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2 K. B . KING'S BENCH DIVISION. 791

[IN THE COURT OP APPEAL.] C.A.

TEMPEELEY STEAM SHIPPING COMPANY v. ^ g .

SMYTH & CO. Aug. 7.'

ShipChartorpartyArbitration ClauseCesser Clause Bill of Lading

Incorporation of Terms of CharterpartyClaim for Demurrage at Port

of LoadingArbitration Act, 1889 (52 & 53 Vict. c. 49), s. 4.

It was provided by clause 39 of a charterparty, by which the plaintiffs'

vessel was chartered by the defendants for the carriage of a cargo of wheatfrom Bahia Blanca to a port in the United Kingdom, that, if the loading

of the cargo were delayed by reason of certain causes therein specified, the

time so lost should not be counted as part of the lay-days, and that, if

any dispute arose under that clause in the loading of the ship, the same

should be settled in the Argentine Republic by arbitration in the manner

therein mentioned. The charterparty contained the usual cesser clause

providing that the charterers' liability should cease upon shipment of the

cargo, provided the cargo was worth the bill of lading freight, dead freight,

and demurrage at the port of shipment, and that the vessel should have a

lien on the cargo for recovery of all such bill of lading freight, dead freight,

demurrage, and all other charges whatsoever. A full cargo was shipped

by the defendants under the charterparty, and bills of lading were given

in respect thereof, by which the cargo was made deliverable to the defend

ants or their assigns, they paying freight for the said goods, against

delivery, in cash, at a rate of freight in accordance with the charterparty.

The bills of lading stated that all the terms and exceptions contained in

the charterparty were therewith incorporated, and formed part thereof,

] and gave the shipowners an absolute lien on the cargo for the recovery of

freight and demurrage and all other charges whatsoever. There was no

dead freight, and the cargo shipped was worth the freight and charges.

A dispute within the meaning of clause 39 having arisen with regard to

delay in the loading of the ship between the plaintiffs and the defendants

after the completion of the loading:

Held, that, notwithstanding the cesser clause, and the fact that the

' defendants were the holders of the bills of lading, the provision for

arbitration in clause 39 of the charterparty remained operative as between

the plaintiffs and the defendants, and therefore that an action brought by

the plaintiffs after the ship's arrival in the United Kingdom, claiming a

declaration that they were entitled to a lien on the cargo for demurrage

at the port of loading, should be stayed under s. 4 of the Arbitration

Act, 1889. Runciman &Co. v. Smyth & Co., (1904) 20 Times L. R, 625, overruled.

APPEAL by the defendants from the refusal of Channell J. to

stay the action under s. 4 of the Arbitration Act, 1889.

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792 KING'S BENCH DIVISION. [19053

C.A. The action was brought by shipowners in the Commercial

1905 Court for a declaration that the plaintiffs were entitled to a

TEMPEBLEY n e n o n certain goods discharged from a steamship called theSmppnto Woodbridge, belonging to them, for the sum of 661Z., and for

COMPANY payment of that sum, which had been deposited in a bank in

SMYTH & Co. joint names to abide the result of proceedings.

On January 7, 1905, a charterparty was entered into at

Buenos Ayres between the plaintiffs and one F. M. Nicholson,

who was acting as agent for the defendants, whereby the

Woodbridge was chartered to Nicholson to carry a cargo of

wheat from Bahia Blanca to a port in the United Kingdom.By clause 23 of the charterparty the cargo was to be loaded by

the charterers at the rate of 200 tons per running day (Sundays

and holidays excepted), and time for loading was to commence

to count twelve hours after written notice had been given by

the master, brokers, or agents to the charterers or their agents

that the vessel was in readiness to receive cargo, and all time on

demurrage over and above the said laying days was to be paid

' for by the charterers or their agents to the ship at the rate of4d. per gross register ton per day. By clause 31 it was pro

vided that the master should sign bills of lading as presented

at any rate of freight that the charterers or their agents might

require, but any difference in amount between the bill of lading

freight and the total gross chartered freight should be settled

at the port of loading before the steamer sailed, "charterers'

liability to cease upon shipment of cargo (provided such cargo

be worth the bill of lading freight, dead freight, and demurrageat port of shipment). Vessel to have a lien on cargo for recovery

of all such bill of lading freight, dead freight, demurrage, and

all other charges whatsoever." Clause 39 was as follows: " If

the cargo cannot be loaded by reason of riots or any dispute

between masters and men occasioning a strike or lock-out

of stevedores, lightermen, tugboat men, cart men, railway

employees, or other labour connected with the working, load

ing, or delivery of the cargo proved to be intended-for 'thesteamer, or through obstructions on the railways or in the

docks or other loading places beyond the control of charterers,

the time lost not to be counted as part of the lay-days (unless

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S E . B . KING'S BENCH DIVISION. 793 '

any cargo be actually loaded by the steamer during such time), c. A.

but lay-days to be extended equivalent to the time lost owing 1905

to such cause or causes, and, if the cargo cannot be discharged TEMPKRLEYby reason of a strike or lock-out of any class of workmen SH PUJO

essential to the discharge of the cargo, the days for discharging COMPANY

shall not count during the continuance of such strike or lock- SMYTH & Co.

out. A strike of the charterers' or receivers' men only shall

not exonerate charterers or receivers from any demurrage fot

which they may be liable under this charter, if by the use of

reasonable diligence they could have obtained other suitable

labour, at rates current before the strike, and, in case of anydelay by reason of the before-mentioned causes, no claims for

damages shall be made by charterers or receivers of the cargo,'

or by the owners of the ship, or by any other party under this

charter. Any time lost by the steamer through any of the

above causes to be reckoned as days for loading solely for the

purpose of settling the despatch money account. Should any

dispute arise under this clause in the loading of the steamer,

same to be settled in the Argentine Kepublic by a committeeconsisting of two arbitrators, one to be nominated by each

party to this contract, and should they be unable to agree the

decision of an umpire mutually approved by the two arbitrators

shall be final."

The cargo was shipped at Bahia Blanca, and bills of lading

were given which stated that the cargo was shipped by

F. M. Nicholson on board the steamship Woodbridge to be

delivered, subject to the terms of charterparty or freightcontract, unto the defendants or their assigns, " they paying

freight for the said goods, against delivery, in cash, without

deduction, the rate of freight to be in accordance with charter-

party or freight contract effected at Buenos Ayres, dated

January 7, 1905, all the terms and exceptions contained in

which charterparty or freight contract are herewith incor

porated and form part hereof." It was provided by the bills of

lading that the owner or master of the vessel should have " anabsolute lien and charge upon the cargo and goods laden on

board for the recovery and payment of freight and demurrage

and all other charges whatsoever."

VOL. II. 1905. 3 H 2

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794 KING'S BENCH DIVISION. [19053

C. A. The loading of the vessel at Bahia Blanca occupied a longer

1905 time th an the lay-days specified by th e char terparty. The re

TEMPEBLEY was no dead freight, and the cargo loaded was wor th theSHIPPING freight and charges. I t was asserted by th e defendants that

COMPANY the delay was due to a strike within the meaning of clause 39.

SMYTH & Co. of the charterparty, but this was denied by the plaintiffs.

When the loading was completed, the captain, on behalf of.

the plaintiffs, made a claim for 6611. demurrage alleged to

have been incurred at the port of loading, but the char terers

denied that they were liable for demurrage, and proposed that

there should be an arbitration upon the dispute in accordancewith clause 39 of the char terparty. Th e master refused to

entertain this suggestion and the vessel sailed for Manchester,

where she arrived in due course. Th e plaintiffs claiming a

lien upon the cargo for the demurrage, i n order to release the,

cargo, the defendants, as before mentioned, paid the sum of

6611. into a bank to a joint account. Th e plaintiffs having

brought this action, th e defendants applied under s. 4 of the

Arbi trat ion Act, 1889, for a stay in order tha t t he disputemight be referred in accordance with the arbitration clause in

the charterparty.

On the application coming before Channell J. at chambers

he was of opinion that the words " in the loading " in clause 39

of the char terparty mea nt " during the loading," and on th at

ground he refused a stay. He also decided th at the case was

not one in which, in the exercise of his discretion, he would

grant a stay.The defendants appealed.

July 25. Pichford, E.G., and Leslie Scott, for the defendants.

Th e matt er in dispute in this action comes with in the te rms of

th e provision for arbitration contained in clause 39 of the

charterparty, which is not confined, as is suggested by the

plaintiffs, to a dispute arising in th e course of the loading. In

this case th e defendants are both char terers and holders of th ebill of lading. Th e contract as between the shipowners and.

the charterers must be looked for in the charterparty, and not.

in the bill of lading, which does not as between the ship-

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2 K. B. KING'S BENCH DIVISION. 795

owners and the charterers supersede the cha rte rpa rty , but O.A.

only operates as a receipt for the goods: see Bodoconachi v. 1905

Milbum (1) and per Lord Bramwell in Wagstaffv. Anderson (2) TEMPERLEY

and Seioell v. Burdick. (3) This is not like a case where th e s | ^ ^ 0

bill of lading has been indorsed by the charterer to an indorsee COMPANY

for value. The case of Hamilton & Co. v. Mackie dt Sons (4) SMYTH & Co.

is distinguishable. The dispute in th at case arose between the

shipowner and the consignee of the goods with regard to bill of

lading freight, and the arbitration clause was expressly con

fined to disputes arising under the charter. Th e case of

Bunciman d Co.v. Smyth & Co. (5), which will be relied onby the plaintiffs, purported to be decided on the authority of

Hamilton & Go.v. Mackie d- Sons (4), but the facts of the

case did not really bring it within tha t decision. If there is

anything in the decision in Gullischen v. 'Stewart Brothers (6)

to the contrary of what was laid down in Bodoconachi v.

Milbum (1), the latte r case ought to be followed, being later

in point of date.

If necessary, the defendants will contend tha t, on t he t rue

construction of the bill of lading, it incorporates the provision

for arbitration contained in clause 39 of the char terpar ty.

The bill of lading incorporates the terms and exceptions of the

charterparty, so far as not inconsistent therewith, and provides

that the shipowners shall have an absolute lien on the cargo

for demurrage. Th e right to demurrage and its amount can

only be ascertained by looking back to the te rms of the charter-

party, including clause 39, the strike clause, which provides

for arbit rat ion in the event of such .a dispute as has here

arisen. The re is nothing inconsis tent with tha t provision in

the bill of lad ing . I t may be that the effect of the cesser

clause is th at any rig ht of t he shipowners to demurrage mus t

be enforced by means, of the lien given on t he cargo, and no t

against the charterers personally; but the existence of that

lien for demurrage must depend on the terms of the char ter-

( (1) (1886) 17 Q. B. D. 316; 18 (4) (1889) 5 Times L. E. 677.

Q. B. D. 67. (5) 20 Times L. R. 625.

(2) (1880) 5 C. P. D. 171. (6) (1884) 13 Q. B. D. 317.

(3) (1884)10App.Cas.74,atp.l05.

3 H 2 2

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796 KING'S BENCH DIVISION. [1905]

C.A. party, and the exceptions mentioned in clause 39, which pro-

1905 vides the means for determining in certain cases whether

TEMHSRLEY demurrage has been incurred; and the bill of lading must beSTEAM construed as incorporating the provisions of the charterparty

COMPANY for the purpose of determining whether demurrage has been

SMYTH'& CO. incurred, and therefore the shipowners have a lien for it.

It is not disputed that it is matter of discretion whether

the Court will stay the action, and to some extent no doubt it

will have regard to the balance of convenience in determining

whether it will do so or not. But, as regards any incon

veniences which may be occasioned to the plaintiffs by havingto proceed to arbitration at the present time in the Argentine

Eepublic, it must be remembered that the parties agreed that

any dispute of this kind should be settled there, and the

plaintiffs have brought these inconveniences upon themselves by

refusing to have the matter dealt with at Bahia Blanca before

the vessel sailed from there. They ought not to be allowed

to escape from their bargain because they have made it

inconvenient for themselves to fulfil it.[They also cited Bestitution Steam Ship Co. v. Pirie

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and nice questions as to what the law of England is where the C.A.

cause of delay in loading is that the vessel cannot get a turn 1905

owing to the congestion of the port. It is not satisfactory that TEMPERLEYsuch a question of English law should be determined by lay s^pp*Garbitrators at Bahia Blanca. It appears, according to the COMPANY

defendants' contention, that it may be a nice question of law SMYTH & do.

whether under the circumstances the plaintiffs have obtained a

lien on the cargo.

Then, is there any agreement subsisting between the plain

tiffs and the defendants to refer this dispute to arbitration?

The charterers' liability ceased under the cesser clause whenthe ship had loaded a full cargo which would cover the bill of

lading freight and other charges. That being so, the plain

tiffs have no remedy against the defendants personally on the

charterparty, but only by way of lien under the bill of lading.

It is submitted that the provision for arbitration in the charter-

party is not incorporated by the bill of lading. Gullischen v.

Stewart Brothers (1) is an authority in the plaintiffs' favour.

That case has never been doubted, and is, it is submitted, goodlaw. The decision there was to the effect that, where the

charterparty contained a cesser clause, and the charterers were

named in the bill of lading as consignees of the cargo, the

liability under the charterparty ceased by virtue of the cesser

clause, and the bill of lading became the operative instrument

between the parties, but, inasmuch as it incorporated the

provisions of the charterparty as regards demurrage at the port

of discharge, it could not be read as incorporating the cesserclause as regards the liability of the consignees upon the bill of

lading for that demurrage. The charterparty contract ceased

in this case by virtue of the cesser clause as soon as the ship

was loaded, and the bill of lading cannot be construed as incor

porating the provision for arbitration contained in clause 39

of the charterparty, that clause not being consistent with the

terms of the bill of lading. To say that the charterparty must

be referred to, in order to see what the liabilities as to freight,demurrage, &c, under the bill of lading are, is quite different

from saying that a provision in the charterparty as to arbitration

(1) 13 Q. B. D..317.

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C. A. must be incorporated. Th e cases, such as Serraino v. Camp-

1905 bell (1) shew that the principle is that the provisions of the

TEMPEELEY charterparty must be treated as incorporated only so far asSHIPPING

t l i e y r e l a te to what has to be done under the bill of lading.

COMPANY Bodoconachi v. Milburn (2) cannot be treated as overruling

SMYTH & Co. Gullischen v. Stewart Brothers. (3) In Bodoconachi v. Mil-

burn (2) the jury had been asked whether the charterers had

agreed to accept the bills of lading as mere receipts for the

cargo, and they had answered th at question in the affirmative.

Th e decision must , it is submit ted, be read in the light of th at

finding. The decision in Bunciman d Co. v. Smyth d Co. (4)is directly in th e plaintiffs' favour. I t is very difficult to

reconcile the view taken in Bodoconachi v. Milburn (2) with

what was held in Hamilton d Co. v. Mackie d Sons (5), which

is really undis tinguishable from th e present case. I t is not

easy to work out the dicta in Bodoconachi v. Milburn (2) and

Sewell v. Burdick (6), upon which th e defendants rely. How

can the bill of lading only be a receipt in the hands of a

charterer, but become a substantive contract in the hands ofan indorsee of the bill of lading ? [They cited on this point

Turner v. Haji Goolam Mohamed Azam. (7)]

It is further submitted that Channell J. was right in holding

that the provision for arbitration in clause 39 of the charter-

party. does not apply to the case of a dispute arising after the

completion of the loading and departure of th e ship from the

port of loading, bu t to disputes about incidental questions

arising from time to t ime in th e course of th e loading, as to

the manner of loading to be adopted and such like matters,

e.g., as to whe the r the ship is to take in cargo at more than

two hatchways at a time.

Pick/ord, K.C., in reply. No question of Engli sh law will

arise on the arbit ration. I t is not disputed by the defendants

that , if the delay in loading did not arise from one of the causes

(1) (1890) 25 Q. B. D. 501; [1891] (3) 13 Q. B. D. 317.

1 Q. B. 283. (4) 20 Times L. E. 625.

(2) 17 Q. B. D. 316; 18 Q. B. D. (5) 5 Times L. B. 677.

67. (6) 10 App. Cas. 74, at p. 105. -

(7) [1904] A. C. 826.

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excepted by the charterparty, the demurrage was incurred, and c.A.

the plaintiffs had a lien for it . The only question which will 1905

be raised before the arbitrators will be whether the delay in x E M P E R L E Yfact arose from one of the excepted causes. STEAM

r SHIPPING

COMPANY

Cur. adv. vitlt. SMYTH'& CO.

Aug. 7. COLLINS M.E. read the following judgment:This

is an appeal from Channell J., who refused to stay proceedings

with a view to a reference under s. 4 of the. Arbitration Act,

1889. The plaintiffs are the owners of the steamship Wood-bridge, and have brought this action for a declaration that they

are entitled to a lien to the amount of 661Z. on a cargo carried

in the said steamship from Bahia Blanca to Manchester under

a charterparty. The defendants, who are the charterers and

also holders of the bill of lading/, dispute the plaintiffs' right to

the amount claimed, but have paid it into a bank in the joint

names of the parties so as to release the cargo. The lien.

claimed is for demurrage at the port of loading. The defendants contend that the question whether any such demurrage is

payable or not depends on clause 39 of the charterparty, which

provides that, should any dispute arise under that clause in the

loading of the steamship, it shall be settled by arbitration; arid

they accordingly apply under s. 4 of the Arbitration Act, 1889,

to have the dispute referred to arbitration as provided by the

clause. The plaintiffs contend that, as a matter of construc

tion, the clause does not cover the dispute in this case, andChannell J. has accepted that view. They also contend that,

having regard to the cesser clause in the charterparty and to

the fact that the defendants, although charterers, are holders

of the bill of lading, the arbitration clause, even if applicable to

the facts, cannot be invoked. The main argument before us

has been on the latter point.

The charterparty purports to be made between the plaintiffs

and ]?. M. Nicholson as charterer. Nicholson was, in fact, the

agent for the defendants. The cesser clause (clause 31) is as

follows : [The Master of the Eolls read the clause.] Clause 23

. provides for the rate of loading. That clause and clause 39iare as

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800 KING'S BENCH DIVISION. . [1905]

c. A. follows: [The learned judge read those clauses, and continued: ]

1905 First, with regard to the construction of clause 39 itself: I

TEMPEKLBT- cannot agree with Channell J. that it relates only to a disputeSHIPPING *na* m u s * a " s e fr- settlement before the loading is complete.

COMPANY It seems to me that the dispute arises " in the loading " withinV. t

SMYTH & Co. the meaning of the clause if the loading is claimed by one* coiHnsM.n. party and denied by the other to have been delayed by one of

the causes named in the clause, and none the less because theextent of the delay cannot be ascertained until the loading hasbeen completed.

With regard to the point that clause 39 cannot apply byreason of the cesser clause and the fact that the charterers are

also the holders of the bill of lading, if the case were free from

authority, I cannot think that there would be any difficulty.

A dispute has arisen between two parties to a contract by

which they have agreed that in an event which has happened

there shall be an arbitration. Why is the arbitration not to

take place ? The fact that the liability of the charterers is to

cease on shipment of the cargo cannot affect the matter becausethe clause is quite independent of whether personal liability

subsists or not. It is common ground that a lien subsists if

anything is due, and the only question is for what amount.

Why is the amount not to be ascertained in the manner pro

vided by the contract ? The cesser clause itself cannot bring

about this result, and, if it can be reached at all, it must be

because of the bill of lading. But the bill of lading in terms

provides that " all the terms and exceptions contained in thecharterparty or freight contract are herewith incorporated and

form part hereof," and further " the owner or master of. the

vessel shall have an absolute lien and charge upon the cargo

. . . . for the recovery and payment of freight and demurrage

and all other charges whatsoever." I can see nothing at all

inconsistent in the provision of the charterparty that the

amount of demurrage at the port of loading is to be ascer

tained by arbitration at the.port of loading, and the provisionin the bill of lading that there is to be a lien for the amount,

so as to prevent the former provision from operating- between

the parties to the charterparty, who are also the parties to the

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bill of lading. Apart from author ity , I think this would be c. A.

clear. 1905

It is, however, necessary to examine the authorities, and the .TEMFEBLEYrespondents can certainly vouch one in their favour, which does . g|^*G

not seem to be distinguishablenamely, Runciman & Co. v. COMPANY

Smyth d- Co. (1) That case, however, purported to be decided SMYTH & Co.

on the authority of Hamilton d Co. v. Mackie dc Sons. (2) This coin M.R.

latter case was an action by the shipowner against t he indorsee

of the bill of lading who was not the charterer, and was .for bill

of lading freight. The case is very short ly reported, and I.will

read the judgment of Lord E sher : " The law on the subjecthad been laid down several times. "Where there was in a bill

of lading such a condition as this , ' all other condit ions as per

charterparty,' it had been decided that the conditions of the

charterparty must be read verbatim into the bill of lading as

though they were there printed in extenso. Then if it was found

that any of the conditions of the charterparty on being so read-

were inconsistent with the bill of lading, they were insensible

and mu st be disregarded. Th e bill of lading referred to thecharterparty, and therefore, when the condition was read in,

' all disputes under this charter shall be referred to arbitration,'

it was clear tha t that condition did not refer to disputes under

the bill of lading, but to disputes arising under the charter-

party. The condition, therefore, was insensible, and had no

application to the present dispute which arose under the bill of

lading." He treats the dispute in tha t case as arising exclu

sively under the bill of lading, and not under the charterparty,.and therefore as not covered by the clause which related to

disputes under the charter only. Here the dispute arises under

the charterparty and is between the parties to it, and, unless as

between these parties the bill of lading has annulled this part

of the contract of the char terpar ty, it still subsists and binds

the parties. The re is no doubt that , where the charterer takes

the bill of lading in his own name , the ri ghts and obligations

as between him and the shipowner are different from those ofa person other than the charterer who has become the holder

of a bill of lading purpor ting to incorporate the char terpar ty,

(1) 20 Times L. B, 625, . (2) 5 Times L. B. 677.

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0. A. though the precise extent of the difference is not quite clear.. In

1905 Rodoconachi v. Milium (1), decided in 1886, Lord Esh er M.E.

TEMPEBLEV" sa ys : " In my opinion, even so, unless there be an express pro-SmrHNG Y^

on m * n e documents to the contrary, the proper construction

COMPANY 0f the two documents taken together is that as between the

SMYTH & Co. shipowner and the charterer the bill of lading, although mcon-

coiiira M.R. sistent with certain parts of the charter, is to be taken only as

an acknowledgment of th e receipt of the goods " ; and he

adopts fully what was said by Lo rd Bramwel l in Sewell v.

Burdick. (2) On th e other hand* in Gullischen v. Stewart

Brothers (3), decided in 1884 in the Court of Appeal consistingof Lord Coleridge C.J., Brett M.E., and Bowen L.J., it was

held that a charterer who was also the bill of lading holder

could not set up the cesser clause in the charter as an answer

to a claim for demurrage at the port of discharge. Th e broad

distinction between the position of a charterer, who ships and

takes a bill of lading, and an ordinary holder of a bill of lading

is, I think, that in the former case there is the underlying con

tract of the charterparty which remains until it is cancelled,and taking a bill of lading does not cancel it in whole or in part

unless it can be inferred from the inconsistency of the terms

of th e two documents that it was intended to do so. On th e

other hand, in the case of the holder of the bill of lading who

is not the char tere r there is no presumption th at he contracts

in any terms but those of the bill of lading, and, if the bill of

lading purports to import the char terparty, the presumption is

that it incorporates only those clauses which relate to the conditions to be performed by the receiver of the goods: Russell v.

Niemann. (4) With all deference to th e learned judges who

decided it, I think Runciman & Co. v. Smyth & Co. (5) is not

supported by the author ity relied upon, and is not in accordance

with principle.

If the clause is operative, as I think it is, between the parties,

I think the fact that the ship sailed away from Bahia Blanca

without performing its conditions, though pressed to do so,

(1) 18 Q. B. D. 67, at p. 75. (3) 13 Q. B. D. 317.

(2) 10 App. Cas. 74, at p. 105. (4) (1864) 17 C. B. (N.S.) 163.

(5) Times 20 L. R. 625.

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debars the owners from relying upon the inconvenience of con- C. A.

ducting th e reference in the Argentine Eepublic now. I am of 1905

opinion, therefore, that the appeal should be allowed. TEMPEBLEY. STEAM

SHIPPING

MATHEW L.J. I am of the same opinion, and I desire to COMPANY

add only a few words. If, in order to dispose of the matter SMYTH & Go.

by arbitration, it would be necessary for the arbitrators to

decide doubtful questions of English law, I should have been

of opinion that we ought not to interfere, or to withdraw

those questions of law from the Commercial Court. It seems,

however, clear to me that upon the facts no such questions willarise before the arbitrators, and we have the undertaking of

defendants' counsel that such questions will not be raised

before them. I do not think that it would be proper to remit

to a tribunal of arbitrators at Bahia Blanca questions of English

law, which they would not be competent to decide, such as the

questions, under what circumstances a bill of lading supersedes

a charterparty, and whether there is an incorporation of terms

of a charterparty in a bill of lading, and, if so, whether itincorporates more than the terms relating to the discharge of

the cargo, questions as to which the law cannot be said to be

altogether clear. But, the suggestion that such doubtful

questions as these would have to be submitted to the arbitra

tors having been disposed of, the case appears to me to be

clear. There seems to be no question as to the construction of

the charterparty. It contains the ordinary cesser clause, which

substitutes a lien for demurrage for the personal contract ofthe charterers; and it also contains clause 39, which has been

read; by the Master of the Eolls, and which was no doubt

inserted by the parties with knowledge of a disturbed state of

affairs at the port of loading. The ship arrived at the port of

loading, and was detained there; and a dispute then arose

whether that detention was by reason of one of the matters

excepted by clause 39 of the charterparty or by reason of

default on the part of the charterers. It seems to me clearthat this dispute ought to have been settled at Bahia Blanca

as provided by the terms of clause 39 of the charterparty, but

the master determined to break the contract in that respect,

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C.A. and absolutely refused to proceed to arbitration. On that

1905 ground I do not think that the judgment of Channell J. can be

TEMPEBLEY supported. He appears to have thought that the charterersSmpriNo w e r e deprived of the benefit of clause 39, because they did not

COMPANY take the necessary steps to get the dispute referred at Bahia

SMYTH & Co. Blanca before the ship sailed; but the master would not

Mthew L.J. submit to any discussion of the matter, and at once sailed with

the cargo. When the ship arrived at her port of destination

the shipowners set up a claim for demurrage, and said they

had nothing to do with the provision for arbitration; and the

amount in dispute has been deposited in a bank in joint namespending settlement of the question. It was clearly intimated

to the shipowners by the defendants that, if they brought an

action, an application would be made to stay the action with a

view to the matter in dispute being referred to arbitration in

accordance with the terms of the charterparty. The shipowners

nevertheless commenced an action in the Commercial Court.

Thereupon an application to stay the proceedings was made,

and we have to say whether it should be granted. I have cometo the conclusion that it ought to be granted. I pass by the

question of law which has been fully discussed by the Master

of the Eolls, and come to the question of convenience. It has

been urged on behalf of the shipowners that it would be very

inconvenient that the matter should be referred to arbitration

at Bahia Blanca after this lapse of time, when the voyage is

over, and the captain and crew of the vessel have been dis

persed. I am not clear that the captain or any of the crewwould be a necessary witness in the arbitration, and in any

case, if there is any inconvenience occasioned to the shipowners '

in this respect, it is their fault and theirs only. Looking at the

case from the point of view of the charterers, and endeavouring

to see on which side the balance of convenience lies, it must be

observed on the other hand that, if the action proceeded in the

Commercial Court, it would be necessary for the charterers to

bring witnesses from Bahia Blanca, or obtain a commission toexamine them there, which must involve serious delay and

expense; and I decline to impose on the charterers a burden

such as this, against which they have protected themselves by

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the express terms of the charterparty. For these reasons I c. A.

think that the action should be stayed, and that, only questions loos

of fact appearing to be involved, those questions ought to be TEMPERLEYdisposed of by arbitrators in the Argentine Eepublic. I think s ^ p ^ 6the appeal should be allowed, and, subject to the approval of COMPANY

the Master of the Bolls, I think that the arbitrators should SMYTH'&CO.

be directed by our order to deal with questions of fact only,Matkew L.J.

and make their award thereon, and that the award, when

made, should be brought before the Commercial Court, that

the stay of proceedings should continue until the award is so

brought before that Court or further order, and that the costs

of the action and reference should be dealt with by the

Commercial Court. (1)

Appeal allowed.

Solicitors for plaintiffs: Botterell dc Boche.

Solicitors for defendants : Field, Roscoe dt Co., for Batesons,

Warr dc Wimshurst, Liverpool.

E. L.

[IN THE COURT OF APPEAL.] C. A.

SCAKBOEOUGH AND WIFE v. COSGEOVE. r ^ ' July 29, 31 ;

NegligenceBoarding-house KeeperGoods of QuestTheft by Inmate.

The plaintiffs became boarders in a boarding-house kept by the defend

ant. They informed the defendant's manager that they had property

which they wished to keep under lock and key, and asked for a key of

their bedroom door. They were told by the manager that a second

key could not be supplied, that they must not remove the key from the

lock, as it was required for the purpose of giving the servants access to

the room, and that the room would be quite safe as the people in the

house were all known. On a subsequent occasion the plaintiffs again

became boarders in the defendant's boarding-house, and occupied the same

bedroom, in which a chest of drawers had in the meantime been placed.

They asked the manager for a key of the chest of drawers, but none was

supplied. The female plaintiff having left some jewellery in a locked handbag in one of the drawers, it was stolen by another inmate of the house,

who had been admitted as a boarder without references, or introduction,

(1) The order ultimately made by the Court embodied these terms.

[1905] 2 K.B. 791

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Transcript of [1905] 2 K.B. 791