H . o p L .] Fo r e s t St e a m s h i p Co m p a n y v.Ib e r i a n Ir o n Or e Co m p a n y. [H . o pL.
H O U S E O F L O R D S . T hursd ay, N ov. 30, 1899.
(Before the Lo r d Ch a n c e l l o r (Halsbury), Lords Ma c n a g h t e n and Ro b e r t s o n.) Fo r e s t St e a m s h i p Co m p a n y v. Ib e r i a n
Ir o n Or e Co m p a n y, (a)
ON A P PE AL FROM THE COURT OP A P PE AL IN ENG LAND.
C h a rte r-p a rty — C onstruction— “ W o rh in g days o f tw e n ty -fo u r hours ” —D em urrage.
The a p p e lla n t shipowners agreed by c h a rte r-p a rty to p ro v id e the respondents w ith ships f o r the ca rria g e o f ir o n ore d u rin g a p e rio d o f twelve months. The c h a rte r-p a rty contained a clause as fo llo w s : “ C harterers o r th e ir agents to be allowed 350 ions p e r w o rh in g da y o f tw e n ty -fo u r hours, weather p e rm ittin g ( Sundays a n d h o lid ays excepted), f o r lo a d in g a n d discha rgin g . . . to count f r o m 6 a.m. o f the day fo llo w in g the day when steamer is reported, unless she be reported before noon. . . . Steam er to w ork a t n ig h t i f req uire d, also on S undays and holidays, such tim e n o t to count as la y days unless used.”
H e ld (a ffirm in g the ju d g m e n t o f the co u rt below), th a t the charterers were e n title d to tw e n ty -fo u r w o rhin g hours in w h ic h to load o r discharge each 350 tons.
Th is was an appeal from a judgm ent o f the C ourt
° f Appeal (Sm ith and W illiam s, L .J J ., R igby, L .J. dissenting), reported in 79 L . T. Rep. 240;
8 Asp. M ar. Law Cas. 438, affirm ing a judgm ent
° f Bigham, J. in the Commercial Court.
The appellants were the owners of the Forest 8teamship. The respondents were the owners of certain iron mines a t Pedrosa, in the province c f Seville, Spain, and made shipments of ore from the p ort of Seville to the United Kingdom and elsewhere. The appellants on the 30th A p ril 1898 brought an action against the respondents to recover from the respondents 106Z. 4s. in respect c f fo ur days’ demurrage of the Forest alleged to be due under a charter-party dated the 14th Dec.
1897, a b ill o f lading dated the 19th M arch 1898,
?fcd an agreement dated the 25th M arch 1898.
The charter, which was p a rtly printed and p a rtly i*1 w ritin g , was in form a single voyage charter, but, by a clause a t the end, i t waB agreed between
(o) Reported by C. E. Malden, Esq., Barrister-at-Law.
VOL. IX ., N . S.
the appellants and respondents th a t the charter should remain in force fo r the conveyance of about 50,000 tons o f iro n ore by steamers belong
ing to the appellants or other approved substi
tutes, in about equal m onthly quantities over the year 1898. The present action was one of several actions brought to recover demurrage under the same charter, the question as to the meaning of the p articula r clause being raised in a ll the actions. The m aterial clauses o f the charter- p arty were as follow s:
T h e a c t o f God, th e Queen’ s enemies, in s u rre c tio n s , rio ts , fire , fro s t, floods, s trik e s , lo o k -o u ts , stoppage o f tra in s , accidents to m ines, ro llin g stock o r m a chinery, or o th e r un a vo id a b le h ind ran ces be yond th e personal c o n tro l o f shippers, ch a rte re rs, o r consignees, a ll and e ve ry o th e r dangers and accidents o f th e seas, canals, riv e rs , a n d steam n a v ig a tio n o f w h a te ve r n a tu re and k in d soever a lw a ys excepted, in such cases la y days n o t to c o u n t and dem urrage n o t to accrue unless p re v io u s ly on dem urrage. C h a rte re rs o r th e ir agents to be a llo w e d 350 ton s pe r w o rk in g d a y o f tw e n ty -fo u r ho urs, w e a th e r p e rm ittin g (Sundays and h o lid a y s excepted), fo r lo a d in g and d isch a rg in g , same to be re ve rsib le and to be averaged voyage b y voyage to a v o id dem urrage and to c o u n t fro m 6 a.m . o f th e day fo llo w in g th e da y w hen steam er is re p o rte d a t th e custom house unless she be re p o rte d before noon and in w h ic h case tim e to c o u n t fro m n o tic e o f readiness and in e ve ry respect re ady to lo a d o r discha rge re s p e c tiv e ly a n d in fre e p ra tiq u e . S team er to w o r k a t n ig lft i f re q u ire d , also on Sundays and h o lid a y s , such tim e n o t to c o u n t as la y days unless used. A n y days on dem urrage ove r a n d above th e said la y in g days a t sixpence pe r n e t re g is te r to n p e r day.
T h e ca p ta in to te le g ra p h c h a rte re rs ’ agents a t p o r t o f lo a d in g th e stea m er’s d e p a rtu re fro m o u tw a rd p o rt of discharge, o r in d e fa u lt tw e lv e h o u rs m ore tim e to be allow ed.
B y th e ir statement of claim the appellants alleged th a t taking the tim e occupied in loading and discharging together, and m aking a ll proper allowances, the ship was three days ten hours on demurrage, and a t 6d. per ton per day on 1062 tons (the registered tonnage) the to ta l amount of the appellants’ claim fo r demurrage was 106Z. 4s.
The appellants, in calculating the lay days, pro
ceeded on the basis th a t the respondents were to perform the loading and discharging at the rate of 350 tons per w orking day, such days to be made up o f periods o f tw enty-four hours reckoned from the tim e specified in the charter-party to the cor
responding tim e on the follow ing day, such hours being consecutive hours, subject, however, to the
B
2
H . of L .] Rua b o n St e a m s h ip Co m p a n y v. Lo n d o n Assur a n c e. [H . of L.
length o f a day being extended by tbe number of hours ( if any) during which the loading or dis
charging should be prevented by bad weather.
The respondents by th e ir defence raised two con
tentions on the construction o f the charter, v iz .:
(1) th a t by reason o f the clause in the charter,
“ Tim e . . . to be averaged voyage by voyage,” no demurrage was ascertainable or payable u n til the whole of the 50,000 tons had been carried; (2) th a t the respondents were allowed tw enty-four w orking hours fo r loading or discharging each 350 tons, and th a t inasmuch as the w orking hours fo r each day (at the tim e in question) at the p o rt o f Seville were from 6 a.m. to 6 p.m., they were entitled (the cargo consisting of 2080 tons) to 284 w orking hours, or twelve days o f tw enty-four hours each, excluding Sundays and holidays. B y an order made by Mathew, J. i t was ordered th a t the action should be transferred to the Commercial L is t fo r tria l, and it was directed by the judge th a t the question of construction of the charter should be trie d as a prelim inary question of law.
The action was set down fo r tria l on th is p re lim i
nary p oint before Bigham , J., who found th a t the respondents were entitled, under the charter- party, to tw enty-four w orking hours fo r the load
ing or discharging of each 350 tons ; th a t in the calculation of such w orking hours the respondents were not entitled to exclude meal times ; th a t the meauing o f “ voyage by voyage ” in the charter- p arty was th a t the tim e occupied in loading and discharging fo r the purpose of demurrage must be calculated at the end o f each voyage, and not a t the end of the charter-party, and th is ju d g m ent was affirmed on appeal as above mentioned.
Cohen, Q.C. and M ontague L u s h appeared fo r the appellants.
J. W alton, Q.C. and R u fu s Isaacs, Q.C. fo r the respondents.
A t the conclusion of the arguments th e ir Lord- ships gave judgm ent as follow s :—
The Lo r d Ch a n c e l l o r (Halsbury) : My Lords : I cannot in th is case aver th a t my mind has been free from doubt as to the con
struction to be placed on these words, because I th in k th a t the parties have endeavoured to do somewhat clum sily what they m ig ht have done in more precise language. B u t on looking at the substance o f the m atter it appears to me to be tolerably clear what they intended, although I adm it th a t th e ir language has not been as clear and definite as I could wish. I th in k th a t the learned judge below, and the m ajority o f the judges in the C ourt of Appeal, were rig h t in the view which they took of th is m atter. When once the idea is realised th a t there was to be a conven
tio na l and a rtific ia l day, manufactured out of a certain number of hours—and th a t there was such a day is common ground to both parties—what the parties meant by th is elaborate calculation is in te llig ib le . They were not content to use the ordinary language o f the charter-party. They wanted to get rid o f some particular decision. Or i t may be th a t they thought th a t some d ifficu lty would occur when they took the periods allowed fo r loading at the different ports of the world, and they wanted to p u t more precisely what was the bargain between them. They wanted to keep a precise record o f the tim e occupied. Therefore they have adopted th is phraseology. B u t w hat
ever the meaning of the p articula r phrase may be, although subject to criticism , I th in k th a t they meant, in effect, th a t they were going to have a conventional day of tw enty-four hours, and the tw enty-four hours day m ight be made up of broken portions of tim e in several days added together to ascertain how many days had been used in loading and discharging. M r. Cohen adm itted th a t there was to be a debit and credit account in hours, but how th a t was to be arranged unless these broken periods were to be reckoned together I cannot make out. M r. Cohen sought to confine the words to the exceptional cases of n ig h t work, Sundays, and holidays, but the interpretation of the court below is much more satisfactory. Surely the whole scheme o f the parties in breaking up what is the day, in its o rdi
nary commercial and astronom ical sense, in to periods of tw enty-four hours is intended to mean th a t the day is to consist of tw enty-four w orking hours. There is no such th in g as an “ ordinary w orking day o f tw enty-four hours.’ The th in g is absurd. The phrase shows th a t the parties in tended to p ut the periods together and to ascer
ta in the number of days by d ivid in g the to ta l number of hours by twenty -four. T hat is the only in te llig ib le meaning which I can place upon the words, and i t is the meaning given to them in the courts below. I do not say th a t the m atter is free from doubt, and I should be sorry to say th a t th is instrum ent is a model of clearness, b ut I th in k th a t a rig h t decision has been arrived at, and I therefore move your Lordships th a t the judgm ent of the C ourt of Appeal be affirmed, and the'appeal be dismissed w ith costs in th is House and in the courts below.
Lord Ma c n a g h t e n.—M y Lords : I am of the same opinion, though I adm it th a t the document is very awkwardly expressed. B u t, on the whole, I prefer the construction adopted by Bigham, J.
The d iffic u lty seems to have arisen from the fa ct th a t the parties have put tw enty-four hours into th e ir conventional w orking day—the same number o f hours as in an ordinary day. I f the w orking day had been fixed a t twelve hours there would have been no d iffic u lty at a ll.
Lord Ro b e r t s o n concurred.
Judgm ent appealed fr o m affirm ed, and appeal dism issed w ith costs here and below.
S olicitors fo r the appellants, B o tte re ll and Roche, fo r V aughan and H ornsby, C ardiff.
S olicitors fo r the respondents, C a tta rn s and He Vesian.
M a rc h 20, 23, Nov. 16, and Dec. 14, 1899.
(Before the Lo r d Ch a n c e l l o r (Halsbury), Lords Ma c n a g h t e n, Mo r r is, Da v e y, Br a m p t o n, and Ro b e r t s o n.)
Ru a b o n St e a m s h i p Co m p a n y v. Lo n d o n As s u r a n c e, (o)
M a rin e in surance— S h ip docked f o r re p a ir o f sea damage— S urvey w h ile in dock f o r reclassi- fic a tio n -^-A p p o rtio n m e n t o f dock charges and
expenses.
There is no p r in c ip le o f la w w h ich requires a person to c on tribu te to an expenditure in c u rre d by another m erely because he has derived a benefit f r o m it .
(a) Reported by
0
. E . M A ID E N , E a q ., Barrister-at-Law.M ARITIM E LAW CASES.
3 H. of L .] Rua b o n St e a m s h ip Co m p a n y v. Lo n d o n Assur a n c e. [H. of L.I n the course o f a voyage covered by a p o licy o f m a rin e insurance a ship sustained damage by a p e r il in sured against, a n d had to go in to a d ry dock f o r repairs.
W h ile she was in dock the owners took advantage o f the o p p o rtu n ity to have her surveyed f o r reclassification a t L lo y d ’s, though the tim,e f o r such survey was not yet due. The survey d id not cause the ship to be detained in the dock f o r any tim e beyond w h a t was necessary f o r com pleting the repairs.
H e ld (reversing the ju d g m e n t o f the cou rt beldw), th a t the u n d e rw rite rs were liable f o r the whole o f the expenses o f g e tting the ship in to and out o f dock and f o r the dock dues, and th a t there should be no ap po rtionm e nt between them and the owners.
M arine Insurance Company v. China Trans
pacific Steamship Company (55 L . T. Rep. 491;
6 Asp. M a r. L a w Cas. 6 8; 11 A pp . Gas. 573) distin g u ish e d .
Th i s was an appeal from a judgm ent of the C ourt of Appeal (C h itty and C ollins, L .JJ., Sm ith, L .J . dissenting), reported 78 L. T. Rep.
402 ; 8 Asp. M ar. Law Cas. 369; (1898) 1 Q. B.
722, who had affirmed a judgm ent of Mathew, J., reported 77 L . T. Rep. 402 ; 8 Asp. Mar. Law Cas. 346; (1897) 2 Q. B. 456, a t the tria l of the action before him w ithout a ju ry , in the Commer
cial Court.
The appellants were owners of the steamship Ruabon, which they insured under various policies, including a policy effected w ith the respondents fo r 20001, against loss or damage by perils of the sea.
On the 30th Nov. 1895, while the policy was in force, the Ruabon, while on a voyage from KuBtendji to England, was stranded and suffered damage, fo r which i t was adm itted th a t the underwriters were liable. She was accordingly taken to C ardiff and p ut into dry dock fo r the purpose of having the necessary average repairs effected. A fte r the repairs were completed, an average statement was prepared, according to which the respondents were liable to the appel
lants in the sum o f 821 5s. From this, however, the respondents claimed to deduct 21. 5s. fo r the follow ing reasons: W hile the ship was in dry dock, in the course of repairing the damage caused by the stranding, the appellants took the opportunity of calling in L lo yd ’s surveyor to look a t the ship, and ascertain whether any repairs were necessary to enable her to pass her No. 1 L lo yd ’s classification. The surveyor certified th a t no classification repairs were neces
sary, and the ship accordingly passed her classifi
cation. The tim e a t which i t would be necessary fo r the ship to be surveyed had not at th a t date arrived, but by the rules of Llo yd ’s Register the tim e m ight be anticipated, and the owners were at lib e rty to call fo r a survey at the tim e when the ship was in the dry dock.
The appellants contended th a t they did not in fa ct take the ship in to dry dock, and the dock expenses were not incurred fo r the p ur
pose, or w ith the intention, of having the ship surveyed and classified, the appellants only having taken advantage o f her being there to call in the surveyor to inspect her bottom and see whether classification repairs would be necessary, and th a t the tim e during which the dock was used fo r
effecting the underw riters’ repairs was not in any way increased and no additional expenses were incurred by reason thereof.
The respondents contended th a t as the ship in fa ct underwent her classification survey at the same tim e th a t the average repairs were effected the docking expenses ought to be divided between owners and underwriters. They accordingly deducted from the sum of 821. 5s. (fo r which they were liable according to the average statement) the sum of 21. 5s. as representing the proportion o f th a t portion o f the docking expenses which was a ttrib uted to the defendants by the average statement whiuh the defendants contended ought to be borne by owners.
No evidence was called at the tria l, the action being trie d on admissions made by the parties.
The admissions were :—
1. T hat the vessel in fa ct passed her No. 1 Classification Survey at L lo yd ’s Register of B ritis h and Foreign Shipping as required by the rules when she was in dock, the opportunity of her being in dock being taken to see i f reclassifi
cation repairs were necessary.
2. T hat docking was necessary fo r the vessel to pass such survey.
3. That items amounting to 551. were proper charges fo r the work done.
B u t the firs t admission was made subject to the follow ing qualification or lim ita tio n : “ B u t not th a t she went into dock fo r th a t purpose, nor th a t any such repairs were done, nor th a t the tim e had arrived at which i t was necessary fo r her to pass such survey.”
A sim ilar qualification was attached to the second and th ird admission.
Mathew, J. decided in favour o f the under
w riters, the defendants below and respondents in the present appeal, on the ground th a t the case was covered by the decision in the case of The Vancouver(M a rin e In s u ra n c e Com pany v. C h in a Transpacific Steam ship Company, 55 L . T. Rep.
491; 6 Asp. M ar. Law Cas. 6 8; i l App. Cas. 573).
M a rc h 20 and 23.—The case came on fo r argu
ment before the Lord Chancellor (Halsbury), Lords W atson, Macnaghten, and M orris.
Cohen, Q.C. and M ontague L u s h appeared fo r the appellants.
J . W alton , Q.C. and J. A . H a m ilto n fo r the respondents.
A t the conclusion of the arguments th e ir Lord- ships took tim e to consider th e ir judgm ent.
Lord W atson died on the 14th Sept. 1899, and th e ir Lordships requiring fu rth e r argument, the case was reargued on the 16th Nov. before the Lord Chancellor (Halsbury), Lords Macnaghten, M orris, Davey, Bram pton, and Robertson.
Cohen, Q.C. (M ontague L u s h w ith him ), fo r the appellants, contended th a t i t was held in the court below th a t the case was governed by The Van
couver case (u b i sup.), but in th a t case there were two sets of repairs—owner’s repairs as well as underw riter’s repairs— which distinguishes it.
I t was necessary to dock the ship to repair damages which had to be done then, but i t was not necessary th a t she should then go into dock to be surveyed fo r classification. The survey did not affect or delay the repairs in any way. The underwriters are liable to indem nify the owners, and th is lia b ility covers these expenses. The
H. ofL.] Rua b o n St e a m s h ip Co m p a n y v. Lo n d o n As s u r a n c e. [H. of L.
argum ent on the other side m ust go to the extent of saying that, if any incidental advantage is gained by the ship being in dock, such as the opportunity fo r a survey, the expenses must be apportioned. The Vancouver case, so fa r from deciding that, decides the contrary. In th a t case i t was said th a t if any portion of the dock charges fo r the tim e during which the owner’s repairs were going on were borne by the underwriters it would go beyond th e ir indem nity, but the House decided th a t they were to bear a part. The argu
ment was th at the whole expenses were not to be borne by the owner, and i t was so decided, but the decision gave the owner a p ro fit beyond his indem nity. The underwriters undertake to indem
n ify against a ll damage, and the owner need not account fo r an incidental p ro fit.
J. W alton , Q.C. ( /. A . H a m ilto n w ith him ), argued th a t the case was covered by the decision in The Vancouver case. The only difference is th a t in th a t case the ship went in to dock iD the firs t instance fo r owner’s repairs, whereas in this
J. W alton , Q.C. ( /. A . H a m ilto n w ith him ), argued th a t the case was covered by the decision in The Vancouver case. The only difference is th a t in th a t case the ship went in to dock iD the firs t instance fo r owner’s repairs, whereas in this