Sec. 847. Same subject-"In regular turn."-The words "in regular turn" in a charter party prima facie mean the regular turn of the port of lading. But it may be shown, either from the construction of the charter party itself or by evidence, that the words were intended to have a different meaning, as for instance, to mean the regular turn of a colliery.31 By universal rule vessels arriving first are entitled to priority in loading,32 so that a custom of a local port that a vessel should wait her turn for a berth is valid.33 But a usage, although it may control the mode of performance of a contract, cannot change its intrinsic character; and a vessel which stipulates for a specific right as to the order of being loaded cannot be submitted to usages which leave her no definite rights whatsoever. Thus a provision in a charter party that the vessel should be loaded by a coal company "in turn" must be strictly construed, and is not affected by a practice of the company to give preference to its own vessels, or to sell coal to the local customers from the supply which would otherwise have been available for loading at its docks, to the delay of the chartered vessel.34 When the entire cargo of a vessel is consigned to one person and deliverable to him, and the bill of lading fails to point out the specific wharf or berth at which it is to be discharged, the consignee has a privilege of selecting the place of discharge and the vessel's right to precedence, or what is the same thing, her turn is subject thereto. Nevertheless, this R. (1892) P. 351, 61 L. J. P. 89; 31. Barque Quilpue, Limited, v. Brown, (1904) 2 K. B. 264, 73 L. J. K. B. 596. 32. McArthur Bros. Co. v. 622, 714 Feet of Lumber, 131 Fed. 389. 33. The Viola, 90 Fed. 750; Randall v. Sprague, 74 Fed. 247, 21 C. C. A. 334, 33 U. S. App. 464, reversing 67 Fed. 604; Bartlett v. A Cargo of Lumber, 41 Fed. 890. 34. Donnell v. Amoskeag Mfg. Co., 118 Fed. 10, 55 C. C. A. 178; see also, Railroad Co. v. Church, 58 Fed. 600, 7 C. C. A. 384, 5 U. S. App. 484; The Viola, 90 Fed. 750. does not give the consignee an arbitrary right, but only one which is just and reasonable. Where several vessels are to load or discharge cargoes of the same generic class, they are apparently entitled, in their turn, to the first berths available, but it may be shown that the particular circumstances were such as reasonably justified the consignee directing otherwise.35 Sec. 848. Same subject-Necessity of notice of vessel's readiness.-Lay days at the port of loading do not begin to run against the charterer until the master gives notice to the charterer that his vessel is ready to receive cargo.36 Such a notice can properly be given only after the ship is ready and at her proper place for loading.37 In England the same rule does not apply at the port of discharge, and the master is not bound to notify the charterers or consignees of the arrival of the goods.38 But in the United States, as has been seen in discussing delivery by carriers by water, notice to the charterers or consignees is necessary even at the port of discharge. Notice, however, is usually stipulated for in the charter party or bill of lading. Notice then. imposes on the master the duty to bring his vessel to the berth given her, and for any delay in so doing, not arising from the unsuitableness of the berth or its approaches, or fault of the consignee, he is responsible and must bear the loss.39 If time is lost through the arrival of a vessel on a legal half holiday, and the vessel is unable to notify the consignee at once because his place of business is closed, the consignee cannot be held liable for demurrage for such delay unless expressly stipulated for in the charter party. There is no obligation on the part of a consignee to keep his office open on a legal half holiday.40 35. Evans v. Blair, 114 Fed. 616, 159; Houlder v. General Steam 52 C. C. A. 396. Nav. Co., 3 F. & F. 170; Nelson v. 36. Stanton v. Austin, L. R. 7 Dahl, 12 Ch. D. 583. Sec. 849. Same subject-Where ship must be lying.—The cases are not in harmony on the question of just where the ship ought to be lying in order for the lay days to commence. The earlier cases held with great unanimity that the vessel must be in a position where the charterer could begin to do his part of the work. Later cases, however, have held that if the voyage is to commence in such a place "as a port or dock, the shipowner may place his ship at the disposition of the charterer, when the ship arrives at that named place, and so far as she is concerned is ready to load, though she is not then in the particular part of the port or dock in which the particular cargo is to be loaded."42 A still later case seems to return to the earlier and better rule and holds that "if by a charter party it is agreed that a ship shall go to a port and there unload, she must, unless otherwise ordered, go to the customary place of discharge in that port. If there is only one customary place of discharge at a port and when the vessel arrives that place is occupied, the vessel is not 'ready to discharge,' and the time for delivery does not commence within the meaning of a clause in a charter party to the effect that 'time for delivery to count when steamer is ready to discharge.' "43 If the contract is for shipping generally to a certain port, the conditions of delivery at the public docks would doubtless have to be taken into consideration; but when the shipment is to a particular party having known special facilities for unloading, that fact enters into the contract, and determines the question of reasonableness in the discharge of the cargo.4 44 Where the obligation of the vessel is to deliver her cargo at a particular dock, the voyage is not completed, nor is her obligation discharged, until she reaches the designated place Veagh, 4 Ex. D. at p. 268. 43. Sanders v. Jenkins, (1897) 41. Brereton v. Chapman, 7 p. 582; see also, Davies v. McBing. 559; Brown v. Johnson, 10 M. & W. 331; Kell v. Anderson, 10 M. & W. 498; see also, Gabler v. McChesney, 70 N. Y. Supp. 195, 60 App. Div. 590. 1 Q. B. 93, 66 L. J. Q. B. 40. 42. Nelson v. Dahl, 12 Ch. D. at 466, 55 U. S. App. 181. of discharge, ready to deliver her cargo. The rule is not applicable, however, if delay in reaching the designated dock is attributable to the active fault of the charterer or the owner of the cargo.45 Sec. 850. Same subject-Vessel to proceed to berth "as ordered."When the charter party provides that the cargo is to be delivered at any safe berth "as ordered" on arrival in the dock, the words "as ordered" would have no meaning unless they gave the charterer an option to settle the end of the voyage. In such case the option is in the choice of a berth, and the carrying voyage ends, not on the arrival of the vessel in the dock, but on her arrival at a berth as ordered.46 If a strike occurs among the dock laborers after the order has been given to go to a certain berth, the charterers will not be liable for a delay occasioned by their refusal for some time to order the vessel to another berth not affected by the strike.47 Nor will they be liable for a delay occasioned by the ship being unable to proceed to the designated berth owing to the crowded condition of the dock.48 A designation by a charterer of a berth for a vessel, on notice of its arrival in port, is given within a reasonable time when delivered within two or three hours from such notice of arrival.49 The master of a vessel, on learning of obstructions likely to injure his vessel at her designated berth, is justified in refusing to go to such berth until it is made safe, and may hold the consignee for the delay.50 But demurrage cannot be had where the vessel is knowingly so overloaded by the carrier that she could not reach the dock selected by the consignee with the 45. In re 2,098 Tons of Coal, 135 Fed. 317, 67 C. C. A. 671. 46. Tharsis Sulphur & Copper Co. v. Morel Brothers & Co., (1891) 2 Q. B. 647, 61 L. J. Q. B. 11; Sanders v. Jenkins, (1897) 1 Q. B. 93, 66 L. J. Q. B. 40. 47. Bulman v. Dickson, (1894) 1 Q. B. 179. 48. Tharsis Sulphur & Copper Co. v. Morel Brothers & Co., supra. 49. The St. Bernard, 105 Fed. 994. 50. Sutton v. Housatonic R. Co., 45 Fed. 507. load placed on her. The carrier cannot, in such case, cast the burden of his own negligence on the consignee or shipper.51 Sec. 851. Accident to vessel while waiting on demurrage.— If the charterer has agreed to provide a quay berth on arrival of the vessel at the port of loading, and fails to do so, and an accident happens to the vessel while waiting on demurrage, necessitating her going to another port for repairs, the obligation to pay demurrage is suspended while the vessel is away for repairs, but the running of the lay days is resumed when the vessel returns. The fact that a quay berth falls vacant during her absence which would otherwise have been given to her makes no difference, and the charterer is liable to pay demurrage from the date of her return until the loading is completed.52 Sec. 852. Charterer's liability for delays after loading is completed. A charterer is not liable for delay which occurs without his fault after the loading has been completed. Thus he would not be liable for demurrage where the ship was frozen in while being loaded, and was detained on that account for some time after the loading was completed.53 But demurrage for detention beyond a reasonable time in loading is not to be refused because, even if loaded on time, the ship would have been prevented by ice from sailing earlier than she did.54 Sec. 853. Effect of consignee's acceptance of goods as creating liability for demurrage. While a consignee, by accepting the goods consigned to him under a bill of lading by which the person receiving the goods is to pay freight, is held bound by an implied contract to pay the freight, yet, unless the bill of lading, either itself or by reference to another instrument, contains also an express provision providing for the 51. Ronan v. 155,453 Feet of Lumber, 131 Fed. 345. 52. Tyne & Blyth Shipping Co. v. Leech, Harrison & Forwood, (1900) 2 Q. B. 12, 69 L. J. Q. B. 353, 5 Com'l Cas. 155. 53. Pringle v Mollett, 6 M. & W. 80. 54. Randall v. Sprague, 74 Fed. 247, 21 C. C. A. 334, 33 U. S. App. 464, reversing 67 Fed. 604. |