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attaches.” Brett, L.J., observed, “That if the true interpretation of the clause be that the charterer's liability is to cease, as well for past as for future breaches, but only a partial remedy given by lien to the shipowner, that is, that he can exercise his lien for demurrage, but not for detention, he should think it so unjust that he should be prepared to overrule decisions on which it is based, but he was inclined to think that the interpretation to be adopted at the present day is that the charterer's liability for past breaches is to cease upon loading the cargo, but the remedy of the shipowner is given against the consignee to the extent of his remedy against the charterer. The learned Judge proceeds, “I feel certain that when the occasion arises it will be held that 'demurrage' includes detention at the port of loading." Cleasby, B., observes, “ On this question I will only remark that the clause may fairly be considered as referring to those matters, such as payment, which are contemplated as arising upon the contract, and not to those which arise to a breach of contract by detention.” Amphlett, L.J., and Pollock, B., were of opinion that the charterer's liability is to cease only to the extent that the owner has a lien on the cargo.
In Lister v. Haansbergen (L.R. 1, Q.B.D. 269), the Queen's Bench Division held that the words “loading excepted," inserted for the shipowners' protection in a similar clause of cesser of liability, excepts all liability connected with loading, and not merely the obligation to load a full and complete cargo. Lord Blackburn, in the course of the case, expressed great doubt, the charter-party giving demurrage days only at the port of discharge, whether the clause " the owners and master agreeing to rest solely on their lien for freight, demurrage, and all other claims,” would give a lien for unliquidated damages for detention at the port of loading.
In French v. Gerber (L.R. 1, C.P.D. 737), the action on the charter-parties was brought to recover damages against
the charterers (i.) for not giving orders at the port of call as to the ship's port of discharge, and (ii.) for giving orders for the ship to discharge at a port which was not a “good and safe port.” Upon demurrer to a plea setting out the following clause in the charter-party, “ It is further agreed that the liability of the charterers shall cease as soon as the cargo is on board, provided the same is worth the freight at the port of discharge; but the owners of the ship to have an absolute lien on the cargo for all freight, dead-freight, and demurrage, which they shall be bound to exercise,” the Common Pleas Division gave judgment for the Defendants. Brett, L. J., in giving judgment, said " even though the mere delay of the ship by not giving orders at Falmouth, might be treated as subject to the demurrage rate, and therefore, in such a charter-party, subject to the lien for demurrage, as suggested by some of the Judges in Kish v. Corry, yet the other damages sued for cannot we think be brought within such a rule. A part of the damages are obviously unliquidated, and for such part there is no lien. Such part is not the ‘freight, dead-freight, or demurrage,' for which a lien is given in this charter-party. So far as the damages which are claimed are covered by the lien, we think there can be no doubt that the charterers are absolved.” The learned Judge having reviewed the above quoted cases, comes to this conclusion :—“The rule, therefore, seems to be that where the words of the absolving part of the clause plainly show that all liability is to cease on loading, it is to cease both as to antecedent and future liabilities, and without regard to any lien ; but where the words of the absolving part are open to either interpretation, then without regard to lien, liability as to future transactions is not to accrue, but liability as to antecedent breaches is to cease only so far as an equivalent lien is given. It follows, that the Defendants are absolved by the clause in respect of all the damages sued for, whether a lien be or be not given as to part of them.”
This judgment was upheld in the Court of Appeal by Mellish, Baggallay, and Bramwell, L.J.J. (L.R. 2, C.P.D. 247), although on somewhat different grounds. In Mellish's, L.J., opinion, the parties have reasonably supposed that the clause in the charter-party, “ that 12 working laying days are to be allowed the freighters for loading the ship at port of loading and waiting for orders at port of call, 24 hours after the master has given notice in writing, &c., and 15 days on demurrage over and above the said laying days,” &c., provided a sufficient remedy for any inconvenience or damage which the shipowners were likely to sustain from not getting proper orders as to the port of discharge. The learned Lord Justice bases his decision on the rule which he recognises the Courts have acted on, that the exoneration ought not to be extended beyond the lien. Baggallay, L.J., entertained some doubts; was of opinion that the decisions show that the exoneration is co-extensive with the creation of the lien. The learned Lord Justice thought that in the application of this principle there is no distinction between liabilities accruing before and those accruing after loading. But entertaining doubt whether the damages sustained were not covered by the lien, he did not differ in his judgment. Bramwell, L.J., did not think the clause as to lay days counting was an entire compensation for all the damage that might happen, but that the shipowner must be taken to have intended to take the risk, inasmuch as he consented to the insertion of the words of immunity.
The last decision upon the subject (Sanguinette v. Pacific Steam Navigation Co., L.R. 22, B.D. 238) was given by the Court of Appeal, composed of Mellish, Brett, and Amphlett, L.J.J. The case turned upon points not material to the present discussion, but in delivering judgment, Brett, L.J., observes :-" If the demurrage clause were to be confined to a certain number of days, I should entirely agree that in the clause which gives a lien, demurrage is to be enlarged, and will not only include demurrage days proper, but also
days of detention, where a claim is to be made in the nature of demurrage.”
These are all the cases upon the clause in question, and it has been thought necessary to examine them all, with a view to arrive at some general rules, which will serve to ascertain the rights of parties to such contracts for the future. The result seems as follows:
1. In the absence of clear words distinctly showing intention, the liability of the charterer, in respect of breaches of the charter-party committed before the cargo is loaded, is to cease so far, and only so far, as a lien is given in respect of the damages resulting therefrom.
2. A lien is given in respect of demurrage properly so called, whether incurred at the port of loading or at the port of discharge, by a charter-party containing a general demurrage clause, not appropriated specially to the one or the other, and giving the captain a lien on the cargo for demurrage.
3. A lien is given in respect of damages for detention, whether incurred at the port of loading or discharge, by a charter-party containing no demurrage clause, but giving the captain a lien on the cargo for demurrage.
4. A lien is not given in respect of demurrage incurred at the port of loading, where, on its true construction, the charter-party indicates that the lien was only intended to be given for demurrage at the port of discharge.
The third proposition depends for its support upon the case of Bannister v. Breslauer, and this case as has already been shown, has been questioned by learned Judges on different occasions. The rule that some meaning must, if possible, be given to clear words (demurrage) seems to have been the real ground of that decision. The point not having been since raised on Appeal, it must be treated as binding, and whether right or wrong, is entirely consistent with what it will be now sought, as another rule to be educed from the above decisions, to show, is the opinion of most learned Judges, namely:
5. That on a charter-party containing the ordinary clause of cesser of liability, demurrage clause, and power of lien, the captain will have no lien for damages for detention, beyond the demurrage days at the port of loading. It follows, of course, upon the first proposition, that the charterer would remain liable in respect of such detention. The only Judges who appear to have dissented from this view, are Lord Coleridge, Brett, L.J., and Grove, J., and this, be it observed, in a case (Kish v. Corry) in which the point was not before the Court for decision. Lord Coleridge and Grove, J., stated no reasons, but Brett, L.J., after making the observations before quoted, proceeds, “ It may be said that this difficulty may be obviated by holding that the liability of the charterer was to cease only in respect of the delay of the vessel during the demurrage days, and that the lien would attach for that only, and that notwithstanding the clause of exemption, a right of action would remain against the charterer for delaying the ship at the port of loading beyond the demurrage days,” and then adds, “ That construction seems hardly consistent with the decisions in which it has been held that the charterer's liability is to cease for past breaches of the charter-party, at all events, in the detention of the ship.” With great deference to the learned Judge, it is difficult to see which of the abovequoted decisions are inconsistent with that construction. They appeared in the same case), as before pointed out, consistent with that construction to Cleasby, B. In Gray v. Carr, the question was actually before the Court (Exchequer Chamber), and decided by four of six learned Judges in favour of the present contention. Bramwell, L.J. (at page 528), observes, “In the absence of all evidence, we must give to the word demurrage'its known legal meaning, and this excludes from the operation of the lien, the claim for damages caused by further detention,” and Cleasby, B., adds “now the word 'demurrage,' has a known legal meaning—viz., the additional period during which the