Ct. ofA r r . ] Hic k v. Bodocahachi, Sons, an d Co. an d oniEBh.
[ Ct. opApp.
This brings me to the first of the Q raised on the appeal—viz., the lia b ility o signees fo r the delay caused, by the st • order to determine this question i t is ne° ■ ^ eg ascertain exactly what obligation the c ' of the cargo were under to the shipow - respect to the discharge of the cargo, an P ticular w ith reference to the time w it . ..
the consignees were bound to accept ' I t is the duty of the consignee to tak0 h g from the master when he has done his P sneci- unloading. No time for unloading bei g P fied, the obligation of the defendant ?n delivery was that which is implied y ’ other words, a reasonable time. Bp
not solve the difficulty. The questmns s till re main—What is a reasonable time ? H
be ascertained? Is i t to be iascertaiired w ith reference to what is usual, and can t and provided for, or w ith reference t , p which actually happen, whatever th y y The defendants did all they could under the circumstances which happened. Were J to do more? I t m ight be naturally expected that those questions would by this time - y settled one way or the other by a u th o rity, but this is by no means the case. The ■ T|„
sions are difficult to reconcile, and the °P I of eminent judges are by no means m a • The view that a reasonable time means re- able, having regard to the events which ac ua y happen, is supported by considerable authori y.
For example, in Taylor v. G r e a t N ortU rn B ail- way Company (L. Bop. 1 C. P. *18o) i t wa that a railway company, as a carrier o g . ’ was bound to deliver them in a reasonable time, but was not liable for delay caused by a. " loc its line for which i t was not responsible ime block was occasioned by the breakdown o . belonging to another company which had runn g powers over the defendants line. E rie ,, ' ' • 0 said: “ When, as in the present case, therem ^ express contract, there is an implie
deliver w ithin a reasonable time, an can to mean a tim e w ithin which ^ „ r^j1(J deliver using all reasonable oxer • other judges in that case took Court This was also the view taken hot , of Queen’s Bench and the Court of Exchequer Chamber in Ford v. Cotesworth( • ^
f i “ S',? if " « " tSl
land (42 L. T. Bep. N_._S. 845; 4 Asp- Mar.
Law Cas. 302; 4 Exch. Div. 1 > , Pwhich 599). In Ford v. C otesw orth (uU y " V . was an action on a charter-party, q tion was that the cargo was to be deliver in the usual and customary manner but n o tb in j was said about time. Owing , ! „ £ in the bombardment the cargo “ " ^ C c h a rte re r was not usual time. I t was held that the c
liable for the delay. The fu ll import ffitlnscascean only be appreciated by attending t ^ h and tQ up by Oockburn, C.J. (L. Bep. 4 b! -judgment the argument for the p la intiff an h Chiei Justice, and to the ultim ate decision. Ih e rpserved as appears from the report in 4 ^ o£
the question for the court .asi to. the the defendants under the °bar P j murrage for the time during which the^ship lay at her berth, but could not unload owing to tne
refusal of the authorities to allow the cargo to be landed. And ho directed the ju ry that, the , . . . rt v being silent as to the time for unloading, there arose an implied contract on the part of the freighter to unload and discharge w ithin a reasonable time, and therefore, i f there was any unreasonable delay m unloading the oriynmid discharging the ship the plaintiffs were e S i to a v e r l c t - t h a t the question whether
?he tim e occupied was reasonable or unreason- 1 vfp indeed w ith reference to the mean! and facilities Available at the port and to the regulations and course of business at the Dort Then he goes on thus : “ And there would be a point of law whether this case was to be decided w ith reference to the orumary state of things at the port o r whether any extraordinary
■ „..mafnnres that prevented the unloading m ight be taken into account. The first question for\,he ju ry was whether, looking at the ordinary
^ate of 1t h | g s 3 o X g ~
un r^sO T ia b ffi" d e la ^ e h h e ^ b e fo re ^ tto ^ J o a d te g
T b .t -ffim e d by ‘ i l f S T ^
alike and each used reasonable diligence m per his nart of the contract, each performed he o X o b C t io n he was under, and, conse- auentlyjthe action could not be maintained. I t q m I J nhserved that the decision did not pro- wlU, t he ground that both parties were e a u a ll/in deiauft, and that neither could com- X n of the other, but upon the ground that Tildther Dartv was in default, which is saying, in other words,^that there was no default on the part of the defendants. The judgment o fH a rtm B in the Exchequer Chamber (L. Bep. 5 Q. B. 548) is Is explicit on this point as is the judgment of the Court of Queers Bench. In Postlethwaite v Freeland (uU sup.) a shipowner sued a char
terer for not “ discharging a cargo w ith all des
o r b according to the custom of the port, which the charterer had agreed to do. The point raised in the present case did not there arise, but the case is valuable for the observations made in it on Ford v. Cotesworth (u h sup.) and on Wnght v.
Ct. of App.] Hic k v. Bodocanachi, Sons, and Co. and others. [Ct. of App. New Zealand Shipping Company (40 L. T. Bep.
N. S. 413; 4 Ex. Div. 165), which I w ill refer to presently. Thesiger, L.J. (in 4 Ex. D iv. 160) understood Ford v. Cotesworth (ubi sup.) as esta
blishing that where no time for unloading is mentioned “ the law implies a contract that each party w ill use reasonable diligence in per
forming that part of the delivery which, by the custom of the port, falls on him.” Lord Blackburn expressed the same view in 5 App.
Cas. 621. His observations are the more valu
able as they remove all doubt as to the meaning of the expression “ reasonable time under the circumstances,” I t is clear that he meant under the circumstances which existed at the time of unloading, and Lord Selborne, I think, so under
stood him in the passage in 5 App. Cas. 608. Bur- mester v. Hodgson (2 Camp. 488) was referred to in all these cases, but does not throw much lig h t on the question. I t was an action by a shipowner against the holders of a b ill of lading for delay in unloading a cargo of wine in London. Nothing was said about time, but Sir James Mansfield held th at there was an implied agreement to unload in the usual and customary time for unloading wine in London. The delay arose from the crowded state of the docks, which prevented the unloading of the ship in her tu rn into the bonded warehouses which was the customary way of unloading.
Assuming the Chief Justice to have been rig h t as regards the agreement to be implied, the rest followed; but the general proposition that where no tim e was fixed fo r unloading i t is the char
terer’s duty to unload in the usual and customary time was emphatically denied by the Court of Queen’s Bench in Ford v. Cotesworth (ubi sup.), and again by Lord Blackburn in Postlethwaite v.
Freeland (ubi sup.). This is an authority, there
fore, against the view that in all cases reasonable time means the usual time under ordinary circum
stances. The usual and customary time is the proper time under ordinary circumstances, but not necessarily so under extraordinary circum
stances.
I pass now to the authorities relied upon in support of this view. Beliance was placed by counsel for the shipowner on such cases as Adams v. Royal M a il Steam Packet Company (5 C. B. N. S. 492), relating to the obligation of charterers to furnish cargoes to ships chartered to carry them. In this particular case there was delay in loading. No time was fixed. The delay was twofold : ( l) owing to some dispute w ith a railway company the charterers had no cargo at the place of loading when the Bhip was ready to receive i t ; (2) after the cargo arrived there was a further short delay in loading owing to a strike among the colliers. The court held the charterers liable for the delay, and no distinction was made between the first period and the second. But for the first delay the second m ight have been immaterial. Both W illiam s and Byles, JJ.
ointed out that the real default was in not aving a cargo ready to load (see p. 494); but there are undoubtedly expressions in the judg
ments that the charterers contracted to have the cargo ready w ithin a reasonable time, and that this was a reasonable time under ordinary circum
stances. But, as pointed out in that case by Williams and Byles, JJ., and by Lord Blackburn in Ford v. Cotesworth (ubi sup.), the charterer undertakes to have a cargo ready to load by the
time the ship is or ought to be ready to receive i t ; the risk of being unable to provide the cargo falls on the charterer, who has to procure i t ; the uncertain element of reasonable time for procur
ing a cargo does not in tru th enter into his obliga
tion. Barker v. Hodgson (3 M. & S. 267) is a well-known illustration of this doctrine. The unconditional nature of a charterer’s obligation to furnish a cargo appears, however, to have been lost sight of by Thesiger, L.J. in Wright v. New Zealand Shipping Company (ubi sup.). That was an action by a shipowner against a charterer for delay in unloading. No time was fixed, and the charterer had not provided lighters enough to unload all the ships in which he had cargoes in what would have been a reasonable time i f there had been fewer ships to unload. He had brought his difficulties on himself, and ho unloaded other ships in preference to the p la in tiff’s ship, and so detained her. The court held the charterer liable for delay, and this, in my opinion, was clearly right, for the defendant was himself responsible for the delay. Lord Bramwell said :
“ In my judgment a reasonable time fo r doing an act is a time w ithin which i t can be done by a person acting reasonably; but the time which he spends in making his preparations for doing the act cannot be taken into account.” Cotton, L.J.
based his judgment upon the duty of the defen
dant to supply a sufficient number of lighters to unload the ship in the time usually taken to unload such a ship. Thesiger, L.J. said : “ A reasonable time means a reasonable time under ordinary circumstances, and, in the absence of some stipulation altering the implied contract between the parties, the charterers could not be relieved from the consequences of fortuitous or unforeseen impediments affecting only the due performance by them of th eir p art of the con
tract. This seems to be the result of the cases of Adams v. Royal M a il Steam Packet Company (ubi sup.) and Ford v. Cotesworth (ubi sup.).” I cannot myself reconcile this passage w ith Ford v.
Cotesworth (ubi sup.), although i t is consistent w ith what was said in Adams v. Royal M a il Steam Packet Company (ubi sup.). I t is quite obvious that the view of Thesiger, L.J. is opposed to the opinion of Lord Blackburn in Postlethwaite v. Freeland (ubi sup.). In H ill v. Idle (4 Camp.
327) no time for unloading was specified, but the merchant’s ina bility to unload in the usual time was owing to his having shipped a cargo which he could not unship without an order from the Treasury. The delay was caused by himself, and he was properly held responsible for i t on that ground. Wright v. New Zealand Shipping Company (ubi sup.) is, I think, another illustra
tion of the same sound principle. Budgett v.
Binnington (6 Asp. Mar. Law Cas. 549, 592 ; 63 L. T. Bep. N. S. 493, 742 ; (1891) 1 Q. B. 35) throws no lig h t upon the question of reasonable time, for there the charterer had undertaken to unload in a specified number of days, and his inability to do so by reason of a strike was no excuse for his breach of contract. Bassey v.
Evans (4 Camp. 131) and Barret v. Dutton (4 Camp. 333) are older illustrations of the same principle. In this state of the authorities it appears to me most in accordance w ith principle toact upon the maxim Lexnon cogitad impossibilia.
We have to deal w ith implied obligations, and I am not aware of any case in which an obligation to pay
m a r i t im e l a w o a s e s
.
r opimuu) uv — . diligence under the circumstances which e* 1B* * the time of unloading, unless, indeed, as m ^
y. Idle (ubi sup.) and other cases like i t those circumstances are attributable to his ow , duct. Unless he has caused the delay, o i t has been caused by his agents or seJ^a ’ is in no default, and the loss to the skipowner must be borne by him, not because he is m fault, but because he is unable to show any . ,.
the part of the cargo-owner rendering for the delay from which the ship
suffered. It'sounds reasonable to. s a y th a t h who has to find labour must take the risk ot the labour m arket; but this proposition does not solve the d iffic u lty ; i t leaves out of Bight the time w ith in which the labour has to be f °nnd- The conclusion at which I have arrived is in harmony w ith the ordinary course ot bus ness, for there are two well-known terms ot contract one w ith and the other w ithout a specified number of days for unloading. I f the hrsc form is used, the ris k of a strike falls o merchant; i f the second form is used, i t does not, and the risk falls on the shipowner, not because he has agreed to bear it, but because he is unable to throw i t on the merchant. „ _
I may add that I have looked fo r. ur guidance on the subject in English, American, a other works. The Scotch law as stated m ¿Soil s Commentaries (vol. 1, p. 623) is in accordance wi the conclusion at which I have arrived. -M-r - says in that work, which is extremely well done, as everybody knows : “ Where there is no special contract for lay days or demurrage, nothing saia on the subject, or an agreement that the T P a l time shall be allowed for loading or
the time during which the ship must re load or unload w ill be regulated by ^ at 18 °ns tomary or reasonable, or (in circumstances not occasioned by fault ot the sh,PPer)Unde; th[ ’
in this case, as where a special con dgd is made, i f the delay be occasioned by tlm crowuea state of the docks; nor where the customa y of delivery of the particular a rtic ie requ res mor time than the ordinary delivery.. Itw iU b e o n ly where the difference in the reqms con.
livery is to be ascribed to the shipp Carvcr;
signee that demurrage w ill be due. • in his work, Carriage by Sea, adopts the same view, as w ill be seen by reference to F g 180. I have not found
clear on the point in American firsc gi h t French Code de Commerce, 274, j n adverse to this view, but i t aP P C . . *< pf practice construed in accordance ' d ed the time for loading and unloading is u o t^ x e a
a t s i x
of the captain (see decisions phe Marseilles), and that in this case captain delay ought to be borne equally by the capta
Ee y, L .J .— T he state o f th in g s in w h ic h th is litie a t io n comes before us is as fo llo w s : I t is an actfon b y th e shipow ner agai nst the c °n slgnees, Messrs. 'R aym ond and R eid, on the b i l l o f la d in g , and R seeks to m ake th e m responsible fo r the u n u su a l delay w h ic h occu rred in th e u n lo a d m g of l,he vessel in th e L o n d o n Docks. I h a t de la y re s u lte d fro m th e s trik e o f th e do ck la bourers and nf th e lig h te rm e n , w h ic h occu rred d u r in g th e course o f th e u n lo ading . T w o questions have been raised The fir s t is one upon th e express te rm s o f th e b i ll o f la d in g . T h a t b ill o f la d in g contains these w o r d s : “ T he goods are to be a p plied to r J ritM n tw e n ty -fo u r ho urs o f th e s h ip ’s a r r iv a l and reuOTting a t th e Custom -house; otherw ise th e m aster o r agent is to be a t lib e r ty to p u t in to f f i S s « laud¿he.sam e a t
P i ” ! " : s p e r t ^ fca ^ ac h a r g ^ s ^ ip u la te d ^ e r m n ^ to ^ lm r n eh e re iu to b . b o ru r on t e t e f f o f th e d e f o u d a n ts t t ia L ^ d e r t ^ c i r c u m
-r ig h t so given, hn n, th e shipow n u . 7 « t i o n I .m unable to con cur «
m e n t fo r tw o reasons. goods
mv op inion, th e clause does n o t a p p ly . •>
o th e r event th a n th a t w b £ u^ y S l i g in the
therefore’ can no t re lie v e th e S > n,if .es iro n , a n , lia b ilit y u n d e r w h ic h th e y m a y res .
no expression w ith re g a m we have to
h a s 'b e e n n i a rg u m e n t addressed to us to shake M s conclusion o f fa c t, th a t th e shipow ner h a d on m s couc Vif>ln f o r th e tr im m in g , and th a t K w a s * no d iffic u lty ab ou t th a t operation.
C onsequently th e o n ly d iffic u lty m d is c h a rg in g th e ship was th e d iffic u lty w h ic h arose on th e m ,r t o f Pth e m e rc h a n t to receive th e goods a fte r Fhev are trim m e d , and discharge th e m fro m th e ship W e have th e re fo re a case in w h ic h each X v has a d u ty to p e rfo rm , and in w h ic h one F F w i z th e m e rc h a n t, has been pre ven te d fro m p e rfo rm in g his p a rt. I the re fo re la y aside a ll those cases in w h ic h th e re are c o n c u rre n t acts to t e done and b o th th e p a rtie s concerned h a re
Ot. or App.] Hic k v. Rodocanachi, Sons, and Co. and others. [Ct. or App. been prevented from performing those acts.
Those cases have no relation to the present controversy. B ut again, no lay days are defined in the b ill of lading ; consequently I entirely lay aside the consideration of that class of cases in which lay days have been mentioned, and by which i t has been determined, from the time of Lord Tenterden down to the recent case of Budgett v. Binnington (63 L . T. Rep. N. S. 493,742 ; (1891) 1 Q. B. 35), that where this is the case the merchant makes himself liable i f the vessel is not discharged w ith in the time limited, although the delay may not be attributable to his fault or to his default. The question then arises in this w ay: We have a b ill of lading containing no express stipulation as to the time of discharge, and some contract on the side of the ship as to its part in discharging, and some contract on the side of the merchant as to receiving and discharging the cargo thus being implied. What is that contract that is to be implied on the part of the merchant P Is it to discharge the cargo in the customary or usual time, or in a reasonable time under ordinary circumstances, or in a reasonable time under the actual circumstances which occur;
or is i t to discharge w ith due and reasonable diligence P In some cases the difference between these forms of expression may be im m aterial; in the present case the difference appears to be vital. Now the question has first to be con
sidered on authority, and I shall first consider those cases which throw lig h t on the particular matter in hand, viz., the implied contract to unload on the part of the consignees. F irs t in point of date occurs a case of Burmester v.
Hodgson (2 Camp. 488) before S ir James Mans
field, which was in the year 1810, in which he held the implication is to unload in the usual and customary time. I t is impossible, I think, not to feel that that decision was influenced
field, which was in the year 1810, in which he held the implication is to unload in the usual and customary time. I t is impossible, I think, not to feel that that decision was influenced