discounted, demurrage would properly begin to become due on Saturday January 3rd at noon. But it is conceded that a certain deduction ought to be made for stoppages in discharging at two of the holds in consequence of the winches breaking down. The pursuers allow, I think, six hours for this. I am of opinion that the winch at hatch No. 3 was defective, and that a larger allowance ought to be made for delay, due to the ship's want of winch power. This allowance may fairly be stated at a day and a-half, taking us on to Monday, and in this way, as the ship did not finish her discharge till Tuesday the 5th, one day's demurrage, taking into account the defender's hand-winch and overtime, appears to me to be due at the lowest computation. I therefore decern for one day's demurrage, and as the defenders tendered a larger sum than the pursuers recover, the

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is entitled to expenses.

There is much recrimination as to the manner in which the men employed by the ship, and the consignees respectively, did their work. I think the real evidence is at least as favourable to the defender as to the pursuer; but, perhaps, considering the season of the year and all the circumstances, it may be held, without much risk of injustice, that the pot and the kettle were, as they both maintain, just about equally black. I, at least, am not prepared to give either a preference.”

The pursuers appealed, and argued—The charter-party stipulated for days not hours, and therefore in reckoning lay-days halfdays counted as whole days— Hough and Others v. Athya & Son, May 27, 1879, 6 R. 961; Commercial Steamship Company v. Boulton, June 17, 1875, L.R., 10 Q.B. 346. Six days therefore fell to be reckoned as the time occupied in loading the ship, and only five remained for unloading. The master could not innovate on the owners' contract by allowing five and a-half— Holman v. Peruvian Nitrate Company, February 8, 1878, 5 R. 657. His statement was therefore either false in fact or a wrong inference in law. Further, the bill of lading specially incorporated the charter-party, and the defender as indorsee must be held cognisant of the terms of it. The lay-days for unloading therefore began at 12 p.m. on the 26th December and expired at 12 p.m. on 2nd January. Three days demurrage was accordingly due. Delay had no doubt been caused by the breakdown of the winch at No. 3 hatch. That was not however due to faulty construction, and the defender must bear the loss, as he had undertaken an absolute obligation and was bound to fulfil it unless the owners were personally in fault— Postlethwayte v. Freeland, May 7, 1880, L.R., 5 App. Cas. (H.L.) 599; Carver on Carriage at Sea, 611; Badgett & Company v. Binnington & Company, 1891, 1 Q.B. 35. Even if, however, some allowance must be made for the delay, six hours was ample, and these fell to be deducted from the period of demurrage. In any view, if the half day was to be allowed, and six hours were to be added to the lay-days, that would only extend the time to 6 p.m. on the 3rd January, and demurrage for a period of two days and eight hours down to 2 a.m. on the sixth was accordingly due.

Argued for the defender—The defender was here an onerous endorsee, and the bill of lading was his contract with the owners, and must be taken as it stood— Gardener v. Trechmann, December 16, 1884, L.R., 15 Q.B. 154: Mercantile Exchange Bank v. Gladstone and Others, June 1, 1868, L.R., 3 Exch. 233; Scrutton on Charter-Parties, &c., 42; Mitchell v. Scaife, 4 Camp. 298. Whatever effect it might have with the charterers, it could not now be gone behind, as when endorsed over it was no longer a receipt but a contract— Leduc v. Ward, February 11, 1888, L.R., 20 Q.B. 475. Further, the bill of lading was in the form specially referred to in the charter-party; and by giving the master a printed form with a blank clause in it, the owners had given him authority to fill it up— Holman v. Peruvian Nitrate Company, supra. There were therefore five and a-half days for discharging the ship. These must be reckoned as periods of twenty-four hours, and from 7 a.m. on December 27th when work began. The owner's letter of December 26th was conclusive against them on this point. The lay-days consequently expired at 7 p.m; on the 3rd January. To this fell to be added the period allowed for the breakdowns, which extended the time into Sunday 4th January. Sunday being excepted from the lay-days as a working day, demurrage accordingly began on Monday the 5th. There was therefore only one day's demurrage due, and the defender had tendered a sum in excess of that.

At advising—