78 MARITIME LAW OASES*

H . o f L .] ^{L a b s e n v . S}y l v b s t e b a n d Co. [ H . o f L .

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E N G L A N D .

C h a rte r -p a r ty—E x c e p tio n s—“ H in d rc in c e o f w h a t h in d soever p re v e n tin g o r d e la y in g w o rk in g , lo a d in g , o r s h ip p in g o f cargo ” — Ejusdem generis.

A s h ip b e lo n g in g to the a p p e lla n t was d e la y e d i n o b ta in in g a b e rth i n h e r lo a d in g p o rt, a n d conse­

q u e n tly h e r lo a d in g was n o t com pleted w it h in the la y d a y s a llo w e d by the c h a rte r -p a r ty .

T he c h a rte r -p a r ty c o n ta in e d a n e x e m p tio n fro m , l i a b i l i t y “ a r is in g f r o m f r o s t , flo o d , s trik e s , lo c k ­ outs, o r a n y o th e r u n a v o id a b le accid e n ts o r h in d ra n c e s o f w h a t k in d soever beyond th e ir c o n tro l e ith e r p re v e n tin g o r d e la y in g the ^w o rkm g, lo a d in g , o r s h ip p in g o f the s a id cargo.

H e ld ( a ffirm in g the ju d g m e n t o f the c o u rt below) th a t “ h in d ra n c e s o f w h a t k in d soever ’ c o u ld n o t be r e s tric te d to h in d ra n c e s ejusdem generis w it h those p re v io u s ly e n u m e ra te d , a n d t h a t the c h a rte re rs w ere n o t lia b le f o r the d e la y ^ caused b y the c row de d state o f the dock, w h ic h was

beyond t h e ir c o n tro l.

Ap p e a l fro m a judgm ent of tbe C ourt of Appeal (Yaughan W illia m s, Farw ell, and Kennedy, L .J J .), who had affirmed a ju d g m e n t of the D ivisional C o u rt (P h illim o re and W alton, J J . ) reversing a decision of the C ounty C ourt judge at H u ll in favour of the appellant, the p la in tiff below.

The defendants were the charterers of a steam­

ship called the M a u r a n g e r , and the action was b ro u g h t by the owner o f the vessel to recover 91Z. 5s. fo r 146 hours’ demurrage of th a t ship at 12s 6fit. an hour under a charter-party dated the 4 th J u ly 1907, entered in to by the defendants.

B y clause 5 A of the charter-party the cargo was to be loaded w ith in e ighty-four ru n n in g hours (certain holidays excepted), tim e to count when w ritte n notice of readiness to receive the entire cargo was given to the staithm an or colliery agent, or handed in to his office between the hours of six a.m. and noon; demurrage to be at the rate ol 12s. 6d. per ru n n in g hour. “ The parties hereto m u tu a lly exempt each other fro m a ll lia b ility arising fro m frosts, floods, strikes, lock-outs or workmen, disputes between master and men, and any other unavoidable accidents or hindrances of what k in d soever beyond th e ir control, prevent­

in g or delaying the working, loading, o r shipping of the said cargo occurring on or a fte r the date o f th is charter u n til the actual completion of the

loading.” _

The M a u r a n g e r arrived in dock a t G rim sby at 7 a.m. on the 18th Ju ly , to receive a cargo o f coal, and w ritte n notice th a t she was ready to receive her cargo was given at 9 a.m. I t was common ground th a t her la y days under the charter-party then began, and subject to any exception in the charter- p a rty they would expire at 9 p.m. on the 23rd

J u ly . __ J_______

(a) Reported b y Ph i l i p B. Du r n fo r d, Ed w a r d J. M . Ch a p l in, and C. E. Ma l d e n, E sqrs., B a rristers-a t-L a w .

The actual loading d id n o t begin u n til the 27th J u ly a t 9 p.m., and finished on the 29th J uly

a t 10.30 a.m. , „ , . ,

There were six tip s at the dock, at one of which the ship was bound to load. I t was adm itted th a t du rin g the whole tim e the charterers had coal available i f they had been able to get the ship to a tip , and also th a t the dock was entirely under the control of the Great C entral R ailw ay Company, who owned it, and according to whose regulations ships had to take th e ir proper tu r n at

the berths. . , ,

The reason fo r the delay m loading was th a t there was a g lu t in the dock at th a t period, and some th ir ty ships were w aiting to be loaded, someot those im m ediately p rio r in tu rn to the M a u r a n g e r being also vessels chartered by the defendants.

O f the to ta l delay, fo u r days were accounted fo r b y the other vessels chartered b y the defendants, b u t i t did n o t appear either th a t they had sent more vessels to the dock than was th e ir custom, or th a t the presence of th e ir vessels would in o rdinary circumstances have produced congestion at the dock.

The learned judge held th a t m the circum ­ stances the defendants had n o t brought them- selves w ith in the exception in clause 5 A ot the charter-party, and th a t the word “ hindrances m ust be construed as meaning hindrances ot a kind.

e jusdem g e n eris w ith those previously mentioned.

He therefore gave ju dgm ent fo r the p la in tiff.

The defendants appealed.

S c ru tto n , K .C . and M c K in n o n fo r the defen­

dants.—The learned judge was wrong in holding th a t the defendants had n o t b rought themselves w ith in the meaning of the exception. Ih e g lu t a t the dock was a hindrance of the shipping beyond the control o f the charterers w ith in the meaning of clause 5. A lth o u g h the contrary was held by Bigham , J. in s im ila r circumstances in S h a m ro c k S te a m s h ip C o m p a n y v. S to re y a n d Co. (8 Asp. M ar. Law Gas. 590 (1899); 81 L . T.

Rep. 413; 4 Com. Gas. 80), th a t view was n o t e n tire ly accepted by the C ourt of Appeal, who affirmed the decision on another ground. The m a tte r is therefore open fo r th is court to decide. I n S a ilin g S h ip M ilv e r to n C o m p a n y L im it e d v. Cape T o w n a n d D is t r ic t Gas L ig h t a n d Coke C o m p a n y L im it e d (2 Com. Cas. 281) i t was held by Mathew, J. th a t the words “ hindrance beyond charterers’ control ” covered such a case as the present. The words here are “ hindrances of w hat k in d soever,” w hich are clearly wide enough to protect the defendants. He also referred to

Crawford a n d B o w a t v. Wilson, Sons a n d Co., 1 Com. Caa. 154.

B a ilh a c h e fo r the p la in tiff.— The decision of the learned j udge was rig h t. The cardinal fa c t here is th a t th is is a fixed la y day charter-party— viz., eighty-four ru n n in g hours. T h a t being so, when the vessel arrived a t G rim sby and w ritte n notice of her readiness to load was given, the charterers obligation to load w ith in eig h ty-fo u r hours became im perative unless they can b rin g themselves w ith in the exception. I t is suggested th a t the effect of clause 5 is to make the charter-party one which puts the ris k of g etting to the tip on the vessel. T h a t would be an e n tire ly different k in d of charter-party, and such a construction cannot be arrived a t w ith o u t g ivin g too great w eight to the exceptions. The g lu t in the dock

MARITIME LAW CASES.

was n o t unexpected by the parties. They knew of it, and w ith th a t knowledge the charterers contracted to load w ith in e ig h ty-fo u r ru n n in g hours fro m the tim e o f notice. The m aterial exception in clause 5 relates to the operation o f shipping, and consequently the exception does n o t apply u n til the ship is under the tip . F u rth e r, to b rin g the defendants w ith in the exception the hindrance m ust be one ejusdem g e neris w ith those specified. The hindrance here was n o t beyond the charterers’ control. As to fo u r days the delay was occasioned by the presence o f other ships chartered by the defendants. I f a charterer contracts to load a ship w ith in a fixed tim e he m ust do so unless he can b rin g him self w ith in the exception, and th a t exception m ust have n o th in g to do w ith himself. He referred to

Ogmore S team ship C o m p a n y v. B o rn e r a n d Co., 6 Com. Cas. 104 ;

Aktieselskahet Ing le w o o d v. M illa r 's K a r r i a n d J a r ra h Forests L im ite d , 9 A sp. M a r. L a w Cas.

411 ; 8 Com . Cas. 197 ;

R ichardson s a n d M . S am u el a n d Co., 8 A sp. M a r.

L a w Cas. 330 (1 8 9 7 ); 77 L . T . Rep. 479 ; (1898) 1 Q. B . 2 6 1 ;

A llis o n a n d Co. v. Rose R ichards, 20 T im es L . R ep.

584.

M c K in n o n in reply.

Ph i l l i m o r e, J .— I am o f opinion th a t th is appeal should be allowed. The question turns upon the construction o f clause 5 A of this charter. W h a t happened was th a t the ship arrived and w ritte n notice o f her readiness to receive her cargo was given, and she was prepared to move to the tip . There are six tips a t the dock, and these tip s are under the control of the Great C entral R ailw ay Company, acting through its dock master. A ship cannot load except at one o f the tips, and there were a great number of ships w a itin g to load before the M a u ra n g e r. The rule o f the railw ay company is chat the ships tnust load in th e ir tu rn , and th is ship was detained w a itin g fo r her tu rn fo r something like twelve days, and the p la in tiff claimed and recovered twelve days’ demurrage. The defendants, the charterers, adm it th a t tim e began to ru n fro m the moment th a t notice was given of readiness to receive the cargo. They are not e n title d to deduct the tim e necessary fo r moving to the tip b u t they rely upon the exception in the charter, and say th a t they could n o t load because there was “ an unavoidable hindrance beyond th e ir c o n tro l” preventing the shipping of the cargo, and th a t such hindrance occurred a t or a fte r the date of the charter. The C ounty C ourt judge uas taken the view th a t the exception does not aPPly, and i t has been contended on behalf o f the p la in tiff th a t the exception has no application, because (1) there is a specific contract to load this ship w ith in a certain number of hours, and th a t i t requires very strong reasons to obviate the necessity fo r this, and th a t such a clause of exemption as th is contract contains is n o t to be relied upon, because very stropg words are necessary to b rin g the parties w ith in the exemp­

l i * 11 ; (2) the words “ other . . . hindrances . what. kin d soever ” mean other hindrances ejusdem generis w ith those specially m entioned;

m) th is was n o t a hindrance which “ prevented or delayed ” the loading o f the ship ; and (4) i t did n° t arise fro m causes beyond the charterer’s

control. I endeavoured to appreciate the p o in t th a t was made w ith so much force, th a t we are to look at th is as being a fixed day or hour charter, and to read th a t as the governing clause, and look, as i t were, g ru d g in g ly a t the exception.

I endeavoured to appreciate that, b u t I th in k M r.

Bailhache overstated the force of th a t contention.

The parties contract as much fo r the exemption as fo r the loading or tim e of a rrivin g , and we m ust look at the whole clause. Looking at i t in this way, is n o t th is a hindrance ? W h a t has hap­

pened ? Owing to an uncommon state of things, which the parties m ig h t on the facts have contem­

plated to some extent, b u t n o t to the extent which happened— th a t is to say, owing to something which need n o t have happened— there has been a delay in the steamer reaching the tip . She has been hindered n o t merely by a rule of the dock company, b u t by the presence of other vessels.

I f there had been no rule, and the other vessels were there, i t m ig h t have been a question of racing to the berth, and then the physical occupa­

tio n of the vessels found there would have been a hindrance. I t is none the less a hindrance because the order in which the obstructing vessels are to approach the berth is regulated by the dock company. I t seems to me, therefore, th a t th is is brought w ith in the meaning of the word hindrance. Then on the suggestion th a t the hindrance m ust be one ejusdem ge n eris w ith those causes mentioned earlier, I have to say that, while not appreciating myself the extent to which th a t doctrine of ejusdem ge n eris has been carried, but, intending to follow i t as fa r as i t has been applied, i t does n o t cover th is case. There m ust be words by which people can express th a t they mean th a t a ll accidents and hindrances are to be exempted, and they must be e n titled i f they please to p u t down such as occur to them, and to p u t in a clause to save, i f n o th in g else, mental trouble or descriptive or im aginative trouble which shall cover any other conceivable accident; and i t is only a question of d ra ftin g how they express it, There are cases both ways upon what is enough to show th a t a ll other accidents and hindrances are to be excluded, and what is n o t enough to show this in te n tio n ; b u t even i f the decisions do n o t cover this case, i t seems to me pla in th a t, when people say

“ accidents or hindrances o f what k in d so ever,”

they mean th a t which they appear to say— th a t is, a ll other accidents or hindrances, and n o t merely those ejusdem g e neris w ith those men­

tioned. Therefore i t seems to me th a t the parties here must be held to have contemplated th a t a ll inevitable hindrances preventing or delaying the shipping of the cargo should be exceptions fro m the obligation to load w ith in a certain time.

H a vin g got so fa r, I have to consider whether th is was a hindrance preventing or delaying the shipping of the cargo. On the whole, I am of opinion th a t i t was. The p la in tiffs are in this dilemma. I f they do not p u t th e ir claim fro m the tim e when they delivered notice o f readi­

ness to receive the cargo, but only fro m the tim e when they are alongside the berth, th e ir hours do n o t begin to ru n u n til then, and there is no demurrage. I f they p u t th e ir claim from the tim e when they handed in th e ir w ritte n notice, we have to consider whether or not i t is a hindrance to the shipping of the cargo th a t the vessel should n o t be in a position to receive her

8 0 m a r i t i m e l a w c a s e s

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L A R S E N V. S Y L V E S T E R A N D Co.

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cargo. I p u t examples w ith a view to seeing how fa r the contention of the p la in tiff would go. I t the contract fo r the charter has been entered in to , and quite w ith o u t the fa u lt of either party, an obstruction occurs, possibly even after, or while, the ship is coming in to the dock, such an obstruction, fo r instance, as would be caused by the fa llin g o f a balk of tim b e r between the ship and the berth, and i t takes fro m tw enty-four to fo rty -e ig h t hours to remove it, and i f i t bad not been fo r the obstruction the ship would be in the dock, would n o t th a t be a hindrance ? I t seems to me th a t i t would. I do not th in k i t is possible to say more about it. I t seems to me, therefore, th a t th is was a hindrance delaying the shipping.

Therefore the defendants have got thus fa r : th a t th is was a hindrance delaying the shipping of the cargo which occurred on or a lte r the date of the charter. I can conceive o f cases where there m ig h t be delays which would n o t cause

J 1

hindrance w ith in the meaning of this charter I t may be th a t fo r the economical and Prosperous w o rkin g of th is dock i t is necessary th a t the berths should always be fu ll, and the dock owners w ould be always le ttin g fresh vessels in to the dock, w hich m ig h t fin d th a t a t the moment a ll the berths were occupied, and they m ig h t accord­

in g ly have to w a it fo r hours or days befoie they could get to the slip. Such contingencies as th a t w ould n o t be hindrances w ith in the meaning of this clause. B u t, i f i t be a question of degree there can be no doubt th a t such a delay as there was on th is occasion was a hindrance, th e n comes the last p o in t made, which relates to fo u i days only of the twelve days delay. The p o in t is th is and i t is w orth consideration, th a t, as regards these fo u r days, the hindrance was n o t unavoid­

able or beyond the control of the charterers, because i t was due to the fa c t th a t they had introduced other vessels in to the dock to be loaded which had been chartered by them, and which took precedence of th is pa rtic u la r ship, and to th a t extent delayed the la tte r. I he facts as to this are n o t very clear, and i f the burden o proof on th is p o in t shifted fro m ^ e defen­

dants to the p la in tiff i t may be said th a t he did n o t sufficiently clearly prove the facts alleged. As fa r as 1 can understand, a ll he lelies on is the bare fa c t th a t there were other vessels chartered by the defendants which i f they had n o t been there would n o t have taken up the berths, and th e ir absence would have enabled this ship to get to the berth earlier. W hethei they came in w ith a greater number of ships than ffie dock could have* dealt w ith in the ordinary course of things is n o t proved, nor when the contracts chartering the ships were made. W e do> not^know whether the contracts were made w ith a. know ledge th a t they would create a g lu t m the docE.

The one fa c t we know is th a t the defendants had n o t loaded more ships th a n was usual w ith them, b u t ra ther fewer, so th a t th e ir co n trib u tio n to the g lu t i f they contributed a t all, was smaller than usual. I am not prepared to say at th is moment th a t i f shipowners A., B., and 0 ., by sending a great num ber of ships in to the dock, cause the business of the dock to become in arrears, and shipowner D. sends in no more ships than could be dealt w ith in the ordinary course, and no other ships come in w hile his are there, and the delay is occasioned by the fa c t th a t when his ship comes in the arrears of the form er day have n o t been

[H . o f L . disposed of, in these circumstances I am n o t sure th a t he contributes to the g lu t a t all, and I am n o t prepared to say th a t he has him self ^m deied the loading of th is other ship. I f i t could be proved th a t he had foreseen when he chartered the other ships th a t these ships, or these ships plus the o rdinary ships chartered, would create a g lu t in the docs which would postpone the loading of th is vessel, other considerations m ig h t apply.

On the facts before us I th in k the p la in tiff s case comes fa r short of displacing the p r i m a fa c ie proof offered by the defendants th a t th is was a hindrance beyond th e ir control. I am therefore, of opinion th a t the appeal m ust he

^ W a l t o n, J .—I agree th a t the appeal m ust be allowed. B y the charter-party the tim e allowed fo r loading the vessel was e ighty-four hours. I he tim e actually occupied was thirty-seven hours Prom the tim e when the vessel was ready to load u n til the loading was completed was, at day rate, twelve days longer than the tb ir y- seven hours. T h a t is to say, there was twelve days’ delay. How was th a t delay caused? I t was caused by a g lu t of vessels m the G rim sby Dock. I t was undoubtedly a hindrance which caused th a t delay The exception relied upon by the charterers is “ any othe.r unavoidable ac^ e n t s or hindrances of w hat k in d so ever beyond th e ir control preventing or delaying the . • ■ shipping of the said cargo. I n the firs t place H was said by the p la in tiff th a t although there t r thisSadelayy cause^ as I have stated i t was n ^ t a hindrance w ith in the meaning of the chartei p a rty because the word “ hindrances m ust be read in connection w ith the previous words

“ frosts floods,” & c„ and th a t the meaning of

“ h indrance” m ust be confined to hindrances which are sim ila r to the causes of delay mentioned in the earHer clause. I t is said th a t i t comes w ith in the ru le of construction sometimes referred

“ h indrance” m ust be confined to hindrances which are sim ila r to the causes of delay mentioned in the earHer clause. I t is said th a t i t comes w ith in the ru le of construction sometimes referred