Scottish Court of Session Decisions

The Leith Harbour and Docks Act 1892 (55 and 56 Vict. c. clxxvii), sec. 58, inter alia, enacts—“… It shall be lawful for the Commissioners, and they are hereby authorised, to demand, levy, collect, and receive from the owners, proprietors, or consignees of all goods, merchandise, wares, or commodities whatsoever, which shall be imported into or exported from the harbour and docks…of Leith … in any ship, vessel, bark, boat, lighter, or otherwise, the rates specified in Schedule (A) to this Act; from the owners of every ship, vessel, bark, boat, or lighter coming into or going out of the harbour and docks or precincts of the port aforesaid, or the agents or managers of such owners, the rates on vessels specified in Schedule (B) to this Act, both subject

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to and in conformity with the regulations applicable to such Schedules (A) and (B) contained in Schedule (C) to this Act. …”

Schedule (B), Branch I, “Rates on Vessels,” provides a charge “Per register ton per inward voyage in each year between Whitsunday and Whitsunday;” and for all vessels “from Norway, Sweden, Denmark, Holstein, Hamburg, Bremen, Holland, and Flanders that is within the Baltic, and no further south than Dunkirk” the charge is 5d. “first eight voyages in year per ton.”

Schedule (C), inter alia, contains the following regulation (No. 4):—“All vessels entering the harbour and docks (including Newhaven) only for safety, convenience, or repairs, shall be charged half rates, but if they shall land or take on board goods, or remain in the harbour or docks above one month they shall be charged full rates. …”

Aktieselskabet “Lina” of Christiania, Norway, registered owners of the steamship “Lina,” and Oluf Martin Mohn, her managing owner, brought an action in the Sheriff Court at Edinburgh against George V. Turnbull & Company, merchants, Leith, the charterers of the said steamship, in which they sought to recover (1) £6, 19s. 7d., and (2), £23, 15s. 8d., two sums which had been deducted by the defenders when paying her hire.

The charter-party of the said steamship, inter alia, provided — “That the former party agree to let, and the latter agree to hire, the said steamship or vessel for the term of six calendar months, commencing from the 5/10 th day of May 1905, at which date she is to be placed with clear holds at the disposal of the charterers at Leith … she being then tight, staunch, and strong, and every way fitted for the service, and being maintained by owners with a full complement of officers, seamen, engineers, and firemen necessary for a steamer of her tonnage and class, to be employed in such lawful trades between such ports in the United Kingdom or on the Continent including White Sea and both coasts of Mediterranean Sea — regular Hamburg coal trade excluded—as charterers or their agents shall direct, on the following conditions:—1. That the owners shall provide and pay for all provisions and wages of the captain, officers, engineers, firemen, and crew; and shall pay for the insurance on the vessel, and for all necessary stores, including fresh water required for the engine-room, and provide and pay for the necessary equipment for the proper and efficient working of the said steamer, maintaining her in a thoroughly efficient state for and during the service. Owners to pay Norwegian Consular expenses. 2. That the charterers shall provide and pay for all the coals, fuel, port charges, pilotages, agencies, and all other charges and expenses whatsoever except those before stated. 3…. 4. That the charterers shall pay for the use and hire of the said vessel at the rate of £295 Br. Stg. less 2 1 2 per cent. address comm. per calendar month, commencing on and from the day of her delivery as aforesaid, and at and after the same rate for any part of a month, hire to continue from the time specified for commencing the charter until her re-delivery to owners (unless lost) in the same good order and condition as when accepted (fair wear and tear only excepted) at a port in the United Kingdom or Continent between Hamburg and Bordeaux inclusive. 5…. 12. That in the event of the loss of time from a deficiency of men or stores, breakdown of machinery, or damage preventing the working of the vessel for more than twenty-four running hours, the payment of hire shall cease from the time the breakdown, &c., occurred until she be again in an efficient state to resume her service, but should the vessel be driven into port or to anchorage by stress of weather or from any accident to the cargo, such detention or loss of time shall be at the charterers' risk and expense. 13. The Act of God, the King's enemies, fire, restraints of princes and rulers, and all and every other dangers and accidents of the seas, rivers, navigation, and machinery, of whatever nature and kind soever, always mutually excepted…”

The facts of the case are given in the findings in fact (accepted by parties as correct) contained in the following interlocutor pronounced by the Sheriff-Substitute ( Henderson) on 30th November 1905—“ Finds in fact—(1) that by time charter, dated 28th April 1905, the defenders hired from the pursuers the steamship ‘Lina’ for a period of six months, commencing between 5th and 10th May 1905, the hire to be paid half-monthly in advance; (2) that the charter-party provided that at the date of delivery the vessel was ‘to be placed with clear holds at the disposal of the charterers at Leith in such dock, or wharf, or place … ‘as the charterers may direct;’ (3) that on 8th May 1905 the ‘Lina’ was taken delivery of by the charterers at Leith; (4) that the vessel had arrived in Leith in ballast from Kallundborg, in Holland, and had entered the harbour and port of Leith in that state for delivery to the charterers; (5) that on 15th May the charterers sent the pursuers a statement as to the half-month's hire, made up as at 12th May, in which they deducted from the hire payable £13, 19s. 2d., being the sum of 5d. per ton which they had paid to the Leith Dock Commissioners as the rates due under the ‘Leith Harbour and Docks Act 1892, Schedule (B), Branch I., Rates on Vessels,’ according to which vessels from Holland which entered Leith were so chargeable; (6) that thereafter, on 8th June, the charterers, when rendering their statement with regard to the half-month's hire then due, deducted £23, 15s. 8d. sterling, being, as they stated, two and a half days' hire for the time when the vessel was detained in quarantine at a port in Spain; (7) that the pursuers as owners and hirers out of the vessel objected at the time to each of the deductions above claimed by the charterers, and that they have now raised the present action to recover ( a) one-half of the 5d. per ton paid as dock dues on the ‘Lina,’ and ( b) the whole of

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the amount deducted while the vessel was in quarantine: In these circumstances, Finds in law—(1) that the pursuers have failed to establish that, upon a true construction of the charter-party and of the Leith Harbour and Docks Act 1892, they are entitled to repayment of one-half of the tonnage rate paid upon their vessel by the charterers, and assoilzies the defenders from said claim accordingly; but (2) that they are, under the conditions of their contract with the charterers (defenders), entitled to repayment of the sum improperly deducted in name of detention during quarantine: Therefore grants decree against the defenders for the sum of £23, 15s. 8d. sterling in terms of the conclusions of the petition: Finds the pursuers entitled to expenses: …”

On an appeal by the defenders the Sheriff ( Maconochie), on December 21, 1905, pronounced an interlocutor in which he recalled his Substitute's first finding in law, giving the pursuers decree for the sum of £6, 19s. 7d., and quoad ultra affirmed his Substitute's interlocutor, the defenders to pay the expenses of the appeal.

The defenders appealed, and argued—(1) The defenders were justified in deducting the sum first sued for, £6, 19s. 7d. Under the provisions of Schedule B (Branch I), by which the rates chargeable were enacted and governed, the rate payable by all vessels coming from Holland to Leith was 5d. per ton for the first eight voyages in each year. Accordingly the rate payable by the ‘Lina,’ unless she could be brought under some exception, was 5d. She did not fall under the only exception, that contained in Schedule C, Regulation 4, whereby half-rates only were to be charged, for “safety” and “repairs” were not in question, and as to “convenience,” it could not be said that a vessel which had, under the terms of a charter-party, to be placed “at the disposal of the charterers at Leith,” entered that harbour “only for convenience.” (2) The defenders were also justified in deducting the sums second sued for, £23, 15s. 8d. By article 13 of the charter-party “restraints of princes and rulers” were mutually excepted. This meant that loss thereby occasioned lay where it fell, i.e., on the ship. Quarantine was a restraint of princes—Carver on “Carriage by Sea,” 4th ed., art. 82, p. 100; “ II Progreso” 1892, 50 Fed. Rep. 835; Brunner v. Webster, 1900, 5 Com. Cas. 167; Scrutton on Charter-Parties, 5th ed., art. 82, p. 187—and the loss accordingly fell on the ship and her owners. The ship was not during the period of quarantine at the disposal of the charterers, who accordingly ought not to have to pay hire for that time— Whites v. Steamship Winchester Company, February 5, 1886, 13 R. 524, 23 S.L.R. 342.

Argued for the respondents (pursuers)—(1) The pursuers were entitled to payment of the sum first sued for, £6, 19s. 7d., which the defenders were not justified in deducting. Under sec. 58 of the Act, Schedule B was to be read subject to and in conformity with Schedule C. Regulation 4 of

Schedule C showed that landing or taking on board goods, or, what was not here in question, staying more than a month, were the criteria of the exigibility of full rates. The “Lina” did not fall within these categories. She neither came to land goods, for her holds were clean, nor, so far as concerned the owners, to load. The charterers were not bound to load at Leith, but might have done so anywhere within the permitted geographical area. Accordingly as regards the owners the “Lina” must be held to have come in for safety or convenience or repairs, and safety and repairs being out of the case must be held to have come in for convenience. The result of upholding the defenders' contention would be that they would, without payment of rates for the “Lina,” have got the use of the harbour. (2) Nor were the defenders justified in deducting the sum second sued for, viz., £23, 15s. 8d., being the hire payable for the vessel while detained in quarantine. Whites v. Steamship Winchester Company, cit. sup., did not apply. It was the case of a freight charter, and the vessel had never been at the disposal of the charterers — was never an arrived ship. The charter here in question was a time charter, and the charterers after selecting a port and ordering the captain, who was bound to obey their order, to proceed there, were not entitled thereafter to refuse to pay the hire due for the period of detention through quarantine. The charterers had a wide choice of ports free of quarantine restrictions. Article 12 detailed in full the occasions upon which hire was to cease. That it was to cease in circumstances quite different from those provided for was not to be implied. Article 13 was not to apply to the cesser of hire at all, but applied where performance of the various obligations hinc inde contained in the charter-party was rendered impossible by restraint of princes, &c.— Hough v. Herd, 1885, 54 L.J., Q.B. 294.

At advising—