A charterer is usually allowed so many days for loading, and so many days for unloading the ship. These days are called Lay Days. They are a part of the voyage, and belong to the charterer. The phrase used is sometimes "running days," or "working days" (v) or merely "days." This last term would be construed to mean "running" days, (p) and not "working days," unless some usage to the contrary were proved. (q)l
The contract also usually provides, that he may detain the ship for more days, sometimes limited in number, and for each of these days he is to pay so much. What he pays for these additional days he is said to pay for Demurrage. In construing these rights and obligations, courts regard not only the right of the owner to compensation, but the principle of public policy which forbids the wanton and unnecessary idleness of the ship.
A delay may be by compulsion; as by capture, or embargo, or any act of government, or being frozen up, or any absolute disability of the charterer, or of the consignee, which he cannot prevent. The question arises, whether such a delay gives to the owner a claim for demurrage. This question cannot certainly be answered on authority, as the cases are in conflict. We think, however, the better rule to be, that such a detention gives the owner such a claim, and that it is not confined to a voluntary detention. (r) 2
(n) Mackrell v. Simond, 2 Chitty, 666; Brown v. Hunt, 11 Mass. 45; Locke v. Swan, 13 Mass. 76. In the following cases the voyage has been held to be entire. Towle v. Kettell, 6 Cush. 18; Smith v. Wilson, 8 East, 437; Coffin v. Storer, 5 Mass. 252; Sweeting v. Darthez, 14 C. B. 538; Penoyer v. Hallett, 15 Johns. 332.
(o) Brooks v. Minturn, 1 Cal. 481.
(p) Brown v. Johnson, 10 M. & W.
381; Brooks v. Minturn, 1 Cal. 481; Cochran v. Retberg, 3 Esp. 121.
(q) Where the law of the country prohibits working on Sundays or holidays, they will be excluded, Cochran v. Retberg, 3 Esp. 121. See also Gibbens v. Buisson, 1 Bing. N. C. 283; Field v. Chase, Hill & Den. 50.
(r) A delay by capture or compulsion was once regarded as giving no claim for demurrage. Douglas v. Moody, 9 Mass.
1 A charter party provided that the charterers were to "load and discharge as fast as the ship can work, but a minimum of seven days to be allowed merchants, and ten days on demurrage, over and above the said lying days." Held, that " lying days " meant "working" and not "running" days, so "that Sunday was not to be counted. Commercial Steamship Co. v. Boulton, L. R. 10 Q. B. 346. In demurrage, a fraction of a day counts as a day, unless there is express stipulation to the contrary. lb.
2 Thus a consignee is liable for demurrage for a detention by bad weather, Thiis v Byers, 1 Q. B. D. 244; or by the delay of other consignees, Straker v. Kidd, 3 Q. B. D.
•6. Of the Dissolution of a Charter-Party. *806
Charter-parties, like all other contracts, may be discharged by the effect of their own terms, or by the agreement of the parties; (s) and a charter-party would be dissolved by anything which would make the execution of the agreement illegal, or impossible. Thus, a declaration of war by the country to which a ship belongs, against that to which it was to go, would dissolve the charter-party. (t) Whether an embargo, (u) or act of non-intercourse, or any other restraint or prohibition (v) by government, or a blockade (to) of the port in which the vessel is lying, or of that to which she is to go, (x) would suspend the charter-party, or go yet farther, and dissolve it, must depend on the character of the detention.1 We think such a detention would generally, if not always, suspend it. And if it were one which would probably continue for a period so long that it would be clearly unreasona656. See Duff v. Lawrence, 8 Johns. Gas. 162. But now the rule seems to be that the consignees shall pay demurrage, although not to blame, provided the owner be not in fault. Leer v. Yates, 3 Taunt. 386; Barman v. Gandolph, Holt, N. P. 35; Randall v. Lynch, 2 Camp. 352; s. c. 12 East, 179; Benson v. Blunt, 1 Q. B. 870; Taylor v. Clay; 9 Q. B. 718. As by frost. Barret v. Dutton, 4 Camp. 383; - tide. Clendaniel v. Tuckerman, 17 Barb. 184; Brown p. Ralston, 4 Rand. 504, 9 Leigh, 632; - any act of government. Bessey v. Evans, 4 Camp. 131; Hill v. Idle, id. 327; Bright v. Page, 8 B. ft P. 296, n.; Brooks v. Minturn, 1 Cal. 481; Barker v. Hodgson, 3 M. & S. 267.
(s) Goss v. Nugent, 6 B. & Ad. 68; King v. Gillett, 7 M. & W. 66; Cummings v. Arnold, 3 Met 486; Howard v. Macondray, 7 Gray, 616.
(I) Brown v. Delano, 12 Mass. 870; Palmer v. Lorillard, 16 Johns. 848; Avery v. Bowden, 6 Ellis & B. 714, 6 Ellis & B. 953; Barrick v. Buba, 2 C. B. (n. s.) 663.
See also Esposito v. Bowden, 4 Ellis & B. 968, 7 Ellis ft B. 763; Reid v. Hoskins, 4 Ellis ft B. 979, 6 id. 729, 6 id. 953; Clemontson v. Blessig, 11 Exch. 186.
(u) Odlin v. Ins. Co. of Penn. 2 Wash. C. C. 312, 317; Hadley v. Clarke, 8T.R. 269; M'Bride v. Mar. Ins. Co. 6 Johns. 808; Baylies v. Fettyplace, 7 Mass. 325; Touteng v. Hubbard, 3 B. & P. 291; Conway v. Gray, 10 East, 686.
(v) Richardson v. Maine Ins. Co. 6 Mass. Ill; Palmer v. Lorillard, 16 Johns. 348; Patron v. Silva, 1 La. 276. Lowness of water, which prevents a vessel reaching her port, merely suspends the contract Schilizzi v. Deny, 4 Ellis ft B.
(w) Palmer v. Lorillard, 16 Johns. 848; Ogden v. Barker, 18 Johns. 87; Richardson v. Maine Ins. Co. 6 Mass. 102.
(x) A blockade of the port of destination terminates the contract. Scott v. Libby, 2 Johns. 336; The Tutela, 6 Rob. Adm. 177.
223; Porteus v. Watney, 3 Q. B. D. 534. - Where a charter-party contained a provision, "charterer's liability to cease when the ship is loaded, the captain or owner having a lien on cargo for freight and demurrage," the charterer was, upon loading the ship, held discharged from liability for demurrage incurred at the port of loading. Kish v. Cory, L. R. 10 Q. B. 553; Francesco v. Maguey, L. R. 8 Ex. 101. See Lister v. Van Haansbersen, 1 Q. B. D. 269; Sanguinetti v. Pacific Steam Navigation Co. 2 Q. B. D. 238.
* A charter-party contained this memorandum: " In the event of war, blockade, or prohibition of export preventing loading, this charter-party to be cancelled." Held, that on the closing of the loading ports, the charter-party came to an end without any election by either party. Adamson v. Newcastle Steamship Ins. Ass. 4 Q. B. D. 462. See Geipel v. Smith, L. R. 7 Q. B. 404.
ble to detain the ship until the detention were removed; or if, from the nature of the cargo, a shorter detention would be likely to destroy it, or greatly diminish its value, we should say that this detention would annul the contract. (y)
If a ship and cargo were captured, and afterwards re stored, *such capture would generally only suspend the charter-party until the restoration. But even then the detention might be such, that from its length, or other circumstances, it must break up the voyage; and then it would annul the charter-party. (z)