1815. HARMAN v. and Others. Best, serjeant, and Campbell, for the Plaintiff, relied upon Leer v. Yates, 3 Taunt. 387.They said this point had already been decided. It was too much the practice for the consignees of GANDOLPH goods to convert these general ships into warehouses. To prevent this injury they guard themselves by a penalty. They hold the same language to all the consignees-You must clear the vessel within fourteen running days or pay a certain sum for demurrage: though the silks are at the bottom of the vessel, you must, notwithstanding, clear them out; some goods must necessarily be at the bottom, and if one consignee be delayed by the negligence of another, and thereby prevented from getting his goods, and obliged, on account of such delay, to pay demurrage to the owners of the vessel, he must seek his remedy against the person by whose default he has been impeded. In the present case, the order to deliver was not given till the 22d. The Solicitor General and Bosanquet, serjeant, for the defendants.-The order for delivery is never sent till the goods are ready to deliver. The consignees have done every thing in their power; they demanded the goods on the 8th, again on the 19th, and it did not appear that the plaintiff was ready to deliver till the 22d. The case of Leer v. Yates might be rightly decided; but there was a strong feeling against it in the mercantile world. It is true, if a merchant covenant to freight a whole ship, and unload her in a certain time, he covenants against all accidents; and whether the ship be delayed by his own default, or by circumstances 1815. HARMAN v. which he cannot controul, he is responsible for his breach of covenant. But it is otherwise with a general ship, where he is one of many consignees; GANDOLPH and the hardship is extreme in the present case, and Others. where the defendants are owners of two bales of silk, the whole freight of which amounts only to 11. 4s. 3d., and the demurrage claimed is 28. In the declaration, moreover, it is averred that the plaintiff was ready to deliver, &c. The evidence is against this allegation. GIBBS, C. J.-The consignee, by taking to the goods, contracts with the owners of the vessel to perform the terms upon which they have undertaken to convey and deliver them. Those terms are expressed in the bill of lading; and the defendants, by claiming and receiving the silks, have acceded to them. The captain was ready to deliver his cargo on the 3d of October. If all the consignees had been ready, he might have cleared the vessel within seven days. It appears, however, that she was not cleared till the 24th. The consignees of such goods which are at the bottom of the vessel cannot receive them till the latter period of delivery. Each consignee undertakes to clear away his goods within a certain time; and although by the default of others he is prevented from so doing, he is liable notwithstanding to demurrage by the terms of the contract, unless the delay be occasioned by the default of the captain or his crew. Though the defendants were ready to receive the silk sooner, it could not be delivered sooner, because other consignees had neglected to take away their part of the cargo. The plaintiff must 1815. HARMAN v. and Others. proceed regularly; he cannot consult the convenience of one consignee in preference of another. The principle of this case is already decided in Leer v. Yates; but it will be for the jury to say, GANDOLPH whether or not the plaintiff be entitled to recover for the two days, from the 22d to the 24th, independent of any question of law; for it appears that, upon the forenoon of that day, the silks were ready to be delivered, and it was the fault of the defendants that they were not delivered on the 22d. But, in point of law, I think the plaintiff is entitled to recover though he did not deliver the goods, being prevented by other goods, belonging to other consignees, which overlaid them. With respect to the objection to the declaration, the plaintiff may recover upon the common counts for demurrage. The counsel for the defendants pressed his Lordship to direct the jury to find a special verdict; but he declined so doing, and recommended a bill of exceptions, if they were desirous to have the point upon the record, which was accordingly tendered. The jury found for the plaintiff demurrage for the whole seven days. Verdict for defendants on the tender. Best, serjeant, and Campbell, for plaintiff. The Solicitor General, and Bosanquet, serjeant, for defendants. [Attornies, Lowless and Co., and Crowder and Co.] 1815. HARMAN GANDOLPH The decision in Leer v. Yates seems to stand upon legal, and, properly understood, upon equitable principles. The hard and Others. ship is incidental, and one of those rigours to which law, from the necessary generality of its provisions, is by its nature subject. The consignee, it is said, is ready to receive the goods in the proper time; he applies for them, and by the neglect of others, for whose conduct he did not stipulate, he cannot obtain them. The running days expire, and he is called upon to pay a heavy charge for demurrage. It is added, that this delay, so common, and indeed almost necessary in the port of London, must have been in contemplation of the ship-owner, and, therefore, that the sufferance of it is an implied condition of his contract; that this inconvenience, and of course the implied condition, applies still more forcibly to a general ship; it is a misfortune pressing equally on both parties, the freighters and the owner. There is no ground for the presumption of a default in the consignee. Why should he be made responsible where he has no controul? Still less, why should he be made responsible for the default of all other consignees in the general lading? If an injury, why should not the owner partition it amongst the several parties according to their respective interests? Why, indeed, is the owner entitled to any compensation? Each party performs his duty in the contract. The consignee claims within the proper time, and the owner delivers the goods as soon as he is able. In order to entitle himself to compensation for demurrage, he must claim under an express or implied condition, or by some positive default on the part of the consignees. With respect to default, none is pretended; and with regard to the contract, it is nudum pactum. The words which are supposed to create the obligation are the words of the captain, the servant of the owner, who signs the bill of lading, and delivers it to the shipper. The defendant does not sign it; but it is said, that by accepting this bill of lading, and claiming the goods under it, he accedes to the terms; and that therefore this action may be sustained on the general count for demurrage. It cannot be disputed that the acceptance of the bill of lading binds the consignee to pay the freight, and any demurrage occasioned by wilfulness or neglect; but can it bind him to any terms which the owner chooses to insert? At all events these terms are subject to an equitable construction, and cannot in any way be extended to what is manifestly unreasonable, that of rendering one consignee responsible for the default of another, for whom he does not stipulate, and over whom he has no controul. Again, before the owner can call upon the consignee to answer in damages for a nonfeasance, of what he morally could not do, he, the owner, must shew that he was ready to deliver; that the goods were in a situation to be capable of delivery at the time. This at least is a concurrent, if not a condition precedent. The answer to this argument seems to be in substance: 1st. That between the owner of the vessel and the consignee of the goods there is no necessity for an express contract. Though there be no original privity of contract between the parties, yet the taking of the goods from the ship under the bill of lading is evidence of an agreement, in ipso tempore, to pay the freight, &c., according to the terms of the bill of lading. That the bill of lading indeed is not signed by the consignee, but it is delivered to the shipper abroad, and by him presumed to be transmitted in due mercantile course to the consignee at home; by taking to the goods, he accedes to the terms of the bills of lading under which he takes them, and concludes the contract by executing it. Dobbin v. Thornton, 6 Esp. 16. Cock v. Taylor, 13 East, 399. 2. In ordinary cases, where demurrage is claimed, the question is twofold. Did the delay arise from the default of the freighter? Was it the act, or delictum, of the owner himself? But there is a middle case, that in which neither is in default; and in which the question is, which party is bound by the incidents of chance, or of any cause not within his own controul. In this case (which is the present) as the loss must be sustained by one party, the inquiry is, who is to bear it? And here we must have recourse to general principles; a person who hires any chattel, whether it be a horse, a house, or a ship, may be said to detain it, if at the end of the stipulated time he does not return it to the owner. He is responsible for all incidental circumstances which may prevent him from 1815. HARMAN v. GANDOLPH and Others. |