Scottish Court of Session Decisions

This was an action brought by Komman-ditbolaget J Fenger Krog & Company, merchants, Gottenburg, Sweden, against Burns & Lindemann, coal and coke exporters, 104 West George Street, Glasgow, for demurrage or damages for the detention of the steamship “Avis” at Methil.

Krog & Company held the “Avis” on a time charter, and by charter-party dated July 18th 1902 it was agreed between them and Burns & Lindemann that the “Avis,” then trading, and expected to be ready for loading about the 27th or 28th July, should with all convenient speed proceed to Methil Dock or Burntisland Dock as ordered before leaving last port of discharge, “and there load as customary at a crane-loading berth or berths, in one or more lots as ordered by charterers' agent, a full and complete cargo of coals from such colliery or collieries as charterers may elect.”

The charter-party further stipulated, inter alia, as follows:—“Steamer to be loaded in 72 running hours, commencing to count when ready to receive cargo, reported at Custom-House, berthed, and written notice given to charterers or their agents within office hours (say between 9 a.m. and 5 p.m.), but time not to count between 2 p.m. on Saturdays and 6 a.m. on Mondays, unless used… . If longer detained demurrage to be paid at the rate of 12 shillings and sixpence for every hour employed beyond the time allowed for loading and discharging, unless such delay is caused by general and colliery holidays, colliery pay days, idle days, strikes of any description, lock-outs, idle time, or restriction of output at the colliery or collieries with which the steamer is booked to load, frosts, storms, floods, detention on or by railway or cranes, accidents to machinery, or any other cause beyond the control of charterers, whether specified herein or not, which may prevent the obtaining or providing of cargo, or impede the ordinary loading and discharging of the vessel. No time at loading port to count while discharging or bunkering, and no bunker coal to be shipped in any of the holds without the consent of charterers.” …

The “Avis” arrived in Methil Roads, to which port she had been ordered by the defenders, on Monday, July 28th, at 12 15 a.m., and was docked about 6 a.m., whereupon the master gave notice in writing to the defenders' agent that she had arrived and was ready to receive cargo. She completed her loading at 9 p.m. on August 5th, and sailed on the following morning.

The pursuers averred that at the time of the ship's arrival in Methil Dock a crane-loading berth was available there for her loading, but that the defenders failed to provide and load a cargo in terms of their obligations under the charter-party, in consequence of which she was unduly detained beyond the time allowed for loading; that the seventy-two hours allowed for loading expired at 9 a.m. on Thursday, 31st July; that she was then on demurrage from that time till 9 p.m. of Tuesday, August 5th, a period—deducting five hours for bunkering in terms of the charter-party—of 127 hours, and that the defenders, being responsible for this detention, had incurred demurrage at the rate of 12s. 6d. per ho ur, amounting to £79, 9s. (6d.

The defenders averred that when the vessel arrived in the dock there was no crane-loading berth vacant for her, and she was not an arrived ship until she had got into a berth. There was no available berth till Wednesday, 30th July, at 12.30 p.m. At that date the miners at the Bowhill Colliery, with which the “Avis” was booked to load, were on holiday, and had been for some time prior to said date, and the defenders, owing to said holidays and to idle time, restriction of output at said colliery, and other causes beyond their control, were unable to get delivery of their coal and provide a cargo for the “Avis;” that these causes of delay were exceptions within the charter-party; that there was no berth vacant for the “Avis” after the miners resumed work until 5 a.m. on Monday, the 4th of August, when she got into berth, and from which time her seventy-two hours for loading began to count; and that the loading was duly proceeded with thereafter, and was completed at 9 p.m. on Tuesday the 5th August, having thus occupied forty hours.

The pursuers pleaded—“(1) The said vessel having been detained on demurrage through the failure of the defenders to provide and load a cargo in terms of the charter-party condescended on, or otherwise through the fault of the defenders, the pursuers are entitled to decree therefor at the agreed-on rate.”

The defenders pleaded—“(1) The said vessel not having been detained through the failure of the defenders to provide and load a cargo in terms of the charter-party' condescended on, or through the fault of the defenders, they should be assoilzied. (2) The said vessel having been detained through causes excepted in the charter-party, the defenders should be assoilzied with expenses.”

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Proof was allowed and led. The following narrative of the facts proved is taken from the opinion of the Lord Ordinary ( Stormonth Darling)—“Methil is almost entirely a coal port, and the work of loading goes on almost continuously from midnight on Sunday to midnight of the following Saturday. When the ‘Avis’ got into dock ten vessels were already lying there, and according to the custom of the port, were entitled to be berthed before her, but this practice as to ‘turn’ applies only if the cargo of a particular vessel or a substantial proportion of it (generally about one-fourth) is ready for shipment. The ‘Avis’ did not get a berth till Sunday, 3rd August, at 10·30 a.m., but she was ordered out at 11 a.m. on the 4th for want of cargo. She went in again at 1 a.m. on Tuesday the 5th, and after another short expulsion finished loading at 9 p.m. on the 5th, and sailed early the following morning. With regard to cargo, the defenders had two contracts for the supply of shipping coal with the Bowhill Coal Company, whose colliery is situated within two or three hours of Methil by rail. On 18th July they had intimated to the colliery that the ‘Avis’ would be ready on the 28th or 29th for 1300 tons, but the Coal Company had replied that they could not book any steam coal for these dates as their pits would not be working. The defenders then wrote on the 21st—‘It will be impossible for us to change ‘Avis,’ as the boat is definitely fixed. She must just therefore take her turn with the rest, and we must kindly ask you to prepare a full cargo for her.’ They repeated this request on the 25th, and the books of the colliery show that the ‘Avis’ was entered on the 26th for 1350 tons. No coal was actually sent down from Bowhill to Methil after the pits re-opened till Monday, 4th August, but twenty-two waggons of coal raised before the holidays had been lying for the ‘Avis’ on the wharf at Methil on the 28th, and 13 waggons were forwarded for her early on the 29th out of a lot of some 450 tons which had been procured from another colliery to supplement the Bowhill order. This delay arose first from the miners' holidays having ended only on the night of 28th July, then from the 29th having been practically an idle day, with an output so restricted in amount that it was not entered separately in the books of the colliery, but was simply lumped with the output of the 30th, and, latterly, from there being two ships at Burntisland which had arrived there on 27th July, and which the Coal Company therefore thought they were bound to load before the ‘Avis.’”

It was proved further that after the arrival of the “Avis” on the morning of July 28 there was a vacancy at No. 5 berth at 5 a.m. on July 29, which vacancy was got by the “Christian,” which ship was not in turn before the “Avis.” The “Christian” got this vacancy before the “Avis,” because there were coals down for the “Christian,” but the quantity of coals down for the “Avis” was not sufficient under the practice of the dock to entitle her to a berth. No. 5 berth was not a suitable one for the “Avis,” and she could not have finished her loading there. No. 1 berth was occupied by the “Louis Krohn” from 1·30 p.m. on July 29 until 11·40 a.m. on July 30. The evidence of the harbourmaster at Methil was to the effect that No. 1 berth was vacant from 11·40 a.m. until 2·25 p.m., when the “Rabenstein” was berthed. If the “Avis” had had sufficient coal down for her at 11·40 a.m. upon the 30th of July she would have got in there. The “Rabenstein” which got that berth had arrived at 7·30 p.m. on the 28th of July, later than the “Avis,” and was in turn after her. The “Rabenstein” was not a regular steamer entitled to a preference. The “Rabenstein” got that berth out of turn because she had cargo down for her. The “Avis” would have got in at 11·40 a.m. if she had had cargo there for her.

On February 18, 1903, the Lord Ordinary ( Stormonth Darling) pronounced an interlocutor decerning against the defenders for the sum of £26, 14s. 5d., with interest, in full of the conclusions of the summons, and found the pursuers entitled to expenses.

Opinion.—[ After narrating the leading stipulations of the charter-party and the material facts]—“Now, the question whether, and if so what, demurrage is due depends upon the time when the lay-days must be held to have begun. According to the charter-party, the 72 running hours do not commence to count till the ship is ready to receive cargo, reported at Custom House, and berthed, with notice to the charterers or their agents. She was not actually berthed till the morning of 3rd August. But all the other conditions were fulfilled long before that date, and the delay in berthing was caused solely by her cargo not being ready. In cases where the delay arises from the crowded state of the port, or from any circumstance connected with the particular berth selected by the charterer, it may seem rather hard on the shipowner that the loss of time should fall on him although he is in no way responsible for it. Still, the tendency of decision, from Tapscott v. Balfour (L.R. 8 C.P. 46) downwards, has been to hold that if the selection of the place of loading is left to the charterer it is the same as if it were named in the charter, and that the lay-days cannot be counted till the vessel is an arrived and intimated ship. This rule, however, by no means relieves the charterer under a contract in terms like, the present from the duty of doing any act that is necessary on his part, according to the custom of the port, to enable the vessel to get a berth. That was fully recognised by the House of Lords in the case of Little v. Stevenson & Co. (1896), App. Ca. 108. And the only qualification of that duty which the House recognised was that the charterer was not bound to have cargo ready in anticipation of a remote and improbable contingency.

“In this case it seems to me that the charter-party itself provides a sufficient excuse for a portion of the delay which occurred, but not for anything like the

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whole of it. The day on which the vessel arrived (the 28th) was a ‘colliery holiday,’ and that is one of the stipulated excuses for delay. On the 29th a very small number of miners were at work, and although this fact might hardly make it an ‘idle day’ in the sense of the contract, the quantity of coal raised was so insignificant as fairly in my opinion to bring the case within the clause as to ‘restriction of output.’ But after the 29th the output became reasonably normal, and if the colliery had sent its supply of shipping coal to Methil instead of Burntisland on the Wednesday, Thursday, and Friday (in addition to the 35 waggons which were already lying on the wharf), it is plain that the loading might easily have been completed within the lay-days, counting them as beginning on the 30th. Mr Ure argued that because the charterers had the selection of the colliery the shipowner must take the risk of anything which prevented the colliery from supplying cargo, as being a cause beyond the control of the charterers. That argument, however, seems to me to prove a great deal too much, for it would excuse any delay on the part of the colliery, however unreasonable. Unless the delay can be brought within one of the specified causes the charterers must, I think, be held responsible for the acts or omissions of the colliery. In this particular instance they knew that there would be a difficulty in providing cargo, and they took the risk of it with their eyes open. On the other hand, I cannot doubt that by the express words of the contract the excuses therein specified apply just as much to delay in obtaining a cargo as to delay during the period of actual loading.

The question then comes to be at what hour on the 30th could the ship have obtained a berth according to the custom of the port if cargo had been ready with which to begin the loading and there had been a reasonable prospect of the loading being steadily proceeded with? I answer that question by taking the hour of noon, at which time, according to the evidence of the harbourmaster, she might have got the berth which was left vacant by the ‘Louis Krohn,’ and which remained vacant for two-and-a-half hours. I reject the suggestion that she ought to have been enabled to take the berth which the ‘Christian’ got at 5 a.m. on the 29th, because it would have done her no good if she had got it. She would merely have loaded the coal in the 35 waggons lying on the wharf, and then she would have been turned out until a further supply was possible on the 30th.

My calculation therefore is this—The lay-days ought to have commenced at noon on Wednesday the 30th, and to have finished at noon on Saturday 2nd August. That leaves for demurrage twelve hours on Saturday, twenty-four hours on Monday, twenty-one hours on Tuesday (up to 9 p.m.), in all fifty-seven hours, from which must be deducted five hours as the time admittedly occupied in bunkering, leaving fifty-two hours at 12s. 6d., or £32, 10s. But from this again there is the further deduction to be made of £5, 15s. 7d., admitted in condescendence 5, leaving the sum of £26, 14s. 5d. as the sum for which decree will be given.”

The defenders reclaimed, and argued—Under the charter-party the seventy-two running hours did not begin to count till the ship was, inter alia, “berthed.” “Berthed” meant brought alongside the quay ready for loading. Until that time the “Avis” was not an arrived ship, and the lay-days could not be reckoned prior to that time The “Avis” found a series of ships waiting to be loaded in turn. In these circumstances the defenders were not bound to have a cargo down so as to be ready to seize a “snap chance,” arising out of the unexpected contingency of a berth being open to her out of her regular turn— Little v. Stevenson & Company, June 26, 1895, 22 R. 796, 32 S.L.R. 575, March 19, 1896, 23 R. (H.L.) 12, 33 S.L.R. 514. The obligation on the part of the defenders was simply to use all reasonable means, according to the custom of the port, to enable the vessel to get a berth, and it was unreasonable to hold the defenders bound to have waggons standing ready with coal to meet the quite unexpected chance of the failure of a ship in front of them. The delay after a berth became available was due to causes covered by the exception clause in the charter. That clause covered colliery holidays, idle days, restriction of output at the colliery with which the steamer was booked to load, or any other cause beyond the control of the charterers, &c. July 28 was a holiday at the Bowhill colliery, and that day fell within idle time. Little or no coal was raised on July 29. Even on July 30 there was “restriction of output,” and these causes, all of them within the exception, explained the delay. The defenders had the selection of the colliery, and therefore the pursuers had to take the risk of anything which prevented the selected colliery from supplying cargo or the Railway Company delivering it at the quay. Wyllie v. Harrison & Company, October 29, 1885, 13 R. 92, 23 S.L.R. 52; Letricheux & David v. Dunlop & Company, December 1, 1891, 19 R. 209, 29 S.L.R. 182. The custom of the port and all hindrances beyond the defenders' control must be regarded in determining whether there was unreasonable delay— Gardiner v. Macfarlane, M'Crindle & Company, February 24, 1893, 20 R. 414, 30 S.L.R. 541.

Argued for the pursuers and respondents—The “Avis” could have got the vacant berth which was got by the “Christian” on July 29, and also the vacant berth left by the “Louis Krohn” on July 30. The sole reason why she did not get these berths was that the defenders did not have coal down. These were not “snap chances;” they were such opportunities as reasonable men might have expected to be available. In Little v. Stevenson ( supra) Lord Herschell expressly laid it down that a charterer is bound to do everything reasonable to get the ship berthed and have a cargo ready to enable her to obtain a berthing. The question as to taking chance vacancies was a question of what was reasonable in the circumstances— Lilly & Company v. Stevenson & Company,

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January 19, 1895, 22 R. 278, 32 S.L.R. 212; Machan v. Mackie, Keith & Company, February 25, 1900, 7 S.L.T. 397. There was no difficulty or hindrance on the part of the railway. The real reason for the delay was that the coal was not ready, and the reason for this was that the Bowhill colliery was fully booked up when the defenders sent their order. The defenders had notice of this, and in spite of this notice they chartered the “Avis,” not knowing when they could get a cargo for her. It was an instance of what was known in the trade as “reckless chartering.” The defenders had simply put the ship at the convenience of the colliery. The general words at the end of the exception clause in the charter could only cover causes conducing to the failure of the charterers' obligations under the charter, and the obligation to provide a cargo was not a charter obligation ( per Lord Trayner in Gardiner v. Macfarlane, M'Crindle & Company ( supra), at p. 426. It was the duty of the charterer to have his cargo ready to load when the chartered ship arrived— per Lord Trayner in Stephens, Mawson, & Goss v. M'Leod & Company, October 29, 1891, 19 R. 38, at p. 45, 29 S.L.R. at p. 35.