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ASSUMPSIT for demurrage and freight; some took some silk

carry from

fendant's ac

the margin of

of the counts were special, in which the plain- on board to tiff averred that he was ready and willing, on a cer- Rotterdam to tain day stated in the declaration, to deliver the London on degoods in question. There were likewise common count. On counts for freight and demurrage. The defend- the bill of ants had pleaded the general issue, and a tender of 11. 4s. 3d. which was the amount of the freight and primage.

lading was written: "The clear the goods

consignee to

in 14 running days, after her arrival in port,

or to pay 41. per diem for demurrage." The vessel was ready to deliver on the 3d of October. Defendant applied for, and was ready to receive his goods within the running days; but being undermost in the vessel, delivery could not be made till the 22d. Held that the plaintiff was entitled to recover demurrage, though he did not deliver the goods within the time allowed, being prevented by other goods, belonging to other consignees, which overlaid them.

1815.

HARMAN

v.

The defendants were the consignees of two bales of silk, which had been put on board the plaintiff's vessel to be conveyed from Rotterdam to London. GANDOLPH The bill of lading was in the usual terms; but a and Others. memorandum was written in the margin, "that the consignee was to clear the goods out of the vessel in fourteen running days after her arrival in port, or to pay four pounds per diem for demurrage." The vessel arrived in the port of London, on the 1st of October 1814, and was reported at the Custom House on the 3d. The defendants' broker applied for the goods successively on the 8th, 19th, and 22d. The ship began discharging immediately upon her arrival. On the 14th, five bales of silk were ready to deliver; and two more, the only remaining bales on board, were ready to deliver on the 22d. The running days expired on the 17th. The defendant's goods had been regularly entered at the Custom House, and the warrant for delivery sent down on the 11th of October ; but the order for delivery was not brought till the 22d, between three and four o'clock, when the mate was on shore, the ship having finished working for that day. The 23d of October was Sunday, and on the 24th the silks were finally delivered to the defendants.

It was in evidence, that if all the consignees had been ready to receive their goods they might have been delivered within seven days from the arrival of the vessel. The present action was brought to recover 281. being the amount of seven days' demurrage, from the 17th to the 24th of October.

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

2.

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 281. 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

proceed regularly; he cannot consult the conve-
nience 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,
whether or not the plaintiff be entitled to recover
for the two days, from the 22d to the 24th, indepen-
dent 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 defend-
ants 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 con-
signees, which overlaid them. With respect to the
objection to the declaration, the plaintiff may re-
cover 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.

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Best, serjeant, and Campbell, for plaintiff.

The Solicitor General, and Bosanquet, serjeant, for defendants.

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1815.

HARMAN

v.

GANDOLPH

and Others.

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