And if principles assumed to be law in the modern cases are to be adopted, we should say that delay from the elements, as frost,1 or tempest, or tide,2 or from any act of government,3 or from any

the London docks, yet the freighter was held liable for the delay. Lord Ellenborough said: "The question is, whether the detention of the ship, arising from the inability of the London Dock Co. to discharge her, is, in point of law, imputable to the freighter; and I am of opinion that, the person who hires a vessel detains her, if at the end of the stipulated time he does not restore her to the owner. He is responsible for all the various vicissitudes which may prevent him from doing so." But in Rogers v. Hunter, 2 Car. & P. 601, Moody & M. 63, Lord Tenterden was of the opinion that a defendant could not be said to detain a vessel, before he could get at his goods. So in Dobson v. Droop, 4 Car. & P. 112, Moody & M. 441, he said: "I am of opinion that, if a party cannot get his goods, he being prevented by a delay on the part of the owner of other goods on board the same vessel, he is not liable for demurrage. The question here is, whether the removal of the defendant's goods was obstructed by the misconduct of another in not removing his goods; for, if so, the defendant is not liable for demurrage." The weight of authority is certainly in favor of the cases first cited, and we are inclined to believe that they are the more correct in principle. The parties are at liberty to make any contract they please, and if they choose to stipulate that demurrage shall be paid at all events, there seems to be no reason why the consignees should not pay it, even though the delay is not occasioned by their fault, if the owner be not to blame, but if he is in fault then it is clear that the consignees will not be liable. Benson v. Blunt, 1 Q. B. 870; Taylor v. Clay, 9 Q. B. 713. So, generally, if an owner do not procure the necessary papers for the discharge of the ship, he cannot claim demurrage, but if the defendant request him not to procure them, the defendant cannot set up their not being procured in an action brought against him for demurrage. Furnell v. Thomas, 5 Bing. 188.

1 Barret v. Dutton, 4 Camp. 333. But if the detention occur after the vessel is loaded, the charterer will not be liable. Pringle v. Mollett, 6 M. & W. 80. In Jamieson v. Laurie, 6 Bro. P. C. 474, where a British vessel was detained in St. Petersburg, to take on board her cargo, nearly two months beyond the stipulated time, and then setting sail, was driven back and frozen in for the winter, which began somewhat earlier than usual, demurrage was awarded only to the sailing of the vessel. And so, where, by the delay, the vessel lost the opportunity of sailing with convoy, and was obliged to wait nearly two months for another, the owner having covenanted that she should sail with convoy. Conner v. Smythe, 5 Taunt. 654. A similar rule was adopted where demurrage was stipulated to be paid whilst the ship was waiting for convoy. See Lannoy v. Werry, 4 Bro. P. C. 630.

2 In Clendaniel v. Tuckerman, 17 Barb. 184, the vessel had arrived, and notice was given that the captain was ready to deliver the cargo. She was, however, detained by the consignee, and while waiting was capsized by a freshet, and the greater part of her cargo lost. Held, that the consignee was liable for demurrage. See also, Brown v. Ralston, 9 Leigh, 532.

3 Bessey v. Evans, 4 Camp. 131; Hill v. Idle, id. 327. See also, Bright v. Page, 3 B. & P. 295, note. In Brooks v. Minturn, 1 Cal. 481, where a vessel was seized by the revenue officers, it was held that if the seizure was illegal no demurrage was due, so, if the seizure was legal, but occasioned by the fault of the ship-owner or his agent; but the court did not decide how it would be if the seizure had been occasioned by the

positive and certain disability of the consignee, although it could not be in any way imputed to his own fault, that is, neither to his own act, nor to his own neglect, should give claim to demurrage. But the parties may stipulate that the charterer shall be liable for no delay which is not caused by his own default.1

As a general rule the consignee takes the risks of roads and means of transportation from the dock, and is bound to take the cargo as fast as it is delivered to him from the vessel, but the owner of the vessel takes the risk of working weather, during the time required for the unlading. The original purpose of the provision in regard to demurrage was first, to hold the charterer to a proper endeavor to save time, and next, to make him pay a proper compensation for all the time of the owner which he might have saved but did not. For a similar reason, if any delay, for which he is not answerable, occurs after the lay days should have begun, these days do not always begin to count from the first day when he can work. Suppose he has forty days to unload the cargo and put on board a new one; and there is a compulsory delay of ten days after these lay days should have begun. If he can now, without extraordinary and unreasonable effort and cost, unlade and lade in thirty days, he must do it; for he has forty days still from the actual beginning of his work, only if the whole of the forty are necessary for the work.3

It is usual to call lay days "working days," or to define them by some similar epithet; but in the absence of such language, and of any language of an analogous meaning, the lawmerchant would, we think, define the mere word "days," as

fault of the consignee. It has been also held, that the indorsce of a bill of lading is liable for demurrage occasioned by his not being notified of the ship's arrival, the court holding that, although it is a convenient practice to give notice, yet it is not binding on the ship-master to do so. Harman v. Clarke, 4 Camp. 159; Harman v. Mant, id. 161. So demurrage was allowed where the delay was owing to a prohibition of intercourse between the ship and the shore, on account of infectious disease. Barker v. Hodgson, 3 M. & S. 267.

running days," and not as "working days," 1 unless there was some special usage to the contrary.2

If, besides the stipulated lay days, the charter-party provides that the charterer or consignee may detain the vessel, at so much a day for a certain period, the master is bound to wait during that whole period if the consignee requests him to do so. But when it expires he may go at once; and if he still delays, and then receives a cargo from the consignee, the consignee would certainly be bound to pay for these additional days, if he had requested the master to remain; and also, we think, if he had made no special request, but had profited by them to put his cargo on board, because the law would imply that the master waited by reason of an understanding with the consignee, and at his request.

If days are to be paid for after and beyond all those provided for, compensation is to be made on the principle of indemnity to the owner of the ship; and the rate for the days agreed on, would not be conclusive as the measure of damages, although it. might be evidence.1

If the charter be on time, it would seem that the charterer is liable for all the time lost by detention, or embargo, or capture, unless and until the vessel is condemned as prize, for this latter fact dissolves the contract. There must, however, be some limit to this in every case of hostile or public seizure or arrest, although no adjudged cases enable us to lay down the limitation with much distinctness. In the absence of any more definite rule,

1 Brown v. Johnson, 10 M. & W. 331; Brooks v. Minturn, 1 Cal. 481; Cochran v. Retberg, 3 Esp. 121, per Ld. Eldon, C. J.

2 And where the law of the country of the port of discharge 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, per Bosanquet, J. But in Field v. Chase, Hill & Den. 50, it was held to be no defence against the payment of demurrage that the ship arrived at Cuba during the Easter holidays, and that according to the usage of the place, the custom-house was closed, and the ship could not be entered nor permission obtained to unload, running days being held to include Sundays and customhouse holidays.

8 Jamieson v. Laurie, 6 Bro. P. C. 474. See also, Robertson v. Bethune, 3 Johns. 342; and p. 248, n. 1, ante.

4 Moorsom v. Bell, 2 Camp. 616; Randall v. Lynch, id. 352.

we should say that, whatever circumstances would suffice to break up the voyage, would suffice to terminate the charterparty, and the liability of the charterer.1

SECTION VI.

OF THE CONSTRUCTION OF CHARTER-PARTIES.

Although the parties may enter into what stipulations they please, the effect of their stipulations often depends on the legal construction of the instrument which contains them. This construction is always made by the court, and questions relating to it are questions of law and not of fact.2 All courts, in construing any instrument, pay great regard to the intention of the parties. This is to be gathered, if possible, from the words they use, aided by whatever evidence is admissible. And if the intention can be ascertained, it is carried into effect, provided the words used will bear this interpretation without any violation of the rules of legal construction.3

One of the questions of this kind which occurs most fre

1 Minot v. Durant, 7 Mass. 436. A ship was chartered for a voyage from Portland to St. Croix, and back to the United States twice. The defendant covenanted to pay at a certain rate per ton, per month, during the time the vessel should be employed. The vessel sailed from St. Croix where she arrived, and discharged her cargo, and from thence sailed for Wilmington in South Carolina. Here she was detained by an embargo thirteen months and twelve days. After being released she performed another voyage to the West Indies, and back to Portland, where she was returned to the owner. The defendant claimed to be entitled to deduct the hire during the time of the detention, but the court held that he was bound to pay for the whole time the vessel was in his employ. See also, Brown v. Hunt, 11 Mass. 45; Spafford v. Dodge, 14 Mass. 66, 71; Odlin v. Ins. Co. of Penn. 2 Wash. C. C. 312; The Nathaniel Hooper, 3 Sumner, 542; Patron v. Silva, 1 La. 275; Bork v. Norton, 2 McLean, C. C. 422; M'Bride v. Mar. Ins. Co. 5 Johns. 299; Palmer v. Lorillard, 16 id. 348; Baylies v. Fettyplace, 7 Mass. 325; Hadley v. Clarke, 8 T. R. 259; and post, p. 273. If the charterer agrees to pay a certain price in case of capture and condemnation, the declaration must show where, when, and by whom the vessel was captured, and that the court, which condemned her, had jurisdiction. Stone v. Patterson, 6 Call, 71. 2 2 Parsons on Contracts, 4, 5.

3 2 Parsons on Contracts, 6.

quently, in contracts relating to shipping, is whether a covenant be a condition- precedent, or an independent covenant. That is, whether a promise made by one party be such, that if he breaks it, this breach is a sufficient excuse for the entire disregard of all his promises by the other party; or is it such, that if he breaks it, the other party is still bound to his promises, but may claim indemnity from him who has broken his promise.1

Thus, if an owner contracts that his ship shall go to Liverpool, and there take and bring to Boston a full cargo for the shipper, who agrees to pay him thirty dollars a ton, and the ship, when three fourths laden, sails without sufficient reason, although the shipper has the remaining fourth ready to be put on board, if the promise to take and bring a full cargo is a condition precedent to recovery of freight, the condition having failed, the owner can recover nothing. If it is an independent promise, and the promise to pay thirty dollars a ton another promise, then the owner can claim this freight for all that he brought, and the shipper must pay it; but may still have his action, or his offset, for any damage he sustains by reason of the ship sailing with only part of his cargo.2

If the covenant or promise be a condition precedent, the consequence of a breach is that the whole obligation fails on the other side. Hence the first, and indeed the only rule, which is of much utility in questions of this kind is, that if the covenant or promise is inseparably connected with the whole of the consideration on which it rests, then it is a condition precedent; but if that consideration can be divided into parts, and the promise which is broken can be made to attach to some part, and the promise that is kept to another part, then the bargain becomes in fact two or more bargains, one of which is fulfilled and the others not; and then the covenants or agreements are independent or separable, and do not constitute a condition precedent.3

1 2 Parsons on Contracts, 40, 41.

2 Ritchie v. Atkinson, 10 East, 295. See ante, p. 245, n. 4.

3 Per Ld. Mansfield, C. J., in Boone v. Eyre, 1 H. Bl. 273, note a. See also, Duke of St. Albans v. Shore, 1 H. Bl. 270; Campbell v. Jones, 6 T. R. 570; Fothergill v. Walton, 8 Taunt. 576; Glaholm v. Hays, 2 Man. & G. 257; Barruso v. Madan, 2 Johns. 145; Puller v. Staniforth, 11 East, 232; Storer v. Gordon, 3 M. & S. 308.