Scottish Court of Session Decisions

The “Arden” Steamship Company, Limited, 5 Fenchurch Street, London, owners of the s.s. “Arden,” pursuers, raised an action in the Sheriff Court at Glasgow against William Mathwin & Son, coal exporters, Glasgow, defenders. The claim or demand of the pursuers was—“For demurrage in terms of charter-party, of date 22nd October 1909, at the rate of 16s. 8d. per hour during 134 hours 53 minutes, from 12 22 a.m. on 29th October 1909 to 4.15 p.m. on 3rd November 1909, during which the defenders detained the vessel over her stipulated lay time in loading a cargo of coal at Methil.”

The charter-party provided, inter alia—“1. Loading.—That the said steamer being warranted tight, staunch, strong, and now in every way fitted and ready for the voyage, shall, with all possible despatch, sail and proceed to Methil Dock and there load in the customary manner, at the usual berth or berths, in one or more lots, a cargo of coals from such colliery or collieries as the charterers may direct (and the charterers are not bound to ship from any other colliery or collieries), not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, fire coal, and furniture; the freighters being allowed for loading the vessel 60 running hours, commencing from first high water after arrival in roads, and notice given according

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to the customs of the port, but time in any case not to count between 2 p.m. Saturdays and 6 a.m. Mondays. Time not to count on any general holiday, colliery, national, local holiday or fete day, nor in case of pitmen or other hands striking work, or lock-outs, railway detention, or delays through stoppages at collieries with which steamer is booked to load, nor from riots, frost, or floods, or any accidents or cause beyond control of the charterers which may prevent or delay the loading, from date of this charter until the actual completion of loading … 8. Demurrage.—Demurrage to be paid to the steamer at the rate of sixteen shillings and eightpence for every hour employed beyond the time allowed for loading and discharging, subject to the exceptions contained in this charter unless steamer already on demurrage.”

The facts of the case appear from the first sixteen findings in fact of the following interlocutor of the Sheriff-Substitute ( Fyfe) (which were repeated by the Inner House), dated 29th November 1910, and the note appended thereto—“Finds (1) that by charter-party dated 22nd October 1909 (No. 13 of process) the defenders chartered the pursuers' steamship ‘Arden’ to load at Methil a cargo of coal for Rotterdam; (2) that under the charter the loading time was 60 running hours commencing from first high water after arriving in the roads and notice given according to the custom of the port; (3) that the exceptions in the charter-party included, inter alia, ‘delays from stoppages at colliery with which steamer is booked to load,’ and also included ‘any accident or cause beyond the control of the charterers which may prevent or delay the loading’; (4) that the vessel arrived in Methil roads at noon on 26th October 1909; (5) that notice was duly given as required by the charter-party; (6) that the first high water after the arrival in the roads and notice given was at 12·22 p.m. of the same day; (7) that on the arrival of the ‘Arden’ in the roads there were other ships with prior right to go into loading berth; (8) that according to the bye-laws regulating loading at Methil (No. 24 of process, article 8) steamers rank for loading in the order in which they are ready to take in cargo; (9) that the ‘Arden’ was a vessel taking a mixed cargo; (10) that according to the bye-laws (No. 24 of process, article 7) she was not entitled to a berth until the whole of her cargo was available; (11) that the ‘Arden’ came into dock about noon of 27th October to await a loading berth; (12) that a loading berth was available for her at 10 p.m. on 27th October; (13) that she did not get a berth because her coal cargo was not forward; (14) that the ‘Arden’ was berthed on 29th October at 9.45 a.m.; (15) that the loading was finished on 3rd November at 4.15 p.m. and the vessel sailed that day about 5 p.m.;(16) that the loading of the ‘Arden’ was interrupted and she was removed from the berth several times because her coal cargo was not available; (17) that the delay inloading arose from causes beyond the charterers' control and falling within the exceptions of the charter-party; (18) that giving effect to the said exceptions no demurrage is due: Finds in law that in respect the detention of the vessel beyond the stipulated loading time was owing to causes falling within the charter-party exceptions the defenders are not liable in demurrage: Therefore assoilzies the defenders and finds them entitled to expenses.’

Note.—“The question in this case is, Was the very serious delay which occurred in loading this vessel attributable to causes falling within the exceptions of the charter-party?

The vessel was chartered to load ‘in the customary manner,’ and it appears that the customary manner at Methil is somewhat peculiar—one of the peculiarities being that Methil dock is worked along with the Burntisland dock, and as regards loading turn, vessels arriving in either dock are treated as having arrived at the same loading port. Another peculiarity is that certain vessels trading regularly from the port get a preference of loading berth; but from the proof I do not think that any part of the detention of the ‘Arden’ is attributable to this custom.

One of the Methil dock bye-laws debars a steamer from obtaining a loading berth until her whole cargo has arrived, if she is taking a mixed cargo—as upon this occasion the ‘Arden’ was.

The harbour authorities, however, do not construe this rule too strictly, and if, say, two-thirds of the cargo had come forward the ‘Arden’ would have got a berth. The only portion of her cargo in regard to which there was trouble was 1400 tons Cowdenbeath coal, which had to come from the pits of the Fife Coal Company. She carried also about 600 tons of Wemyss coal and 200 tons of Lochgelly, besides about 100 tons of Wellwood coal for bunkers, but with these the present action is not concerned, for these were sent forward in good time.

According to the charter-party, the loading time begins at the first high water after arrival in the roads, that is to say, at 12.22 p.m. on 26th October. As the ‘Arden’ did not finish loading till 4.15 on 3rd November, the time between the commencement of the contract loading time and the finish of the loading appears to be 196 hours.

It is agreed that one hour may be allowed for bunkering, reducing the time to 195 hours. Deducting the 60 hours allowed by the charter-party, the vessel was apparently delayed 135 hours on demurrage, and the question is how much of that detention of 135 hours was occasioned by causes falling within the charter exceptions.

There was, in the first place, some delay by breakdown of the loading cranes. This extended to about fifteen hours, and the practice at Methil is to allocate that amongst the vessels at each of the six cranes. On this basis the ‘Arden’ would

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be entitled to credit for two and a half hours.

The vessel was kept out of a loading berth from 27th October at 10 p.m. till 29th October at 9.45 a.m. for the reason that her coal cargo from Cowdenbeath pits was not forward. She is entitled to credit for these 36 hours.

Then the ‘Arden' was three times put out of her berth because there was no coal forward for her, first from 6 p.m. on the 29th till 9·30 a.m. on the 30th, being 15 1 2 hours; again from 3.20 p.m. on the 30th October till 11.30 p.m. on 1st November, being 56 hours; again from 8.30 a.m. on 2nd November till 11 a.m. on 3rd November, being 26 1 2 hours, making in all of time she was put out of berth from want of cargo 98 hours.

The whole question accordingly in this case is whether the time during which the vessel was waiting for a berth, and during which she was put out of berth, is to be held as excepted time. It is so excepted if the cause was colliery stoppage. It is a peculiarity in the present case that the vessel was not directly stemmed to any particular coal pit, but rather was stemmed to a loading centre for sixteen pits. What had been ordered for this vessel was 1400 tons of Cowdenbeath doubles. There are sixteen pits producing Cowdenbeath coal for the Fife Coal Company. When the coal comes up it is screened to various sizes—one class (which represents about 11 per cent. of the output) being known in the market as doubles. What happened was that certain vessels, which were to take coal from the Cowdenbeath pits, had not turned up in time, and the colliery people, being in the practice of preparing cargo as required for shipment as it emerged from the pits, had their preparation arrangements upset, and in consequence the output of coal restricted.

The relationship of cause and effect between the fact that the output was so restricted, and the other fact that the ‘Arden’ was three times put out of her loading berth, is not very clearly made out, but upon the whole I think it is established. I confess I sympathise a good deal with the pursuers in this case being practically made a convenience of for purposes of economic colliery management at Cowdenbeath.

It is obviously an economy and a convenience to the Fife Coal Company to stop the output from time to time in order to get their screening done comfortably; and it certainly looks like a hardship upon pursuers that their ship should have had to lie at Methil for a week to suit the convenience of the Fife Coal Company in working their Cowdenbeath pits. On the other hand, it is an equal hardship to the charterers that they should have to pay demurrage for delay which they could do nothing to prevent, and as they had accepted a charter-party with the extraordinary provision that the running hours for loading were to commence at the first high water after arrival in the roads, the charterers are probably entitled to strictly insist upon their exceptions.

Both parties took a risk under the charter, and the charterers were quite within their right in electing to have Cowdenbeath doubles as the cargo to be carried by the ‘Arden.’ It is perfectly clear upon the proof that the failure of the Colliery Company to send forward the coal was a matter altogether beyond the control of the charterers. It is argued that the delay which occurred was not colliery stoppage in the sense of the expressed exception of the charter-party, because that refers to the case of a steamer booked to load at a particular colliery, rather than, as in the present case, booked to load coal which might come from any one of sixteen pits. I am unable to read the charter-party in the narrow sense that the exception does not apply unless the vessel is stemmed to a particular coal pit.

She was stemmed to load 1400 tons of the Cowdenbeath doubles, which are shipped at the port of Methil, and the charter may, I think, be reasonably read as meaning that the ‘Arden’ was, in the sense of the exception clause, booked to load at collieries where stoppages occurred.

Even if I am wrong in this view, I think the exception clause still covers the detention, because even if there were not stoppages in the strict sense, there was derangement at the collieries which prevented the production of the Cowdenbeath doubles, that is to say, there was a cause beyond the charterers' control ejusdem generis with the exceptions set forth in the charter-party.

I take it to be now settled that very special words must be used to give the expression ‘causes beyond the charterers' control’ an independent meaning, and the reason for this is obvious, because 99 out of every 100 causes which delay a vessel may be said to be beyond the charterers' control; and to sanction the interpretation which the defenders here seek to put upon these words would be to sanction the doctrine that, provided these words are in a charter-party, the shipowner accepts practically the whole risk of loading or discharging delays. Indeed, if these words ‘causes beyond the charterers' control’ are to receive the independent effect the defenders here contend for, there is no need at all for the enumeration of exceptions. It would be much simpler and quite as effective to say the ship to be loaded in so many hours, causes beyond the charterers' control excepted.

The case relied upon by the defenders is in my opinion not in point— Larson v. Sylvester & Company, 1908 App. Cases, p. 295. In that case, indeed, the House of Lords expressly recognised the doctrine of ejusdem generis, and the decision turned upon a special element, which is not in the present case, viz., that the parties to the contract had gone out of their way to get round the ejusdem generis doctrine, and had expressly excepted ‘hindrances of what kind so ever.’

In the present case I am of opinion

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that the words ‘causes beyond control of the charterers' must be construed as referring to matters ejusdem generis with the enumerated exceptions— Thorman v. Dowgate S.S. Company, Limited, 1910, 1 K.B. 410.

The question therefore is, Was the cause of delay an excepted cause?

For the reasons which I have explained, my opinion is that the delay is proved to have arisen from a cause beyond the charterers' control, and that the cause was, if not strictly stoppages at collieries, at all events ejusdem generis with stoppages at collieries, and so covered by the exceptions of the charter-party.

It appears therefore that the time (135 hours) the vessel was apparently on demurrage is wiped out by the exceptions. In order to effect a settlement the defenders before coming into Court had offered the pursuers £48, 13s. 1d., and they tender that in the pleadings. But I do not think pursuers can now claim that amount or any amount, for they did not accept the tender, and defenders do not on record admit being due anything at all. In the view I take the tender has no effect at all. If pursuers had got decree for something under £48, it might have had the effect of making pursuers liable in expenses. But upon the result I have arrived at, which is in effect to sustain the defenders' third plea-in-law, the pursuers are liable in expenses at any rate, and the tender need not be regarded.”

The pursuers appealed, and argued—The cause of delay did not fall within the excepted causes. “Stoppage at collieries” meant stoppages of an extraordinary character, and did not include cessations of production to suit the convenience of the colliery owners, nor did the phrase include a restricted output. The meaning of the phrase was made the clearer by the collocation of the other enumerated exceptions. “Any accident or cause beyond the control of the charterers” must be construed as referring to matters ejusdem generis with the immediately preceding words— Thorman v. Dowgate Steamship Company, Limited, [1910] 1 KB 410—and in any case the accident or cause must actually prevent or delay the loading. Here even if there could be said to be an accident or cause, it did not prevent or delay the loading but the providing of a cargo, and the obligation to load must be distinguished from the antecedent and absolute obligation to provide a cargo— Gardiner v. Macfarlane, M'Crindell & Co., February 24, 1893, 20 R. 414, 30 S.L.R. 541; Grant & Co. v. Coverdale, Todd, & Co., 1884, 9 App. Cas. 470; Ardan Steamship Company, Limited v. Weir & Co., August 4, 1905, 7 F. (H.L.) 126, 42 S.L.R. 851. [The Lord President referred to “Knutsford” Limited v. Tillmans & Co., 1908 AC 406].

Argued for the defenders and respondents—They did not deny that the obligation to supply a cargo was absolute in the absence of qualification in the charter-party (Carver, Carriage by Sea, 5th ed., section 252), and there might even be a presumption that the exception clause related only to the work of loading, but the clause might by inference apply to the getting of the cargo (Carver, Carriage by Sea, 5th ed., section 257a). The enumerated exceptions showed that the clause did so here. The collieries' failure to produce this class of coal was a “stoppage at collieries.” If there was, in fact, a stoppage beyond the control of the charterers, it did not matter what the cause of the stoppage was— Letricheux & David v. Dunlop & Company, December 1, 1891, 19 R. 209, 29 S.L.R. 182; Mein v. Ottman, December 11, 1903, 6 F. 276, 41 S.L.R. 144; Turnbull, Scott & Co. v. Cruickshank & Co., December 15, 1904, 7 F. 265, 42 S.L.R. 207—provided the collieries' non-production was the real cause of the coal not being forward— Glasgow Navigation Company, Limited v. Iron Ore Company, Limited, 1909 S.C. 1414, 46 S.L.R. 908. In any case the delay was covered by the general words “any accident or cause beyond the control of the charterers.” These general words should not be limited by the application of the doctrine of ejusdem generis; “any” was not accompanied by “other,” and was at least as wide as “any other” “of what kind so ever,” which was held in Larsen v. Sylvester & Co., [1908] AC 295, to exclude the application of the doctrine.

At advising—