1846. TAYLOR V. CLAY. pears on the part of the defendants; nor did it lie upon Queen's Bench. them to shew in pleading why the ship could not take her turn sooner. This case is unlike Leer v. Yates (a), which may be referred to on the other side: there the action was brought on a positive contract for demurrage, the shippers of goods engaging with the shipowner that the goods should be taken out "in twenty days after arrival" or that they would pay a demurrage of 41. a day: and, unloading of the goods having been delayed without fault on either side, the only question was, who, under such a contract, was to lose the stipulated amount per day. It was held that the loss must fall the owner of the goods; but the cases of this class have been thought to go a great length: and the doctrine was qualified at least in Rogers v. Hunter (b) and Dobson v. Droop (c), in the former of which cases Lord Tenterden said (after referring to Leer v. Yates (a)): "I have great difficulty in saying that, when the consignee has had no opportunity of taking his goods within the time stipulated, he is bound by the contract to pay for not doing so; he cannot, I think, in that case, be said to detain the vessel." And, in Harman v. Gandolph (d), though the strict rule was recognized, Gibbs C. J. grounded it on the consignee's express adoption of the contract with the ship-owner. upon Chilton, Davison and Hurlstone, contrà. As to the third issue: the facts alleged and proved do not amount to any excuse for the breach. was a sufficient cause for the not responsible for it. (a) 3 Taunt. 387. (c) M. & M. 441. Even if the accident (b) M. & M. 63. Volume IX. 1846. TAYLOR V. CLAY. take a pilot, and the pilot to obey exclusively the (a) 2 Camp. 352. Leer v. And it is (b) Randall v. Lynch, 12 East, 179. 1846. or by unlawful seizure of some part of the cargo by Queen's Benci. custom-house officers, are misfortunes and casualties which fall upon the freighter. He might have protected himself by express stipulation-he might have limited his - engagement to pay demurrage to cases of wilful or negligent detention, for delays occasioned by the wrongful act of others, he has his remedy against them; -but unless they be caused by the shipowner himself, the freighter or consignee must pay demurrage according to his contract." The defendants here were subject to the liability pointed out by these authorities, unless they pleaded something in avoidance. It lay on them either to shew that they loaded the ship in a reasonable time after she arrived in good condition at Port Talbot, or to excuse themselves for not having done so by some matter subsequent. [Wightman J. You contend that they should have pleaded in confession and avoidance. But what had they to confess, as to matter occurring subsequently to the arrival? All that they could have stated would have been no more than an argumentative denial of the allegation that they did not load in reasonable time.] At all events that answer does not meet the objection on the second issue. Lord DENMAN C. J. First, as to the third issue. The plea alleges that the plaintiff had the care, direction and management of the ship, and that, before the defendants could load her, the plaintiff, being master, and the crew, took such bad care of the ship and governed and navigated her so unskilfully that, by their carelessness, unskilfulness and mismanagement, the ship was injured and unfit to receive a cargo. That was entirely matter of evidence; and the Judge is not dissatisfied TAYLOR V. CLAY. Volume IX. 1846. TAYLOR v. CLAY. with the conclusion the jury have come to. I think that the master was proved to have had the direction of the ship, and that the plea was made out. If so, it follows that the other pleas were proved also. The term "reasonable time" in the declaration means a space of time within which the ship may, with proper speed, be unloaded, whenever she is in a condition for that process; not a reasonable period to be dated from a given time. So as to the turn. If there had been an express stipulation that she was to be unloaded between ships number 1 and number 3, it might have been necessary to plead in excuse: but the terms of this contract imply only that she was to have her turn when she was ready to take it. Her turn was not come if she was not in a situation to take advantage of it. COLERIDGE J. I agree, as to the first two issues, that the reasonable time for loading, and the turn, came only when the ship was in a condition to take advantage of them. On the third issue I had more doubt. But I think that it is a question on the construction of the plea, whether having the care, direction and management means having the legal or the actual care. It appears to me that the meaning here is the latter; and that the care and management spoken of in the commencement of the plea must be understood in a sense correlative to that of the "carelessness" and "mismanagement" charged in the latter: these are clearly imputed to the master and crew: and the jury have found the fact conformably to the plea. WIGHTMAN J. As to the first two issues: the charter-party mentions no specific time for the loading: 1846. TAYLOR V. CLAY. it appears only that the ship is to be loaded when she Queen's Bench. arrives at Port Talbot, and in turn. The first breach assigned is, that the defendants did not load within a reasonable time after the ship's arrival; and to that a simple traverse is pleaded, on which the verdict is for the defendants. It has been argued that, on this contract, they could not set up matter of excuse from unavoidable causes of delay: but I think it was competent to them to shew that they loaded within a time which was reasonable under the circumstances; and I think also that they could not safely plead in confession and avoidance. They might perhaps have done so if the contract had been to load within three days; but how could they admit that they did not load within a reasonable time? Their defence is that, under all the circumstances, they did. As to the second breach, not loading in turn, the question is not quite so clear. But I think loading in turn must have meant loading as soon as they had a turn; and, as to that fact, the only evidence is that, as soon as they were capable of loading, they did. Before then they could have no turn. That seems to me the only reasonable construction. As to the third plea, it is argued that the excuse there alleged is not borne out, because the vessel was under the direction of the harbour-master and a pilot. But, for all the purposes of this defence, the vessel was under the management of the master and crew. For certain purposes, the harbour-master and pilot had the direction; but the master and crew directed the navigation; the management of the ropes and all the mechanical working of the ship were under their care. I think, therefore, that the allegations of that plea were made out. How far the fault any other person than the master and crew con of |