When the particular dangers or risks against which the charterer has specifically guarded himself in the charter party are followed by more general and comprehensive words of exception, the latter are to be construed to embrace only occurrences ejusdem generis with those previously enumerated, unless there be a clear intent to the contrary. Thus where the charter party excepted, among other things, "strikes, lockouts, accidents to railway" and also "other causes beyond charterer's control" the general clause excepting "other causes beyond charterers' control" referred to matters ejusdem generis with the antecedent exceptions, and an inability to obtain a sufficient number of laborers when wanted was held not to be ejusdem generis with a lockout.14

Sec. 842. Effect when contract is silent as to time of loading or discharge.-Demurrage, strictly speaking, can be recovered only when it is expressly reserved by the charter or bill of lading. But one who charters a vessel, under a contract that is silent as to the time of unloading and discharge, contracts by implication that he will unload and discharge her within a reasonable time in view of all the existing facts and circumstances, ordinary and extraordinary, legitimately bearing upon that question at the time of her arrival and discharge. This implied contract to discharge the vessel is, in effect, a contract to discharge her with reasonable diligence.15 And the same rule applies

14. In re Richardsons, (1898) 1 Q. B. 261, 66 Law J. Q. B. 868, 77 Law T. 479, 8 Asp. 330.

15. Empire Transportation Co. v. Coal & Iron Co., 77 Fed. 919, 23 C. C. A. 564, 40 U. S. App. 157, 35 L. R. A. 623, affirming 70 Fed. 268; In re 2,098 Tons of Coal, 135 Fed. 317, 67 C. C. A. 671; Ionia Transportation Co. r. 2,098 Tons of Coal, 128 Fed. 514; Pantland Hick v. Raymond & Reid, L. R. (1893) App. Cas. 22, 62 L. J. Q. B. 98, affirming (1891) 2 Q. B.

626; Midland Nav. Co. v. Elevator Co., 6 Ont. L. R. 432.

There is no such thing as a reasonable time in the abstract. It must always depend upon circumstances. What may without impropriety be called the ordinary circumstances differ in different ports at different times of the year. As regards the practicability of discharging a vessel they may differ in summer and winter. Again, weather increasing the difficulty of, though not prevent

as well in the loading of a vessel as in her discharge.16

The burden is on him who seeks to recover damages for the delay of a vessel, under such a contract, to prove that the charterer did not exercise reasonable diligence to load or discharge her, under the actual circumstances of the particular case.17 But proof that the vessel was delayed in unloading beyond the customary time for unloading such cargoes at the port of loading or delivery throws upon the charterer the burden of excusing the delay by proof of the actual circumstances and his reasonable diligence thereunder.18

A lack of diligence at one time and an extraordinary amount of diligence at another time on the part of the charterer cannot be averaged. The law requires that the charterer use reasonable diligence at all times.19

Sec. 843. Same subject-Demurrage not allowable for contemplated delays. No doubt it is good law that if the performance of a contract is rendered impossible by the act of one of the parties to it, the other party is excused; and it is also good law that if one of the parties unduly delays the performance by the other, he forfeits his own right to complain of the delay, and probably also renders himself liable to make good any damage the other may suffer by the delay.20 But these rules must be applied with reference to the circumstances of each case, and must be read with reasonable limitations. If it appears that the delay complained of was such as both parties ought to have contemplated when the contract was entered into, then no complaint can be based upon it.21

Sec. 844. Same subject-When loading or discharge is left to third person.-The work of loading or discharging a ship is usually a joint obligation on the part of the shipowner on the one hand and the charterer or consignee on the other, each performing his individual part and their duties being reciprosonable, but certain and definite. 446, affirming Elmslie v. Hagar, It cannot fluctuate between a low 101 Fed. 840. minimum and a high maximum. The James Baird, 90 Fed. 669.

19. Aberdeen, etc. Co. v. Macken, (1899) 2 I. R. 1; Avon S. S. Co. t. Leask, 18 Sess. Cas. (4th) 280.

20. A delay caused by the failure of the charterer to notify his agent at the port of destination of his agreement to attend to the entering of the ship at the custom house upon her arrival and by the consequent failure of that agent to act, will be included in the lay days allowed by the charter for discharging. Hagar v. Elmslie, 107 Fed. 511, 46 C. C. A.

So a charterer is liable for demurrage for delay caused by loading and then unloading a quantity of iron not intended to be shipped, which an employe of the charterer erroneously designated as part of the cargo. Creighton v. Dilks, 49 Fed. 107.

21. Barque Quilpue, Limited v. Brown, (1904) 2 K. B. 264, 73 L. J. K. B. 596; Jones, Limited, v. Green & Co., (1904) 2 K. B. 275, 73 L. J. K. B. 601; Harrowing v. Dupre, 7 Com'l Cas. 157; The J. E. Owen, 54 Fed. 185; Hagan v. Tucker's Exec'r, 118 Fed. 731, 55

cal. But when that work is left entirely to a third person, as to a dock company, and the charterer's or consignee's obligation is only to complete the work with reasonable diligence, he will not be liable for any delay caused by the third person doing the work, unless the delay was occasioned through him.22

Sec. 845. Same subject-Charterer must have cargo ready for loading. There is a strict obligation on the part of the charterer to have the cargo ready for loading,23 except in those cases where the duty to do so has been modified by a controlling usage,24 or has been expressly excused. But where the charter party provides for demurrage to be paid at a specified rate, "lay days to count from the time the master has got ship reported, berthed and ready to receive cargo, and given notice. of the same in writing to the charterers," and owing to the cargo of an earlier vessel not being ready there is only a chance of a berth becoming vacant, there is no obligation on the part of the charterers to have the cargo on the quay and ready for loading. The charterer is ordinarily bound, however, to do whatever is reasonable with a view to getting the ship berthed at the earliest period possible; and it may be that under certain circumstances, owing to the custom of the port or to the provision that is made to facilitate the cargo remaining there for a time, or to some other circumstance, it would be the duty of the charterer to prepare the cargo so as to enable the ship to obtain an earlier berthing than would otherwise be obtained. But such facts must be affirmatively shown in order to charge the charterer with liability for demurrage.25

Sec. 846. Same subject-Charterer's duty to provide appliances for loading or unloading.-A charterer is bound to

C. C. A. 521, affirming 112 Fed. 546.

22. The Jaederen, L. R. (1892) P 351, 61 L. J. P. 89; Castlegate Steamship Co. v. Dempsey, (1892) 1 Q. B. 854, 61 L. J. Q. B. 620, reversing (1892) 1 Q. B. 54, 61 L. J. Q. B. 263.

23. Grant r. Coverdale, 9 A. C. 470; Kay v. Field, 8 Q. B. D. 594; 10 Q. B. D. 241.

24. Randall v. Sprague, 74 Fed. 247, 21 C. C. A. 334, 33 U. S. App. 464, reversing 67 Fed. 604.

25. Little v. Stevenson, (1896) App. Cas. 108, 65 L. J. P. C. 69.

provide such appliances for loading or unloading as are in ordinary use at the port for the kind of cargo to be handled.26 Where only one set of apparatus for unloading is available at a port, however, a usage of the port controlling the use of that apparatus will be binding on the shipowner in the absence of an express agreement to the contrary, and the charterer will not be liable for delay occasioned through compliance with that usage.27

A vessel has the right to assume that dockage for piling the cargo will be supplied with reasonable promptitude by the charterer.28 But the rule is different as to the vessel's rights against a consignor, not a charterer. Where a bill of lading is silent as to who is to furnish means of dockage, presumably the boat is to discharge by her own tackle or the consignee is to provide the means. No action for demurrage for delay in securing proper dockage will therefore lie against the consignor, since the vessel owner takes the risk of finding suitable dockage, depth of water and discharging facilities. 29

When the charterers have used every endeavor to procure the necessary customary port appliances for loading or discharging the cargo, they will not be liable for demurrage for a delay in securing those appliances due to causes beyond their control or to regulations of the constituted port authorities.30

26. Wright v. New Zealand Shipping Co., 4 Ex. D. 165.

27. Postlethwaite v. Freeland, 5 App. Cas. 599.

As it is as much the shipowner's duty to deliver as it is the duty of the charterer to receive the goods, the shipowner must provide such apparatus as is necessary for his part of the work. But it is doubtful whether a shipowner can be compelled to supply electric lights where kerosene lamps cannot be used on account of the inflammable cargo. Especially is this true where the charterer or his agent does not point out the facilities needed and

demand the same of the ship. Matthias v. Beeche, 111 Fed. 940.

28. Williscroft v. Cargo of The Cyrenian, 123 Fed. 169.

29. Jameson v. Sweeney, 66 N. Y. Supp. 494, 32 Misc. 645; s. c. 61 N. Y. Supp. 498, 29 Misc. 584.

Demurrage will be allowed where there has been an unreasonable delay of a steamer and its tow for 2 days through failure of the consignee to provide necessary facilities for a speedier discharge of the cargoes. McArthur Bros. v. 622,714 Feet of Lumber, 131 Fed. 389.

30. Wyllie v. Harrison, 13 Sess. Cas. (4th) 92; The Jaederen, L.