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(3 El. and El. 495), which was an action on a precisely similar clause for damages for detention at the port of loading, the Queen's Bench gave judgment for the Defendant upon the same ground; but in Pederson v. Lotinga (28 L.T. 267), the action being brought for five days' demurrage at the port of loading, upon a charter-party containing the following demurrage clause : “ Fourteen days to be allowed for loading in the Tyne, or the captain to receive £5 per day for demurrage day by day; and as to unloading, one working day per keel and one-half to be allowed to the freight for unloading, demurrage on and above the said lying days at £5 per day;” and “the charter-party being concluded by L. on behalf of another party, it is agreed that all liability of the former shall cease as soon as he has shipped the cargo, the owners and master agreeing to rest solely on their lien on the cargo for freight and demurrage,” the Queen's Bench held that the demurrage referred to in the clause conferring the lien, was the demurrage at the port of discharge, and that the clause of cesser did not divest the Defendant's liability for demurrage already incurred, which was to accrue de die in diem. Judgment was therefore given for the Plaintiff.
The next case in order of decision was Bannister v. Breslauer, (L.R. 2, C.P. 497), which was an action brought against the charterer for delay in loading the vessel, upon a charter-party containing the clause" the charterer's liability on this charter to cease when the cargo is shipped, provided the same is worth the freight on arrival at the port of discharge; the captain having an absolute lien on it for freight, dead. freight, and demurrage, which he, or owner, shall be bound to exercise.” No demurrage days were given in the charterparty, but the “cargo to be loaded and discharged with all dispatch.” The Court of Common Pleas, composed of Byles, Keating, and Montague Smith, J.J., gave judgment for the Defendant upon the ground that the cases of Oglesby v. Yglesias, and Milvain v. Perez, show that discharging the charterer from all liability, and giving a lien upon the cargo, is not unusual, and that upon the true construction of this charter-party the liability of the cargo to the owner's lien for freight, dead-freight, and demurrage embraces detention at the port of loading, as well as at the port of discharge. The effect of this judgment was, on that charter-party, to give the shipowner a lien for unliquidated damages incurred at the port of loading.
The next case in which the subject was incidentally, though very fully, discussed in the Exchequer Chamber, was the case of Gray v. Carr (L.R. 6, Q.B. 522). This was an Appeal from the decision of the Queen's Bench. The action was brought by the shipowner against the consignees and holders of a bill of lading. One question in the case was whether words inserted in the bill of lading incorporated the terms contained in the charter-party, as against the Defendants. Another question argued was whether, assuming the first to be answered in the affirmative, the cargo-there having been a short loading—was subject to a lien for dead-freight; but the question, so far as material to the subject now under discussion, turned solely upon the construction of the charter-party, which provided that “ fifty running days are to be allowed to said merchants for loading, and to be discharged as fast as ship can put the cargo out, and ten days on demurrage, the owners to have an absolute lien on the cargo for all freight, deadfreight, demurrage, and overage ; and the charterer's responsibilities to cease on shipment of the cargo, provided it be of sufficient value to cover the freight and charges on arrival at port of discharge.” The vessel having been detained eighteen days, beyond the ten days, on demurrage, at the port of loading, the questions whether the charterer was absolved, and whether the cargo was subject to a lien in respect of this delay, were discussed by the learned Judges in their judgments. Cleasby, B., was of opinion that the lien could not be enforced in respect of the damages due for detention beyond the demurrage days, but that, whether the demurrage days are occupied in loading or discharge, the charterer is equally discharged as soon as the vessel is loaded. Brett, L.J., thought the proposition that the liability of the charterer in respect of damages for short loading, and for demurrage, and for detaining the ship beyond the demurrage days, ceased on the loading a sufficient cargo, was not sound; and that the interpretation of the charter-party by the Judges who decided Bannister v. Breslauer was too severe. The learned Judge proceeds, “I cannot but think that the safer, and juster, and more correct construction of the clause is that it absolves the charterer, when once cargo of sufficient value is on board, from all liabilities which, but for it, he might incur in respect of anything happening after the sailing of the ship, or, more probably speaking, after the bill of lading is given, as it were, to replace the charter-party;" and Channell, B., says, “ Probably the charterer's responsibilities, which are to cease, are the responsibilities in respect of those matters for which a lien is created,” and, referring to Bannister v. Breslauer, adds, “If the demurrage referred to was demur. rage properly so called, then I agree with the decision ; if, however, as certainly rather appears to have been the case, it was merely unliquidated damages for the detention of the ship, then I think the decision somewhat doubtful, and to be supported, if at all, by the fact that the words as to cesser of responsibility were stronger than here. The attention of the Court does not appear to have been drawn to the fact that the demurrage then claimed was not demurrage properly so called, but only unliquidated damages, and, therefore, the opinion of the Judges that a lien was created for this so-called demurrage is not entitled to the same weight as I should have been disposed to give it if the point had appeared to have been carefully considered.” Bramwell, L.J., thinks that the words used are not sufficient to show that “responsibilities" mean
responsibilities for past breaches of agreement," and, if so intended, “be extinguished” should be substituted for “cease,” and clearly, all breaches are not provided for by a remedy, for if there was no advance at the port of loading an action would lie against the charterer, and that the responsibilities which are to cease are those which the shipowner, without loss to himself, may render unnecessary in the case supposed, and that if Bannister V. Breslauer is inconsistent with this view the learned Baron must intimate his doubt of that decision.
The next case decided was that of Christoffersen v. Hansen (L.R.7, Q.B. 509). The action was brought by the shipowner against the charterer for damages for detention at the port of loading. The breach of the charter-party complained of was for not “loading the ship in regular turn,” and the clause in question was “the charter being concluded by Defendant on behalf of another party resident abroad, all liability of the Defendant should cease as soon as he had shipped the said cargo.” No lien was given to the owners. The Court gave judgment for the Plaintiff. Lord Blackburn, reviewing the cases above cited, observed that the judgments of the Court of Common Pleas in Gray v. Carr seemed clearly to show that the ground of their decision, that all liability of the charterers (in respect of it) ceased, for the past as well as the future, was that there was an absolute lien given for dead-freight and demurrage, whilst here no lien was given; and Pedersen v. Lodinga seems a direct authority that a clause like the present is not enough to enable the Defendant to get rid of all liability as to vested rights of action. Lush, J., adds reasons, “ If there were any provision giving the shipowner an equivalent advantage that would be a very good reason for his absolving the Defendant altogether, but there is no such provision," and adds, “I think, therefore, that the more reasonable construction to put upon the clause in question is, that it was intended that as soon as the cargo was put on board the contract was to be at an end, so far as the Defendant was concerned, and he was to incur no further responsibility, remaining, however, liable for any breach of his contract that had occurred up to the completion of the loading."
In Francesco v. Massey (L.R. 8, Ex. 101), the action was brought for five days' demurrage at the port of loading, upon a charter-party containing the provision “and ten days on demurrage, over and above her said laying days, at £8 a day ; charterer's liability to cease when the ship is loaded, the captain having a lien upon the cargo for freight and demurrage.” The Court gave judgment for the Defendant, Bramwell, L.J., observing, “ It is impossible to say that this would not give a lien for demurrage incurred at the port of loading, as well as at the port of discharge, and, in order to give effect to clear words, we must hold either that the charterer's liability was contingent on his not loading a cargo, or that, if a cause of action vested, it was defeasible and divested on the loading of the cargo." This decision was affirmed in the Exchequer Chamber, in the case of Kish v. Corry (L.R. 10, Q.B. 553), where the further question (although not necessary for the decision of that case), whether the lien for “demurrage” would have extended to damages for detention beyond the demurrage days, was discussed in the judgments. The question turned upon the construction of the following clauses: “Ten days' demurrage for all like days above the said days, to be paid, &c.;” “Charterer's liability to cease when the ship is loaded, the captain or owner having a lien on cargo for freight and demurrage.” The action was brought for five days' demurrage at the port of loading. Lord Coleridge thought that when the question arises upon a similar clause, when the shipowner sues, not for demurrage, but for unliquidated damages for detention at the port of loading, and the charterer relies upon the exempting clause, it will be held that the charterer's liability ceases on loading, and the lien