United Kingdom House of Lords Decisions

There was no cargo ready for her, however, until 13th August, and even then not enough. She had twice to be moved from her berth under a very reasonable regulation at the port that a vessel should not be permitted to occupy a berth when not loading, and as there was no coal for her she had, as I say, twice to be moved, and her loading was only completed by 23rd August.

Under these circumstances the plaintiffs brought an action for the loss and damage they had sustained in respect of the detention of the “Ardandearg.”

Now, it cannot be denied that the merchant is under an absolute obligation to furnish the stipulated cargo, and I do not understand upon what theory the First Division of the Court of Session overruled the judgment of the Lord Ordinary.

With great respect to their Lordships, I may say generally that I think there has been some confusion between the supply of a cargo and the obligation to load and the qualifications thereof.

I am very sorry if any observations of mine or of the late Lord Herschell have been supposed to throw any doubt upon so well-recognised a principle of commercial law as that a merchant is under an absolute obligation to supply the cargo.

The case which is supposed to have created the doubt is Little v. Stevenson & Co. ( L.R. Appeal Cases, 1896, page 108), and the passage referred to is at page 116, beginning—“The proposition of law disputed was that a merchant must be always ready with his cargo at all times and in all places, and under all circumstances, to take advantage of any such contingency if it should arise.”

The passage itself should be referred to, and Lord Herschell's, which is at page 118, three lines from the bottom:—“It is alleged that the obligation existed in point of law, that at all ports, under all circumstances, however unreasonable it might be to anticipate such a contingency, however deficient the quay might be in the means necessary for storing or protecting or preserving cargo, whatever difficulties there might be, in short, that was an obligation always resting upon the shipper.”

I thought then, and I think still, that to use Lord Herschell's language, such an obligation on the shipper would be most unreasonable.

But what relevancy had such a case to the case before your Lordships. The controversy turns, as the Lord Ordinary finds, upon the true construction of the charter party in view of the facts as proved.

I also agree with the Lord Ordinary that delay in the loading is one thing, and the failure to provide a cargo to load is another and a very different thing. He found as a fact that the failure of the defenders to perform their primary duty of providing a cargo was the cause of the delay.

I am not quite certain that I understand the second ground upon which it is contended that the ship was liable for delay in arriving at her chartered port. It seems to me that under the circumstances detailed by the master it was quite reasonable for him to do what he did. But, of course, however reasonable, if it were a breach of contract the reasonableness of the master's conduct would be no answer. But I fail to discover where is the contract of which it is a breach. She arrived before the cancelling clause, and I am unable to follow the argument which is supposed to establish her responsibility.

I think it is quite immaterial to discuss cases in which it is either proved or assumed that there are particular circumstances known to both the parties and with reference to what they may be supposed to contract, which may affect both the providing and the loading of the cargo. It is enough to say that no such question arises here, and I am of opinion that the judgment of the Lord Ordinary ought to be restored and the judgment of the First Division reversed.

Lord Davey—I am of opinion that the decision of the Lord Ordinary in this case was correct; and I am so well satisfied with the reasons for his opinion given by him that I should be content to simply express my agreement were it not that we are differing from an unanimous judgment of the Inner House.

Lord Pearson has held that the delay complained of was caused not by the exceptional congestion of shipping but by the failure of the defenders (the present respondents) to perform their primary duty of providing a cargo, and that there are no clauses in the charter-party which on a sound construction will excuse the respondents for the delay.

In the case of Postlethwaite v. Freeland (5 A.C. 599, at p. 619) Lord Blackburn in advising this House said—“I am not aware of any case contradicting the doctrine that in the absence of something to qualify it the undertaking of the merchant to furnish a cargo is absolute.” It has been argued that this doctrine was departed from and the obligations of the shipper or charterer to have his cargo ready were expressed in a less absolute form in some observations of the Lord Chancellor and Lord Herschell in Little v. Stevenson (1896, A.C., 108). I do not understand that to be so. I think that what was there laid down must be read with regard to the facts of that case, and that all that was meant was that the shipper's or charterer's obligation is only to have his cargo ready when the ship is ready to receive it in ordinary course, and that he is not bound to be prepared for a contingency or fortuitous circumstance not contemplated by either of the parties.

There is nothing to be found in the charter-party in the present case which, in my opinion, should be held to qualify this absolute obligation of the respondents. The exception of riot, &c., “and other causes beyond the control of the charterers which may delay her loading,” in my

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