C. A. 1902 of his death. If he could technically bring himself within the definition, it would avail him nothing; for it is impossible that under such circumstances there could have been any injury to the applicant by the death of the workman within the meaning NAVIGATION of Sched. I. (1), (a), (ii.). REES v. PENRIKYBER COLLIERY COMPANY. MATHEW L.J. I am of the same opinion. Appeal dismissed. Solicitors for applicant: Riddell & Co., for Walter Morgan, Bruce & Nicholas, Pontypridd. Solicitor for respondents: H. P. Becher, for Simons & Powell, Pontypridd. W. J. B. 1902 Dec. 15. [IN THE COMMERCIAL COURT.] In re AN ARBITRATION BETWEEN THE NEWMAN & Ship-Charterparty-Exceptions-Applicability to Charterer. The exception of fire in a charterparty enures for the protection of the charterer as well as the shipowner. AWARD stated by an umpire in the form of a special case. By a charterparty, dated July 16, 1901, between the Newman & Dale Steamship Company, Limited (the owners), and the British and South American Steamship Company (the charterers), it was provided that the steamship Aqua should proceed to New York and load a full and complete cargo of hay, alfalfa, bran, and being so loaded proceed to Table Bay for orders, to discharge always afloat at one or two ports between Cape Town and Delagoa Bay and there deliver the same. The charterparty provided (by clause 8) that twentyfour weather working days (Sundays and holidays excepted) should be allowed for loading and discharging cargo, after and or which demurrage was to be paid at the rate of 451. per running day; time in shifting ports not to count as lay-days. 1902 NEWMAN & DALE COMPANY SOUTH AMERICAN STEAMSHIP COMPANY, In re. Clause 11 of the charterparty, which contained the excep- STEAMSHIP tions, was as follows: "The act of God, perils of the sea, fire, barratry of the master and crew, enemies, pirates and thieves, BRITISH AND arrests and restraints of princes, rulers and people, collisions, stranding and other accidents of navigation excepted, even when occasioned by negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowners; ship not answerable for losses through explosion, bursting of boilers, breakage of shafts, or any latent defect in the machinery or hull, nor resulting from want of due diligence by the owners of the ship or any of them, or by the ship's husband or manager." The cargo was shipped under a bill of lading dated August 12, 1901, and was delivered as hereinafter mentioned at East London to the British Government, the consignees of the cargo. The vessel sailed from New York on August 13, 1901, and arrived in Table Bay on September 22, when she received orders to proceed to East London and discharge. Five laydays were occupied in loading at New York. She arrived at East London on September 26, and notice was at once given to the representative of the British Government at that port, but she did not begin to discharge until October 13. On October 16 fire broke out in the cargo, and the vessel was ordered away from the discharging berth by the consignees and removed to an anchorage in the river. She continued at her anchorage discharging damaged hay and coals into lighters until November 3, when, notice having been given to the consignees that all damaged cargo had been discharged, she was again ordered to her discharging berth, and continued discharging undamaged cargo until November 7, when the whole of such cargo was discharged. Some further damaged hay was then found in the vessel, and she was again moved from the discharging berth to an anchorage in the river, when she proceeded to discharge the said damaged cargo, and completed the discharge on November 11. During the discharge the owners 1902 demanded demurrage from the charterers; and the latter paid NEWMAN & certain sums under protest, and claimed to recover the same or DALE ¡STEAMSHIP a portion thereof, or to deduct the same from the balance of COMPANY freight as having been improperly demanded. AND BRITISH AND COMPANY, In re. The owners having brought an action to recover the balance AMERICAN of freight and demurrage, the action was stayed and all matters STEAMSHIP in dispute referred to arbitration; and, the arbitrators having differed, the umpire made his award in the form of a special case. The only question was as to the amount of demurrage payable to the owners by the charterers. The owners claimed twenty-eight days at 457. a day, and the charterers admitted two days sixteen hours. If the owners' claim was correct there remained a balance due to them in respect of freight and demurrage of 10917. 13s. 11d., and if the charterers' allowance was correct no sum remained due to the owners. The amount of demurrage depended partly on questions of fact not material to this case, and partly upon the question of law hereinafter stated. It was contended on behalf of the charterers that the exception of fire in the charterparty applied to the obligation of the charterers to discharge, and that they were excused by the occurrence of the fire from all demurrage caused by it. It was contended on behalf of the owners that the exception did not apply to the charterers' obligation to discharge, and that the charterers were not thereby excused from liability for demurrage occasioned by the fire. The umpire found as facts that it was necessary to remove the vessel from her discharging berth in consequence of the fire, and that the damaged hay required a longer time to discharge than if it had been sound, and that there was a necessary delay of seven days in consequence of the fire. He also found that there was a further delay by reason of the following circumstances. After the fire had been extinguished and the vessel could have been safely brought back to a discharging berth, the consignees continued to discharge the damaged hay into lighters in the river instead of bringing her back and continuing the discharge at the berth. This course was adopted because the hay was damaged and worthless to 1902 NEWMAN & ! COMPANY AND the consignees, and was under the circumstances a reasonable course for them to pursue, but it was not necessary in consequence of the fire. The delay so caused amounted to ten days. STEAMSHIP The charterers contended that they were freed from any liability for demurrage in respect of both the periods of seven and ten days by reason of the exception of fire, and the question for the opinion of the Court was whether the contention of the charterers was correct as to one or both of the said periods. J. A. Hamilton, K.C. (Noad with him), for the shipowners. In any event the charterers cannot be held excused by reason of the exception for the ten days' delay, for it is found as a fact that that delay was not rendered necessary by reason of the fire. Nor are they excused in respect of the seven days' delay while the damaged cargo was being discharged, although that delay was caused by the fire. The exception of fire in the charterparty does not apply to the charterers' liability to discharge; it is inserted for the protection of the shipowners only; this is apparent from its language, for the exception is not expressed to be mutual. Clause 8 of the charterparty expressly binds the charterers to load and discharge in a certain number of days, and they cannot cut down this express obligation by bringing in an excepted peril, which is excepted in a separate and distinct clause, where the exception is in respect only of the liability of the ship. In order that the exception may enure to the benefit of the charterers, the intention must appear in clear and unambiguous language. In the large majority of the decided cases the exceptions are intended to be exceptions on the shipowner's liability for safe delivery of the cargo: Blight v. Page (1), where it was held that an exception in a charterparty of restraint of princes did not relieve the charterers of their obligation to load a cargo: Touteng v. Hubbard (2), where the same doctrine was applied in the case of an embargo laid on by the Government of the country in which the contract was made. The only case in (1) (1801) 3 B. & P. 295, n.; 6 R. R. 795, n. (2) (1802) 3 B. & P. 291; 6 R. R. 791. BRITISH AND SOUTH STEAMSHIP 1902 DALE STEAMSHIP COMPANY SOUTH COMPANY, In re. which an exception has been held to be intended for the NEWMAN & protection of the charterer as well as of the shipowner is Barrie v. Peruvian Corporation (1), where the charterer, who had been prevented from loading a cargo by reason of the BRITISH AND destruction of the landing-place by a tidal wave, was held AMERICAN excused by reason of the exception of "act of God" in the STEAMSHIP charterparty. That decision is contrary to the whole current of authority. It is also distinguishable; for clause 20 of that charterparty, which contained the exception, began by dealing with the obligations of both parties and imposing a penalty for non-performance; the clause indicated the existence of a mutual obligation, as was pointed out by Mathew J. in his judgment. In Hulthen v. Stewart (2) it was held that an obligation to discharge according to the terms of the demurrage clause must be enforced without reading into it a strike clause so as to alter its normal meaning when construed by itself. An express undertaking to do a thing in a given time is the basis of the charterer's liability, which can only be got rid of under the exception clause if an intention to that effect is clearly indicated. Carver, K.C. (F. E. Smith with him), for the charterers. The only distinction between the present case and Barrie v. Peruvian Corporation (1) is that here the exception clause is split up into several separate clauses. It is not necessary that the exceptions should be expressed to be mutual; that is only necessary where the clause would otherwise be ambiguous. In old times the position in a charterparty of the exception clause was such that it could only apply to the liability of the shipowners, and this is the reason for the early decisions. Blight v. Page (3) and Touteng v. Hubbard (4) are not authorities in the present case. [BIGHAM J. Has it not always been considered that the exceptions are introduced for the protection of the shipowner?] That is not the view of the authorities: Scrutton on Charterparties, 4th ed. pp. 168, 174; Carver on Carriage of Goods by Sea, 3rd ed. s. 150. Looking at the scheme of this charter (1) (1896) 2 Com. Cas. 50. (2) [1902] 2 K. B. 199. (3) 3 B. & P. 295, n.; 6 R. R. 795, n. (4) 3 B. & P. 291; 6 R. R. 791. |