
    Cross et al. v. Beard.
    Where there is an express contract about demurrage, the parties are held strictly to its terms, and, in general, no excuse is available for delay, though without the fault of the party, which is not stipulated in the eontrapt.
    In the absence, however, of express agreement, a contract is implied that the owner and consignee of goods will provide for discharging them in a reasonable time, to be ascertained by the jury from a consideration of all the circumstances.
    
      Held, accordingly, that the consignee of goods, to be discharged at his own wharf on Lake Ontario, was entitled to explain his delay in giving a berth to the ship, by proof that a break on the Erie canal, and a storm - on the lake, had caused an unusual number of vessels to be collected at his wharf just before the arrival of his goods.
    This action was brought in the Supreme Court for the recovery of damages alleged to have been sustained by the plaintiff, the owner of the schooner Forest, for the delay of the defendant in receiving a cargo of coals carried by that vessel from Oswego to Toronto, and which were shipped from the former port by the agents of the defendant and consigned to him at the last mentioned place. The defendant, who appeared to be a dealer in coals at Toronto, caused to be shipped on board the schooner, of which one of the plaintiffs was the master, about 266 tons of coal, with which the vessel sailed from Oswego on the 10th day of June, 1857, and she arrived at Toronto in the morning of the 12th day of the same month, which was on Friday, and was ready to commence unloading the cargo at about noon on that day; of which the defendant had notice. The defendant possessed a dock at which he desired the delivery to be made; but at the time when the Forest arrived, seven or eight other steamers laden with coal for the defendant were there, three of which were then lying at the dock and being unloaded; and this caused the delay in discharging the plaintiff’s vessel, as the defendant would not admit her to the wharf until the other vessels had discharged their cargoes. They were brought up to the wharf, and the cargoes discharged in the order in which they arrived at the port. The master of the plaintiff’s vessel requested that he should be allowed to unload at some other wharf, but this the defendant would not consent to, saying he did not wish his coal to be scattered about; upon which the master served a notice upon the defendant that he should claim demurrage if he was delayed in unloading. The Forest came up to the dock in her turn, on Monday evening, and commenced unloading, and finished discharging the coals on Wednesday evening.
    The bill of lading signed by the master at Oswego was given in evidence. It contained no stipulation as to the time to be allowed for discharging the cargo.
    The defendant’s counsel moved for a nonsuit, on the ground that an action for demurrage would not lie unless there was an express contract on the subject; and also that no action for the delay could be sustained if the vessel was discharged in its turn and with reasonable diligence. The judge denied the motion, and the defendant excepted.
    The defendant then offered to show that a break had occurred in the Erie canal, by reason of which a large amount of coal designed to pass by Buffalo was turned into the Oswego canal, and that that coal was loaded upon the plaintiff’s and other vessels at Oswego and dispatched for Toronto; that the vessels so dispatched formed a large fleet, and that, if they had arrived at Toronto in the same order as loaded, they would have been promptly discharged by the defendant, with his facilities ; but that, by reason of tempestuous and unfavorable ■weather, some were delayed and others accelerated, so that they came into Toronto in so crowded a fleet that it was impossible to discharge them at once, and that the defendant did discharge all the vessels in. their turn as fast as could be done, with all reasonable dispatch and in a reasonable time under the circumstances; and that the delay was not occasioned by the force of circumstances over which the defendant had control, but by a vis major ; and that the defendant had greater facilities than any other in Toronto for unloading, and sufficient for all ordinary circumstances. ■ The judge excluded the evidence upon the plaintiff’s objection, and the defendant excepted.
    A witness for the defendant testified that the usual time for discharging a cargo of coals from a vessel of the size of the Forest would be three days, at the usual working time at Toronto. The defendant gave evidence showing the size of his wharf.
    It appeared that a fair charge for the demurrage of the Forest would be thirty dollars per day.
    Some other questions of law were raised by the defendant’s counsel which were not insisted on here. The verdict was for the plaintiff for sixty dollars’ damages. The defendant appealed from the judgment of affirmance at the general term, where the opinion was delivered by Allen, J., now sitting in this court.
    
      Marsh & Webb, for the appellant.
    
      Grant & Allen, for the respondent.
   Denio, Ch. J.

The Supreme Court was plainly right in holding that the owner of a vessel is entitled to recover against one who has chartered it, or has shipped goods on board of it, for an unreasonable and improper delay in unloading the cargo, by which such owner has been for a time unjustly deprived of the use of his ship, or has otherwise suffered damages. The thorough examination which that question has received at the hands of our learned brother, who prepared the opinion of the Supreme Court, appears to have convinced the plaintiffs’ counsel; for the contrary position is not asserted in the printed argument submitted upon this appeal, though the point is understood to have been taken on the motion for a nonsuit made at the trial. Although there was not, in the agreement for carrying these coals, any stipulation as to the time to be allowed for discharging them at their port of destination, they were consigned to the defendant by his own agents, and he was as much bound to receive them within such time and in such a manner as not to embarrass or damnify the plaintiff in the enjoyment of the use of their vessel, as the plaintiff was to carry the cargo safely to the' port to which it was consigned. In every contract between these parties, where the performance by one of them presupposes some regular act to be done by the other party prior thereto, or contemporaneously, the neglect or refusal to perform such act not only dispenses with the obligation which the other was under to perform on his part, but, where the circumstances are such that, as in this case, a rescission of the contract will not afford an adequate remedy to the party who was ready to perform, he is entitled to a recompense against the delinquent party equal to the damages which such delinquency has caused him. The principle has often been applied to cases where the owner or shipper of goods has failed promptly to receive them at the port of delivery, so as to return the vessel to the general use of the owner in a reasonable time. The following authorities, most of which are commented on in the opinion of the Supreme Court, either expressly affirm this principle, or, taking it for granted, apply it to the solution of other questions. (Abbott on Shipping, 304; Horn v. Bensusan, 9 Car. & P., 709; Evans v. Foster, 1 Barn. & Ad., 118; Brouncker v. Scott, 4 Taunt., 1; Rodgers v. Forrester, 2 Camp., 483; Burmster v. Hodgson, id., 488; Hill v. Idle, 4 id., 327; Clendanial v. Tuckerman, 17 Barb., 184.)

But the question presented by this appeal requires a consideration of the excuses which the shipper of goods or the charterer of a vessel may setup to excuse a delay in discharging the cargo; and upon this part of the case I think there is a distinction which has been overlooked by the Supreme Court. It is usual in charter parties to insert an agreement that a specified number of days shall be allowed for loading and unloading, or for one of those operations, and that it shall be lawful for the freighter to detain the vessel for these purposes a further specified time on payment of a daily sum. (Abbott, p. 308.) A contract to the same effect is often inserted in the bill of lading where goods are sent in a general ship. (Harman v. Gandolph, Holt’s N. P., 95.) This delay, and the payment agreed upon, are called demurrage. Where the contract is thus precise, the shipper of the freight is held very strictly to its terms: thus, a municipal regulation of the port, prohibiting intercourse for a limited period, by means of which there was a delay in loading; a delay occasioned by frost, or by the prohibition of a foreign government to export the stipulated cargo, or by custom house restraints, or by unlawful seizure of some part of the cargo, do not relieve the shipper from the payment of demurrage. “ The merchant,” as Lord Ellenborough said of this subject, “is the adventurer who chalks out his voyage.” (Burmster v. Hodgson, 3 M. & C., 267; Abb., p. 360.) But the rule is somewhat different when no period of delay is fixed by the contract. There a reasonable time is implied, and this is to be determined upon by a regard to all the circumstances legitimately bearing upon the case; and it is a question for the jury. Thus, in Randal v. Lynch (2 Camp., 352), forty days for loading and unloading were allowed by the terms of the charter-party, and also five pounds per day for the next ten days of delay. Owing to the crowded state of the London docks, the sloop was detained beyond the forty days. Lord Ellenborough said that a person who hires a vessel detains her, if, at the end of the stipulated time, he does not restore her to the owner. He added that he was responsible for all the various vicissitudes which may prevent him from doing so; and he further said that he considered the dock company the defendant’s agents, and that the defendant was as much responsible for a delay arising from the want of a berth as if it had arisen from tempestuous weather or any other cause. It is obvious that these and a few other similar cases are based upon a consideration that the shipper, by fixing upon a number of days’ delay, becomes the insurer against casualties of the kind mentioned, which may prevent the loading or unloading within the specified time. He is not guilty of a breach of contract, however, if the vessel is detained a longer period than the days specified. He simply pays the additional sum according to the contract. The case is very different where there is no express contract, or, what is the same thing if no particular period of delay is bargained for in the contract. In such cases the defendant is not charged for the payment of a sum pursuant to the terms of a contract, but for general damages for the breach of his implied agreement. This involves a greater or less degree of delinquency, and it would, therefore, be unreasonable to hold the defendant responsible if he was able to show that it was in no respect his fault that there was a delay in loading or unloading the vessel.

The cases establish the existence of this rational distinction. In the case of Randal v. Lynch, we have just seen that a delay arising from the crowded state of the London docks was charged upon the charterer of the vessel, the charter-party having specifically fixed upon forty days for the time of loading and unloading, which was exceeded for the reason mentioned. Shortly afterwards the case of Rodgers v. Forrester was tried before the same judge. It was covenant on a charter-party for demurrage. The contract provided “that the said freighter should be allowed the usual and customary time to unload the said ship or vessel at her port of discharge.” The vessel was compelled to wait from the last day of August until the 20th of October, on account of the erowded state of the London docks, before the plaintiff could commence the unloading, and the cargo was not fully discharged until the 26th of that month. The defendant’s counsel relied on Randal v. Lynch, where the same excuse was held to be of no avail in a case in which a specified delay had been inserted in the charter-party. Lord Ellenborough: took the precise distinction I have suggested. In the case of Randal v. Lynch, he said, a specific period of forty days was fixed by the charter-party for loading and unloading the cargo. Here the stipulation is that the freighter shall be allowed the usual and customary time to unload the ship in'her port of discharge, which is the usual and customary time for a ship to unload a cargo of wines in the port of London, according to the evidence, where the ship gets a berth by rotation, and the wines can be discharged into the bonded warehouses.” * * * “I am, therefore, of opinion that the defendant has not broken the implied covenant arising from the terms of the charter-party, to unload the ship in the usual and customary time for that purpose at her port of discharge.” At a later period of the "same year the case of Burmster v. Hodgson (supra), came on to be tried-before Sir James Mansfield, Chief Justice of the Common Pleas. The defendant was the consignee of a cargo of brandy brought to London in a ship of which the plaintiff was master; but as the docks were extremely crowded, sixty-three days elapsed before she could be unloaded. The action was for compensation in the nature of demurrage from the time when the ship might have been unloaded until she was "completely discharged. There appears not to have been any express contract as to the time of unloading. The chief justice was of opinion that the case could not be distinguished from Rodgers v. Forrester. “ Here,” he said, “the law could only raise an implied promise to "do what was there stipulated for by express covenant, viz.: to discharge the ship in the usual and customary time for unloading such a cargo. That has been rigidly held to be the time within which a vessel can be unloaded in her turn into the bonded warehouses.”

I am of opinion that the present case falls within the reasons of the two nisi prius cases last mentioned, and that the doctrine which was established is reasonable and just in itself. If it be conceded that the defendant had a right to require that the coals should be" delivered upon his own dock, he was guilty of no fault or breach of contract in delaying the plaintiffs’ vessel until she could come up to the dock by taking her turn among the other vessels which were also waiting to be discharged, unless he was guilty of some fault in suffering such an accumulation of craft laden with cargo for himself for the same wharf at the same time. The evidence which the defendant offered respecting the storm, on the lake was addressed to that point, and I think it should have been received. It certainly sometimes happens that a crowd of vessels arrive at a marine or a lake port very near each other, owing to their having been held, back by a storm or by adverse winds. Whether, if that was the case in this instance, the defendant should be considered in fault in not providing means for unloading a greater number of vessels at one time, or whether under the actual circumstances, he ought to have engaged another wharf to receive the coals, were questions for the jury to determine. But it was a material feature of the case for the defendant to show, if he could, that it was not owing to any mismanagement of his, or of his agents or correspondents, that so many vessels were at the port laden with his property and ready to be discharged at the same time. That, it seems to me, he offered to do; but the evidence was ruled out. We think the judgment should be reversed on account of this error, and that a new trial should be awarded. We do not perceive any error in the denial of the motion for a nonsuit, because, in our view of the case, there were still questions for the jury to pass upon, namely, those which have just been mentioned.

Wright, Selden, Gould and Smith, Js., concurred.

Judgment reversed, and new trial ordered.  