Ct. o p Ap p. ] Le o n i s St e a m s h i p Co m p a n y Li m. v. Jo s e p h Ra n k Li m. [ Ct. o p Ap p.
P. 56). The rate to be applied here is 200 tons per ru n n in g day, commencing at 5.30 a.m. the 25th Feb. I f a ru n n in g day here means from m id n ig h t to m id n ig h t, how can the tim e begin to ru n a fte r twelve hours from 5.30 p.m. the 24th Feb. P The clause contains a precise stipula
tio n th a t the tim e fo r loading is to count twelve hours after w ritte n notice is given which could be given as late as 6 p.m. As to clause 39, th a t excludes things in te rfe rin g d ire c tly w ith the loading o f the cargo and n o t to things the results" of which only interfere w ith the loading. I t is the immediate cause which is excepted. The delay was caused by the slow overtaking of the arrears o f business which bad accumulated a t an earlier date.
O bstruction on railways and docks does n o t apply to congestion of port. Sm ith, L .J . in Re R ic h a rd s o n v. S a m u e l a n d Go. (8 Asp. M ar. Law Cas. 330 (1897); 77 L . T. Rep. 479; (1898) 1 Q. B . 261, at p. 267) says: “ The contention th a t because the delay arose fro m the loading of the ships in the p o rt in order of th e ir a rriv a l the charterer is exempt cannot prevail, fo r i t is impossible to tre a t delay arising from such a cause as due to accident on the railway, or as coming w ith in the term “ other causes beyond charterers’ control.” A n obstruction in the dock does not apply to a case where a vessel which is n o t in berth has to w ait her tu rn . A n obstruction in docks would be the fo u lin g o f the channel by a dredger which had foundered. A n obstruction on railways would include, fo r example, wash out, broken bridges, or collision, b u t delay in delivery owing to heavy traffic would n o t be an obstruc
tion. There is no word here which can cover the re su lt of insu n ectio n unless i t is rio t, b u t rio t and insurrection are different things. The excep
tions, therefore, in clause 39 do not apply.
S c ru tto n , K .C . and A s h to n , K .C . fo r the defen
dants.—On the 25th Feb. no work was done, and th a t day cannot count as a la y day a t all, fo r a ru n n in g day means a calendar day fro m m id n ig h t to m idnight, and the charterers are entitled to a whole lay day—n o t p a rt of a day :
The K a ty (u h i sup.).
T h a t case and H o u ld e r v. W e ir (10 Asp. Mar. Law Cas. 81 (1905) ; 92 L . T. Rep. 861; (1905) 2 K . B. 267) govern the present case on this point. The vessel did n o t get in to berth u n til the 30fch March. Under the ch arter-party twenty-one days are allowed, which commence fro m th a t time. (1) The vessel, in fact, was hindered by the berths being a ll f u ll w ith other ships in fro n t of her either in berth or in turn.
A ll available berths were tille d u n til the 30th M arch by vessels which had arrived before the L e o n is . N o th in g th a t the ship or the charterers could do could have obtained a berth earlier than the 30th March. T h a t is a sufficient excuse, as i t comes w ith in the words o f the charter-party
“ obstruction in docks or other loading places beyond the control of the charterers.” (2) I f i t is necessary to search fo r the cause of the obstruction, then i t was caused by m ilita ry rio t and strike which had delayed the a rriv a l of cargo a t the port, and so caused the ships to accumulate, re su ltin g in the vessels, including both the L e o n is and those p rio r in a rriva l to her, being delayed.
[ Bi g h a m, J .— The immediate cause of delay was
the crowded state o f the p o rt which prevented b e rth in g : the effective cause was the antecedent m ilita ry revolt. The words in clause 39, “ by reason o f ” and “ through,” are, 1 th in k, identical.
D o those words refer to the existing state o f affairs or to consequences of past events
?J
The charter- p a rty contemplates things happening before the vessel’s a rriva l, fo r cargo on railw ay is referred to and th a t would be p rio r to the vessel’s arrival.The presence of other vessels was an “ obstruction in the loading places beyond the charterers’ con
tro l.” O ther ships in a crowded p o rt preventing berthing fo r a considerable tim e are w ith in the words “ other hindrance beyond charterers’
control ” :
S a ilin g S h ip M ilv e r to n C om pany L im ite d v. Cape Town a n d D is tr ic t G a s lig h t a n d Coke C o m p a n y L im ite d , 1897, 2 Com . Cas 281.
Here there was an actual physical obstruction (i.e , a vessel) in the berth. I n S h a m ro c k S te a m s h ip C o m p a n y L im it e d v. S to re y a n d Go. (reported on appeal, 8 Asp. M ar. Law Cas. 590 (1899); 81 L . T. Rep, 413; 1898, 4 Com. Cas. 80) the charter p a rty excepted “ Commotions by keelmen, pitmen, or any hands s trik in g work . . . or other acts or causes beyond the fre ig h te r’s control which may prevent or delay ” the loading o f the ship. By reason o f the W elsh coal strike there was an accumulation o f vessels at G rim sby when the p la in tiffs ’ vessel arrived there, and the vessel was delayed, and i t was held th a t the charterers were n o t protected by the exceptions in the ch a rte r-p a rty fro m lia b ility fo r demurrage. Bigbam, J., a t p. 82, says:
“ I t was adm itted th a t there was no strike or interference w ith work a t the collieries fro m which the defendants’ coal was being procured, and the fa c t th a t the W elsh coal strike may have caused an unusual number o f ships to seek cargoes at G rim sby has, in any view, no more to do w ith the case than i f the same re su lt had followed from a strike in German, or A u stralian, or Japanese collieries. The g lu t in shipping cannot, I th in k , be b rought w ith in the fa ir meaning of either of the p a rtic u la r or the general words of the excep
tion, the general words having to be read as confined to matters ejusdem g e n eris w ith the p a rticu la r matters mentioned in fro n t o f them .”
T h a t case, which turned on a colliery guarantee, was affirmed by the C ourt o f Appeal (1899, 5 Com.
Cas. 21), b u t L o rd Russell, C.J., at p. 23, and at p. 591 of the report in Asp. M ar. Law Cas. above referred to said : “ Bigham , J. stated th a t . . . apart fro m the colliery guarantee altogether, he would have arrived at the same conclusion in favour of the defendants i f th is colliery guarantee clause had no t been in the charter-party. . . . I f i t were necessary to consider th a t view of the case, I should ce rta in ly require to have i t fu rth e r dis
cussed before I should be prepared to accept the view of the learned judge.” In C r a w fo r d a n d R o w a t v. W ils o n , Sons, a n d Co. (1896, 1 Com.
Cas. 154; affirmed by C ourt o f Appeal at p. 277) a charter-party contained the follo w in g exception :
“ A ll unavoidable accidents or hindrances in . . . loading and fo r discharging the cargo. . . .”
W hen the vessel arrived a t her discharging p o rt a rebellion was in progress, and i t was held th a t the rebellion constituted an “ unavoidable acci
dent or hindrance in discharging the cargo.”
The exceptions in clause 39 apply, and therefore no demurrage is due.
MARITIME LAW CASES.
1 4 5 Ct. o f Ap p/ ] Le o n i s St e a m s h i p Co m p a n y Li m. v. Jo s e p h Ra n k L i m. [ Ct. o f Ap p.J . A . H a m ilto n , K .C . in reply.— O bstruction is a very d ifferent th in g to hindrance. O bstruction is n o t the n a tu ra l result of business operations.
Hindrance has a much w ider meaning than obstruction. O bstruction in loading places is not p rio r occupation of berths in the ordinary course, b u t something th a t arises n o t in o rd in a ry course.
O bstruction on railways would n o t include the shunting of a tra in in to a loop on a single line railw ay to le t an up tra in pass. As to the case o f S h a m ro c k S te a m s h ip C o m p a n y (sup.) Russell, C. J.
in 5 Com. Cas. 21, at p. 23, m ust be either w rongly reported o r he was n o t re fe rrin g to the exception clause. The words in the charter-party, “ i f the cargo cannot be loaded,” govern the clause, and th a t is a very d ifferent th in g from “ i f the cargo cannot be brought to the p o rt.” Clause 39 is intended to excuse the immediate cause of the delay. The strike m ig h t n o t have caused any of the d e la y; had the number of vessels been less, the strike would n o t have effected the position.
On the other hand, a g lu t of vessels m ig h t have occurred w ith o u t a strike. The clause does n o t cover delay caused by remote circumstances.
A m ilita ry insurrection is n o t w ith in the word
“ rio t.” A rio t suggests disorder on the spot, and there is no evidence o f th a t. F u rth e r, an in s u r
rection need n o t be riotous. A3 to the words in clause 39, “ D elivery o f the cargo proved to be intended fo r the steamer,” there is not sufficient evidence th a t the cargo which was delayed was cargo intended fo r the steamship L e o n is .
Bi g h a m, J .— The charter-party provides by clause 23 t h a t : “ Cargo to be loaded a t the rate of 200 tons per ru n n in g day, Sundays and h o li
days excepted. . . .” I f the clause stopped there I th in k th a t ru n n in g days would mean calendar days made up fro m m id n ig h t to mid- n ig h t. The clause, however, continues, “ tim e fo r loading shall commence to count twelve hours after w ritte n notice has been given by the master.” T h a t alters, I th in k , the construction th a t the day commences a t m id n ig h t. I t makes the loading commence a t an hour durin g the tw e n ty-fo u r hours in reference to which tim e twelve hours notice has to be given. The running days contemplated in th is charter-party begin twelve hours a fte r serving the notice of readiness, and therefore mean periods o f tw enty-four hours commencing a t 5.30 a.m. Subject to the question o f the s trike clause the la y days begin a t 5.30 a.m.
on the 25th Feb. The rem aining question, therefore, th a t I have to decide is whether the defendants, the charterers, have brought them selves w ith in the protection of the strike clause.
I th in k th a t they have done so. The words a re :
“ I f the cargo cannot be loaded by reason of riots o r any dispute between masters and men occasioning a strike or lock-out of stevedores
• . . railw ay employes, or other labour connected w ith the w orking, loading, or delivery of the cargo proved to be intended fo r the steamer.”
The evidence satisfies me th a t the working, loading, or delivery of the cargo intended fo r the steamship v. as interfered w ith by rio ts or disputes between masters and men w ith in the meaning of th a t clause. The evidence satisfies me th a t the cargo fo r th is vessel was coming by railway.
The carriage along the railw ay and the dealing w ith the cargo wore delayed by causes coming w ith in the words of the clause, and in th a t way
Vo l. X L , N. S
the cargo was prevented fro m being loaded.
Clause 39 continues: “ I f the cargo cannot be loaded by reason o f riots or any disputes . . . or through obstructions on the railways or in the docks or other loading places beyond the control of charterers, the tim e so lost n o t to be counted as p a rt of the lay days. . . .” W hy should I n o t give to those words th e ir plain meaning ? The only place where loading could take place was obstructed. I give the word
“ obstructed ” its real meaning, and n o t the narrow meaning suggested by M r. H am ilton.
There were other vessels in the berths, or aw ait
in g th e ir tu rn to go in to the berths, over which the parties had no control. Those vessels, in my opinion, did obstruct the L e o n is . I t was by reason of the obstruction which the other vessels caused th a t the L e o n is could not get alongside, and the defendants could n o t p u t th e ir cargo on board. The charterers, I th in k , have brought themselves w ith in both provisions of the strike clause. There must be judgm ent fo r the defendants.
The p la in tiffs appealed.
J . A . H a m ilto n , K .C . and B a ilh a c h e , K .C . fo r the p la in tiffs .— Bigham , J. was wrong in holding th a t the defendants came w ith in both provisions o f clause 39. He did not hold th a t the direct cause of the fa ilu re to load was the strike. He said th a t the congestion on the railw ay was the cause, b u t th a t is too remote. He relied on the word “ obstructions ” in the clause, where i t says,
“ obstructions on the railways or in the docks or other loading places beyond the control of char
terers,” and held w rongly th a t the loading of the vessel was delayed thereby. “ O bstruction ” implies something which ought to be removed, and does not refer to a number of ships which are in the dock w a itin g in tu rn to be loaded.
The case of L a rs e n v. S y lv e s te r a n d Co. (11 Asp.
Mar. Law Cas. 78 (1908) ; 99 L . T. Rep. 94) does n o t apply. There the House of Lords held th a t delay caused by a large number of ships w aiting in tu rn to load before the ship in question was an unavoidable “ hindrance ” which delayed the loading. Hindrance is n o t the same th in g as
“ obstruction.” A ship is “ hindered ” i f i t has to w ait its tu rn to load, b u t i t is not “ obstructed.”
S a ru tto n , K .C . and A s h to n , K .C ., fo r the defen
dants, were n o t called upon to argue.
Va u g h a n Wil jl ia m s, L .J .—I th in k the ju d g m ent of Bigham , J. was quite rig h t. When ho concluded his judgm ent he used these words:
“ The charterers, I th in k , have brought themselves w ith in both provisions o f the strike clause.” I th in k th a t disposes o f th is case. I am n o t prepared to differ from th a t fin a l conclusion of Bigham , J., but, speaking fo r myself, I th in k the stronger of the two points in favour of the charterers is the firs t lim b of the clause. I t is n o t contested th a t in fa c t there was a dispute between masters and men occasioning a strike of railw ay employes, nor th a t there was proved to be a cargo intended fo r the vessel. U nder those cii’cu instances i t seems to have been a question of fa ct which Bigham, J.
had got to decide, and i t was this : Is i t true to say th a t by reason of the strike, as is men
tioned in clause 39 of the charter-party, the cargo proved to be intended fo r the vessel could not be loaded w ith in the lay days ?
U
146
MARITIME LAW CASES.Ct. o fAp f.] B e Cu n a r d St e a m s h i p Co m p a n y.
I t seems to me th a t upon the facts i t is true to say that, by reason o f the strike the cargo intended to be loaded on the vessel could n o t be loaded w ith in the tim e fixed as lay days. M r. H a m ilto n said th a t th is conclusion was wrong in fact. He says th a t, although i t may be true th a t the strike remotely affected the delivery of the cargo and hindered i t in th a t way, i t d id not prevent it. I use the word “ prevent ” as a convenient term fo r expressing the fa ct th a t the cargo could n o t be loaded. I th in k th a t Bigham , J. intended to find th a t by reason of the strike of the railw ay employes th is oargo could n o t be loaded. M r.
H a m ilto n says th a t i f Bigham , J. had meant that, he would n o t have said “ interfered w ith .” To my m ind, his judgm ent, and especially his final words, make i t perfectly clear th a t when he used the word “ interfered ” he intended i t to mean the same th in g as i f he had said “ could n o t be loaded.” Under these circumstances the appeal fails, and I agree th a t i t fa ils on both grounds, although I have only dwelt on the firs t point because I prefer not to a ttem pt to lay down a rule as to the meaning of “ obstruction ” in such a clause as this.
Mo u l t o n, L .J .—I am of the same opinion.
The events which happened make i t clear th a t the case fa lls w ith in the firs t lim b of clause 39, so th a t I need n o t trouble about the second lim b. I n my opinion the cargo could n o t be loaded by reason o f a “ dispute between masters and men occasion
in g a strike . . . o f . . . railw ay em ployes or other labour connected w ith the working, loading, o r delivery o f the cargo proved to be intended fo r the steamer.” Bigham , J found rig h tly th a t th a t was the fact, and therefore the case comes w ith in the exception. W e have had a very able argum ent from M r. H a m ilto n as to the use o f the several words mentioned in th is clause, b u t this is a business document drawn up by business men to be used in business, and i t is not a case to look fo r very refined distinctions. W e have to look at the question fro m a business and common-sense p o in t of view, and ask ourselves was i t the strike w hich stopped the loading o f the vessel ? I have no doubt th a t any business man would say th a t i t was, and I th in k th a t the reasons given b y the House of Lords in L a rs e n v.
S y lv e s te r a n d Co. (sup.) give the views of th a t trib u n a l as to the manner o f regarding documents o f this nature. F o r these reasons I th in k the appeal fails.
Bu c k l e y, L .J .—I agree. I th in k the ju d g ment of B igham , J was quite rig h t.
A p p e a l dism issed.
Solicitors fo r the p la in tiffs , D o w n in g , H a n d c o c k , M id d le to n , and L e w is , agents fo r B o la m , M id d le - to n , and Co., Sunderland.
Solicitors fo r the defendants, P r it c h a r d and Sons, agents fo r H e a rfie ld and L a m b e rt, H u ll.
[ Ch a n. Di v.
H IG H C O U R T OF JU STIC E.
C H A N C E R Y D IV IS IO N . T h u rs d a y , J u n e 25, 1908.
(Before Sw i n f e n Ea d y, J.) B e Cu n a r d St e a m s h ip Co m p a n y, (a) C o m p a n y — D e b e n tu re — S u b s titu te d s e c u rity—
B e g is tr a tio n — C om panies A c t 1900 (63 & 64 V ie t. c. 48), ss. 14, 15—P ra c tic e .
I t is n o t a, c o n ve nien t w a y o f d e c id in g w h e th e r a m o rtg a g e re q u ire s r e g is tr a tio n u n d e r the Com p a n ie s A c t 1900, s. 14, to m a ke a m o tio n u n d e r sect. 15 o f the C o m pa n ie s A c t 1900 f o r leave to exte nd the tim e f o r re g is tr a tio n . E v e n i f such a n o rd e r is m ade on such a m o tio n , i t does n o t decide t h a t r e g is tr a tio n o f the m ortg a g e is i n f a c t necessary. S u ch a p o in t o u g h t to be decided in a n a c tio n p ro p e r ly c o n s titu te d .
Re Harrogate Estates L im ite d (88 L . T . B e p . 8 2; (1903) 1 Ch. 498) n o t fo llo w e d .
Mo t io n.
A pp lica tio n fo r the extension of tim e fo r the registration of a mortgage of a ship as substituted security fo r debentures. The application was made on the p a rt of the debenture-holders. The company took the view th a t re g istra tio n was unnecessary.
K ir b y fo r the applicants.—[Sw i n f e n Ea d y, J. I f I take the view th a t re g istra tio n is unneces
sary, nobody is bound. The proper way is to raise such a p o in t by summons.] In B e H a r r o gate E s ta te s L im it e d (88 L . T. Rep. 82; (1903) 1 Ch. 498) Buckley, J. held i t was unnecessary to register certain debentures, and accordingly refused to extend the tim e fo r registration.
T his application is precisely sim ilar. The sub
stitu te d security requires re g is tra tio n :
C o rn b ro o k B re w e ry C o m p a n y L im i t e d v . L a w D e b e n tu re C o rp o ra tio n L im i t e d , 89 L. T . R e p . 6 8 0 ; (1 9 0 4 ) 1 C h. 1 03.
[Sw i n f e n Ea d y, J.— T h a t decision was given in a properly constituted action. See report (88 L . T. Rep. 722 ; (1903) 2 Ch. 527).]
M a u g h a m fo r the company.
Sw i n f e n Ea d y, J .—1 do n o t see m y way on motion to do more th a n extend the tim e fo r registration. I t is n o t convenient to decide whether registration is necessary or n o t upon such a motion. There would be no d ifficu lty about deciding the p o in t in a properly constituted action.
M a u g h a m .—M ay some words be introduced showing th a t the order is w ith o u t prejudice to the contention of the company th a t registration is unnecessary ? Else i t may be said th a t your Lordship has decided th a t reg istra tio n is necessary, or you would n o t have made the order.
Sw i n f e n Ea d y, J .—N o such contention would be substantiated i f i t was ever made. N o such lim ita tio n o f the order is necessary.
S o lic ito rs : N o rto n , Bose, and C o .; B a w le , Johnstone, and Co., fo r H i l l , D ic k in s o n , and Co., Liverpool.
(a) R e p o rte d b y » . B. Ha m il t o n, E s q ., B a rri» te r-a .t-U iw
MARITIME LAW CASES. 1 4 7 Cu n a r d St e a m s h i p Co m p a n y Li m i t e d v. H e p w o o d. [ Ch a n. Di v. Ch a n. Di v.j
J u ly 8 a n d 18, 1908.
(Before Sw i n f e n Ea d y, J.)
Cu n a r d St e a m s h ip Co m p a n y Li m i t e d v.
He p w o o d. (a)
C o m p a n y — D e b e n tu re stock— C o ve ring deed—<
A n c illa r y m ortg a g e — S u b s titu te d s e c u rity— R e g is tra tio n — C o m pa n ie s A c t 1900 (63 & 64
A n c illa r y m ortg a g e — S u b s titu te d s e c u rity— R e g is tra tio n — C o m pa n ie s A c t 1900 (63 & 64