John Weale *

The s.s. "WESTFALIA" was built on the Clyde by William Hamilton & Co., of Port Glasgow and delivered in July,1882. Her main dimensions were: Length – 241 feet; breadth – 33.4 feet; depth - 13.9 feet. Her register tonnage was: gross – 1,135; net – 720; and her deadweight was about 1,550 long tons. Lloyd’s Register describes the hull as steel, but the charter party states that it was built of iron.

Having one main deck, the vessel is further described as having a raised quarter deck of 83 feet in length, a (central) bridge deck of 61 feet, and a forecastle of 36 feet. This implies a fairly typical well-decker of that period. The number of holds is not recorded; but there were at least three hatches.

The prime mover was a compound inverted steam engine, built by Fleming & Ferguson, Paisley, of 130 horse-power, driving a single screw propeller. The high pressure cylinder was of 29 inches diameter, and the low pressure 55, with a length of stroke of 39 inches. In Lloyd’s Register for 1887/88, the boiler pressure is given as 80 pounds per square inch; but in later editions, this was reduced to 75. The number of masts is not recorded by Lloyd’s Register; but they were clearly rigged for sail.

"WESTFALIA" was built for the account of Walker, Donald & Co. of Glasgow. In 1887 (probably before the accident which gave rise to the dispute), she was sold to R. H. Elder. The vessel did not enjoy a very long life. By the time the case reached the Inner House of the Court of Session, she was already a total loss, having been wrecked near Santander on 5 February, 1889, while on passage from Huelva to Garston with a cargo of esparto grass.

From the text of the charter party as reproduced in the Joint Print of Documents, one cannot be certain whether it was a specially drafted agreement, or was on a standard printed form with manuscript amendments; but from the uncompleted spaces (e.g. for the vessel’s classification) and the general lay-out, it seems very likely that it was the latter.

The parties to the agreement were Hugh Hogarth, as managing owner of the vessel, and Alexander Miller, Brother, & Company. There is nothing in the reports or other documents to suggest that Hogarth was anything more than an arm’s-length manager: indeed, in his letter to the charterers of 26 October, he states: "As explained to you, I am not working for myself ..."

"WESTFALIA" was time chartered for a West African round voyage, with the option for a second, to be declared fifteen days prior to the end of the first. The first voyage was performed without incident; and the charterers exercised their right to a further trip.

The off-hire clause stated:

The homeward passage was not without incident. On 15 September, the cook died; five days later, another member of the crew disappeared without trace; and at some point, the chief engineer was injured, and could not work in the engine-room. There is also evidence that the Master, Captain Duncan Murphy, was not in the best of health.

A survey was carried on 3 October by Mr R. A. Biggleston, a local engineer, and Mr J. Elliott, first engineer of s.s. "MEQUINEZ", then in port. They concluded that the damage was indeed caused by the fracture of the piston rod of the high pressure cylinder, and that the low pressure cylinder was still in good condition. Because of the lack of repair facilities at Las Palmas, they recommended that the ship should proceed to the nearest English port for repairs.

The charterers undoubtedly shared the owners’ desire to get the vessel to the first port of discharge as quickly as possible. Not only had they already sold the Hamburg cargo for October delivery, they had also fixed the next outward cargo from Rotterdam and Liverpool. The position taken by their insurers was that they should act as would a prudent uninsured.

The estimated cost of the towage was £1,100. On the basis of approximate values of £13,000 for the cargo (landed) and £5,000 for the vessel (unrepaired), it was agreed that the charterers would provisionally bear 13/18, and the owners 5/18; and, once the final adjustment was made, the amount actually due from the charterers was assessed at £867, 9s,11d.

It seems clear that the low pressure cylinder was working throughout the sea passage, and also on the way up the River Elbe.

The ship reached Cuxhaven on 29 October. Having obtained pratique, she then proceeded under tow to Altona, where she anchored on the afternoon of the 30th to await the tide. That afternoon, with the pilot on board and two tugs in support, the ship ran aground, and could not proceed until the next high water, early on the following morning. She eventually berthed at Harburg at 1300 on 31 October.

Discharge commenced on the next day, and was completed on 10 November. Restowage of the remaining Antwerp cargo was finished on the same evening. The engine repairs were completed on the 11^th; and the vessel then departed without further incident. She proceeded to Antwerp to discharge the rest of the cargo, and thence to Cardiff for redelivery.

On 28 November, Dixon & Harrison, the brokers, wrote to Hugh Hogarth:

"We learn this afternoon that you have been calling on Messrs. Miller about payment of hire per ‘WESTFALIA’, and that there exists some difference of opinion between yourself and Messrs. Miller on this subject. We take the liberty of mentioning one or two points:-

To this, Hogarth responded the following day:

The next item in the Joint Print of Documents is a letter dated 6 January 1888 from Hogarth to the charterers - evidently, little progress had been made in their discussions:

"I am in receipt of yours of this date, with your statement of how the hire of the ‘WESTFALIA’ stands, which is altogether preposterous.

P.S. According to your way of it, it would be a good paying thing for you if every steamer broke down so. It would save you fifteen to twenty days’ hire, besides the coal they would consume for you in making the passage. ..."

The owners ("pursuers") commenced their action before the Court of Session on 13 March 1888. The matter came to the Outer House towards the end of October, with the owners claiming unpaid hire in the sum of £341, 4s. 8d. In their pleadings, they averred:

The Lord Ordinary (Lord Trayner) determined the matter in favour of the owners, finding that, on 18 October, the vessel was in an efficient state to resume her service:

"The pursuers seek decree for the hire of the steamer for the period between 18^th October and 10^th November, which the defenders refuse to pay on the ground that ‘WESTFALIA’ was not in ‘an efficient state to resume her service’ during that period. I think the defenders are wrong. The service which the steamer was bound to render to the defenders under the charter-party was to carry the cargo to the port of delivery. That the ‘WESTFALIA’ was in a condition efficiently to render this service is best proved by the fact that she did it. The cargo was carried and safely delivered. The break-down in the machinery had not rendered the steamer inefficient for her service, although it had made her less efficient than she had been; and had she proceeded on her voyage, instead of putting back when her engine broke down (as on the evidence I am prepared to hold she could quite safely have done), I think there would have been no reason for suggesting that her full hire had not been earned."

In light of the later judgments, it is interesting to note that the Lord Ordinary was very ready to accept that the vessel could have made the passage on her own, without the supporting tug. This finding was based on the testimony of Hogarth’s own marine superintendent, Obed Murphy, and also on that of two experts, both of whom cited numerous instances of vessels which had made lengthy passages with only one of the two cylinders of a compound engine operating. These experts were James Burns, an experienced consulting engineer, and Walter Paterson, the engineer superintendent of Anchor Line.

The Lord Ordinary was not impressed by the argument of the charterers ("defenders") that they should not be liable for the hire because they had already paid much more than that to get the vessel from Las Palmas to Harburg:

"Nor, in the circumstances, can they plead this, although they paid part of the expense of the tug, for they agreed that the whole expense of the tug should be treated as general average, and it was so treated. But payment of general average, whether the amount be large or small, does not exempt a consignee from liability for freight, nor affect the shipowner’s right to his hire, which comes to him in place of freight. There is no evidence whatsoever that the arrangement made as to average was intended to supersede or affect to any extent the rights and obligations of parties under the charter-party."

So the matter was strictly a question of construing the charter party and nothing more: in effect, the towage agreement was a separate and independent contract. The only adjustment should be for the extension of the sea passage:

"The voyage in question from Las Palmas did not exceed much, if any, the average time occupied by the ‘WESTFALIA’ on such a voyage. Yet it does appear from the evidence of the pursuers’ own witnesses that the ‘WESTFALIA’ did not go at the full speed customary with her when both engines were working. Whether this, on a strict construction of the charter-party, entitles the defenders to any deduction from the stipulated hire, I am by no means clear, but I think they are in equity entitled to some deduction in the circumstances, and accordingly I will allow them £21, 4s 8d., which is nearly equal to the amount of the steamer’s hire for a day and half."

Thus, although the Lord Ordinary’s concession of 36 hours or so to the charterers was evidently based on equitable principles rather than a strict construction of the off-hire clause itself, the effect of his approach was to treat the clause as though it was what is now termed a "net loss of time" clause.

In relation to the sea passage, the Lord Justice-Clerk concentrated on the issue of seaworthiness. It was, he found, quite irrelevant to enquire whether the ship would have been able to make the passage to Harburg unassisted by the tug (which he doubted). The surveyors were not prepared to grant her a certificate of seaworthiness; and so, as a matter of fact, she was not in a seaworthy condition, and the addition of the tug could not change this:

"The question whether, as between the pursuers and the defenders, the ship was seaworthy when at Las Palmas, seems to be conclusively settled by the fact that the surveyors at that place would not allow her to proceed to sea as a seaworthy ship."

In this situation, the parties effectively had to negotiate from scratch; and that is what, in his view, they did:

"The position of the parties when the negotiations began was, that they were both dealing with an unseaworthy vessel, and devising an expedient to get her home in her unseaworthy condition. I think she was plainly unseaworthy, ‘broken down’ as the pursuers themselves expressed it in their letter, and that they were quite right to deal with the vessel on that footing. She could not come home by her own power, for the surveyors would not allow her to go, and it would take two months to repair her, and therefore as a special arrangement for a special period, during which she was unseaworthy and required to be brought home in that condition, the tug was hired and sent out. The same arrangement settled between the parties their whole relative duties and liabilities for the period during which the vessel was thus being brought home in her broken-down state, and I think the defenders’ sole duty for that period was to pay the £800 which they agreed to pay as their share in that transaction."

In effect, if the owners expected to be paid hire for the passage home, then that is what they should have bargained for in the towage agreement.

With regard to the vessel’s stay at Harburg, the Lord Justice-Clerk agreed with the Lord Ordinary:

"Though unseaworthy for the purpose of navigation, the ship was lying at the port with her cargo in her, keeping it dry and safe, and she was quite fit to be discharged in the ordinary way without special labour owing to her condition. Therefore during the time of discharge she was fulfilling all of the duty she could be called on to fulfil, and her power to do so was not affected by her unfitness to go to sea, and therefore I hold that the hirers must pay for the time of discharge."

Rather surprisingly, he then concludes:

"But it is another question whether the defenders must pay for the whole period. I think they must pay for so many days as with ordinary promptitude in the work it would have taken to discharge the ship. My opinion therefore is that the interlocutor of the Lord Ordinary ought to be recalled, and that the pursuers should only have decree for hire for so many days as would ordinarily be occupied in discharging the vessel."

Concurring, Lord Young was at pains to distinguish this comparatively new-fangled form of charter from a conventional voyage charter:

"The charter-party though not at all unprecedented is a somewhat unusual one. It is not a contract for the carriage of goods. It is a contract for the hire of a ship, and the shipowners are no more carriers of goods than would be the owners of a waggon who hired it out to a carrier of goods, or to a man who wished to carry his own goods. … The hire is to be paid monthly in advance, and its payment does not at all depend on the carriage of goods, for it is to be paid though no goods are carried, or the goods are lost, and indeed assuming a loss it would have been paid in advance up to the hour of the loss. This, of course, differs much from an ordinary charter-party, under which, as a contract for the carriage of goods, there is no freight payable except for goods delivered in safety and in like condition as when shipped."

For him, it was plain that the vessel was inefficient at the very least until she reached Harburg:

"I think that the merchant would have been quite entitled to decline such an offer (i.e. of the towage arrangement), and that the shipowner would not have been fulfilling his obligation under the charter-party by offering to substitute a tug for the ship’s own power."

As for the discharging time, Lord Young was not persuaded by the owners’ arguments:

"The question as to the liability to pay freight while the cargo was being taken out of her is attended with some doubt in my mind. My inclination is to allow nothing, but as a solution of the difficulty, I would assent that there should be allowed, in the circumstances, a sum for a reasonable period in which to discharge the ship, and that four days would be such a period, and the sum £60."

Lord Lee agreed with the Lord Ordinary that payment of a general average contribution should not exempt the cargo interest from liability for freight; but the real question was whether the arrangement in this particular case was such as to give the owner a claim for hire:

"That question seems to depend on whether the arrangement was one for getting the steamship to a place where she could be repaired and discharged, or was one whereby she was to be held as efficient for her service. The words of the charter-party must be attended to. They are very explicit. They are ‘that in the event of loss of time from … break-down of machinery, want of repairs or damage, whereby the working of the vessel is stopped for more than forty-eight consecutive working hours, the payment of hire shall cease until she be again in an efficient state to resume her service.’ Now, it is to be observed that this is not an agreement that time lost in consequence of a break-down shall be deducted. It is an agreement that in case of a break-down the hire shall cease until the ship is again efficient for her service. I think that when the break-down which took place had occurred, and when the shipowner was making the arrangement about bringing the ship home which he did make, he should have made it clear that the hire was to go on from the date of the arrival of the tug, if he intended to maintain that it did so. … I think that knowing as the shipowner did the clause of the charter-party, it was for him when he came to arrange with the owner of the cargo that the tug should be sent out – an arrangement which the owner of the cargo was not bound to agree to – to see that it was understood as a part of the arrangement that the hire of the vessel should run on as if the ship were efficient and the break-down had not taken place. But he made no such provision in coming to that arrangement."

As for Harburg, he said:

"I think the ship while she lay there was efficient for the purpose of safely holding the cargo and discharging it. The view Lord Young has expressed on this matter is certainly difficult to overcome, but I think it is possible to hold that, while the ship lay in Harburg for the purpose of discharging cargo, she was not inefficient for her service. As to the time which should be allowed for that … I think … that the shipowner may be allowed four days as the time reasonably necessary for the discharge. For the shipowner was not responsible for slowness of the stevedore."

The argument of the appellants was succinctly summarised by the Appeal Cases reporter:

"The meaning of the word "efficient" in the contract must be taken to be that the ship was to be efficient or fit to complete the service without time being lost; and a ship which became efficient by the use of one engine inside and the supply of another outside in a tug fulfilled the contract. Had the ship in her disabled condition been picked up by another ship and so brought home, not only the hire would have been payable, but also the freight due for carriage of merchandise in the vessel. At all events, the respondents have had the use of the ship to carry or warehouse their goods, and a reasonable allowance is due in respect of such benefit.

Secondly, the appellants are entitled to hire for the whole time the ship was unloading, it being a service for which she and her machinery were quite efficient."

Having heard this argument, the Court requested the respondents to confine themselves to the claim in respect of the period of discharge at Harburg. Their argument is also summarised:

"A cesser of the right to hire having commenced, there could not be a resumption of such right until the ship had been repaired and again efficient to perform every function she might be called upon to perform. The expression, "efficient to resume her service," must be taken to mean total and absolute efficiency. The ship could not be said to be efficient during the period of unloading, when the service required of her was not merely to be at Harburg, but to be able to put to sea at the order of the respondents.

"My Lords, the whole of this case, as it appears to me, turns upon the true construction of the contract which regulates the relations between the parties, and there are two very diverse views which have been presented to your Lordships upon the true construction of the language of that instrument. I think that each part of the contract must be looked at with care, and that it must be remembered that in the construction of the contract we are not bound simply by the exact words. We must remember that it is a mercantile contract, and we must remember the nature of the subject-matter with respect to which each of the parties was contracting."

In his view, with this particular clause, there must be a loss of time to the charterer; that loss of time must be caused by one of the enumerated causes; and the test for the resumption of hire must be the efficiency of the vessel to perform the service then required:

"What the hirer of the ship is guarding against by this contract with the owner of the ship is, that he is not to pay during such period of time as he shall lose (that is, lose time) in the use of the ship by reason of any of the contingencies which this particular clause contemplates. .... and now come the words upon which such reliance is placed: "until she be again in an efficient state to resume her service." If the contention which has been put forward ... were well founded one might have expected that the parties ... if they had intended that the test should be the efficient state of the vessel as it originally was might very readily have used the words, "until such time as the deficiency of men or stores has been removed, or the breakdown of the machinery has been set to rights, or the want of repairs has been supplied, or the damage has been remedied," and so forth; or the terms might have been inserted that the resumption of the payment shall be dependent upon the vessel being restored to full efficiency in all respects, as to seaworthiness and otherwise, as she was at the time when she was originally handed over. But the parties have not used such language. On the contrary, the test by which the payment for the hire is to be resumed is the efficient state of the vessel to resume her service; so that each of those words, as it appears to me, has relation to that which both of the parties must be taken to have well understood, namely, the purpose for which the vessel was hired, the nature of the service to be performed by the vessel, and the efficiency of the vessel to perform such service as should be required of her in the course of the voyage."

Applying these criteria, it was clear that the ship was not in any sense efficient for the homeward sea passage:

"As a matter of fact, this vessel did not and could not pursue her voyage as a vessel from Las Palmas to Harburg. That another vessel took her in tow, that another vessel accomplished the voyage and brought this vessel, not as an efficient steamer, but as a floating barge, whereby the goods were brought to Harburg, seems to me to be nothing to the purpose. I use that phrase because, although I am aware that it is suggested that the low-pressure engine was used for the purpose of easing the work of the tug, that appears to me to be entirely irrelevant when one is ascertaining whether this vessel of its own independent power was efficient for the purpose of prosecuting the voyage. ... I find, as a matter of evidence, as each Court I think has found, that the vessel was not seaworthy for the purpose of accomplishing her voyage without the assistance of a tug; she did not accomplish her voyage without the assistance of a tug; and in truth, as it appears to me, upon these facts it is clear that the voyage which was accomplished, and the service which it was contemplated this hired vessel was to perform, was performed by another vessel, and that the auxiliary assistance which she gave to that other vessel was not making the vessel herself an efficient vessel for the working of which the hirer was to pay."

Turning to the period of discharge, the Lord Chancellor provided a more resonant version of his third criterion:

"I should read the contract as meaning this ... that she should be efficient to do what she was required to do when she was called upon to do it."

Applying that test, the vessel was efficient for her full working at the discharge port, notwithstanding the concurrent repairing of the high-pressure cylinder:

Lord Watson agreed. With regard to the tow:

"In that state of facts, I cannot find any consideration which points to the propriety of making an allowance by way of quantum meruit to the appellants."

Lord Bramwell had no difficulty with the majority view on the discharging point; but he apparently thought it wrong to read "loss of time" as including partial delay, and he certainly felt that too much was being made of the word "efficient":

"My Lords, I cannot help thinking that most undue importance has been attached to the word "efficient." Now, I look at the meaning of this contract as being this - when there is a breakdown which occasions a loss of time of a substantial character, that is to say, for forty-eight hours at the least, during that lost time no hire shall be paid; but when there is no loss of time in consequence of that breakdown that is no total loss though a delay, then the hire shall be paid. That is the meaning I attribute to this contract. It seems to me to be the ordinary mercantile and reasonable meaning: when you get the benefit of the ship you shall pay for its hire."

As he saw it, the charterers did get the benefit of the ship for the passage to Harburg. True, they had paid for most of the towage, but they did so from choice:

"If he thought fit to pay for the services of a tug for the purpose of accelerating the arrival of the vessel at Harburg, he thought fit to do it for his own purposes. He did not stipulate that if he did so he should not pay for the hire of the vessel; it seems to me that he ought to have done so. ...

It cannot be said that the vessel did not reach Harburg, for she did. It is true she was helped; and then the sort (of) argument used is, "she was not ‘efficient' - she was not efficient for the purpose of her service." I say she was efficient, sub modo, even if the very word "efficient" is to be regarded, because she could do it with help. I accept what has been assumed to be true, that she was not fit to go from Las Palmas to Harburg without help; but she was fit to do it with help, and did it with help. It seems to me, as I have said before, I am afraid more than once, that an undue importance is attached to the word "efficient."... The substantial matter to my mind is that the charterer has got the benefit of the carriage of his goods in that ship from Las Palmas to Harburg, and ought to pay for it."

Lord Herschell also felt that too much emphasis could be placed on the word "efficient", but for different reasons:

With regard to the discharging period, Lord Herschell agreed that the ship must remain on hire:

"It seems to me that during those ten days, whether you lay any stress on the word "efficient" or not, she was in a condition to perform the service that was required of her."

The word "efficient" should not be given any particular importance: "fit" would do equally well. The off-hire clause provided for hire to be suspended until the vessel should be "in a fit state to resume her service". But what service? That same service contemplated, of being a steamship fit for the contractual round voyage:

The final judicial "score-card" may be summarised as follows:

A case involving a similar provision did come before the Court of Appeal in 1936. That charter party was drawn up on the Baltime 1920 form, where the off-hire clause read:

The "HORDEN" shot part of her deck cargo in a heavy squall while on passage from Archangel to Liverpool. This damaged the foremast, so that the forward derricks could not be used to discharge the vessel. Counsel for the owners argued that the words "preventing the working of the steamer" must mean "fully preventing" as distinct from "hindering": as the "HORDEN" was partly efficient, the delay should not fall within the clause.

Lord Roche did not agree at all:

Scott LJ felt that the ‘WESTFALIA’ decision had left open one line of argument: there, the obligation to pay hire had already been interrupted before the towage had commenced, and so the court could not have been considering what caused the hire to cease, but only when it should reattach. But he concluded that such an argument would not serve:

The case has, nevertheless, very largely conditioned the way in which all off-hire clauses are construed by the English courts to this day. Once an issue has been decided by the highest court, it quickly becomes self-evident and axiomatic to the legal practitioner. Before long, it starts to influence the interpretation of other, related issues, descending by unmarked stages into an essential premise of the underlying thought – until, by degrees, it dwindles into trite law. The better trodden the "right" path, the more illogical and absurd the possible by-ways will seem. Here, The "WESTFALIA" is certainly no exception.

First and foremost, Lord Halsbury’s well articulated distinction between "an efficient state to resume the service" and "until the breakdown has been set to rights" has governed the interpretation of off-hire clauses ever since: if the House of Lords had followed the approach of Lord Morris (with which Lord Young was disposed to agree), things would surely be very different today. And in this respect, at least, it is clear that the final decision on the Harburg discharge has been far more influential than the judgment on the tow from Las Palmas.

The case is also important for the implicit recognition that the off-hire clause should operate independently of any breach or fault on the part of the ship-owner. Apart from the comments of Lord Morris, there appears to have been no suggestion that it might be relevant to consider responsibility for the break-down or the ship’s (un)seaworthiness when it left West Africa.

Fourth, The "WESTFALIA" has strongly influenced the approach of the English courts to the New York Produce Exchange form of time charter, although this contains a "net loss of time" clause. This refers to "any other cause preventing the full working of the vessel", which has been held to apply to all of the preceding named causes. As enunciated by Mr Justice Lloyd in The "AQUACHARM", the criterion for deciding whether the full working of the vessel has been prevented clearly echoes Lord Halsbury:

The "WESTFALIA’s" influence, however, goes further than this. The NYPE form specifies that the vessel should be off-hire, not until she should be again fully efficient, but for the time lost by the specified cause. And yet, despite this significant difference in wording, the approach of the English courts has been to construe "the time thereby lost" as meaning "the time thereby lost until the vessel is again in full working order". As Hirst J recognised in 1985, this concept is now so firmly engrained in the judicial interpretation of net loss of time clauses that it would take a radical change in wording to dislodge it.

Most of all, The "WESTFALIA" demonstrates how fluid and uncertain was the legal position at that time with regard to the off-hire clause in particular, and the time charter contract generally. On the facts of the case, matters were complicated by the towage agreement. But even without that, it is evident that some of the judges lacked direct experience with this form of agreement, and were unsure how to pigeon-hole it; and yet, paradoxically, the general shape of the charter party and many of its specific provisions had already crystallised into a form which is easily recognised today.

Montreal, June, 2001

It is this day mutually agreed between Hugh Hogarth, Esquire, managing owner of the good iron screw steamship called the ‘WESTFALIA,’ of 1135 tons gross register, and 720 tons nett register, 130 horse-power, provided with steam-winches, classed .........., of 1550 tons dead weight or thereabouts, inclusive of bunkers, which contain about 210 tons of coals, and Messrs Alex. Miller, Brother & Company, of Glasgow, charterers,

That the said owners agree to let, and the said charterers agree to hire, the said steamship for a voyage as under from the day she is placed at the disposal of the charterers at Swansea or Rotterdam in such dock or at such safe wharf or place (where she may lie always safely afloat), as charterers may direct. she being then ready to receive cargo, with a clear hold, and being tight, staunch, strong, and in every way fitted for the service (and with a full complement of officers, seamen, engineers, and firemen for a vessel of her class and tonnage), to be by them employed in carrying lawful and non-injurious merchandise between such ports within the following limits, viz., Swansea, and/or Rotterdam, or other ports in the United Kingdom and Continent, to such safe ports on the West Coast of Africa, as charterers direct, and back to Europe, as the charterers or their agents shall direct, on the following conditions:-

That the owners shall provide and pay for all the provisions and wages of the captain, officers, engineers, firemen, and crew; shall pay for the insurance of the vessel and for all engine-room and ship stores, and shall maintain her in a thoroughly efficient state in hull and machinery for the service.

That the charterers shall provide and pay for all the coals, port charges, pilotages, agencies, commissions, expense of loading and unloading, and all other charges whatsoever, except those before stated.

That the charterers shall accept and pay for all coal in the steamer’s bunkers at time of taking delivery, and the owners shall, on expiry of this charter-party, pay for all coal left in the bunkers. The prices to be those current at the respective ports of delivery.

That the charterers shall pay for the use and hire of said vessel at the rate of 8s. sterling per gross register ton per calendar month, commencing on and with the day of her delivery as aforesaid, and at and after the same rate for any part of a month; hire to continue until her redelivery to the owners (unless lost) at a safe port in the United Kingdom or on the Continent (between Havre and Hamburg inclusive). Payment of the said hire to be made in cash in Glasgow monthly in advance, without deduction, and in default of such payment or payments as herein specified, the owners shall have the faculty of withdrawing the said steamer from the service of the charterers without prejudice to any claim they, the owners, may have on the charterers, in pursuance of this charter.

That the cargo or cargoes may be laden and/or discharged in any dock, or at any wharf or place that the charterers or their agents may direct, provided the steamer can safely get thereto, and always lie safely afloat.

That the whole reach of the vessel’s holds and usual places of loading, and passenger accommodation, if any (steamer not being required to load more than she can reasonably stow and carry), shall be at the charterers’ disposal, reserving only proper and sufficient space for ship’s officers, crew, tackle, apparel, furniture, provisions, stores, and fuel.

That the captain shall prosecute his voyages with the utmost despatch, and shall render all customary assistance with ship’s crew and boats.

That the captain (although appointed by the owners) shall be under the orders and direction of the charterers as regards employment, agency, or other arrangements; and the charterers hereby agree to indemnify the owners from all consequences or liabilities that may arise from the captain signing bills of lading, or receipts, or from otherwise complying with the same, or following charterers’ instructions, or from any irregularity in ship’s papers supplied by them or their agents.

That the owners shall not be responsible for damages caused by improper stowage, the stevedore being appointed and paid by the charterers. The cargoes to be assorted and trimmed, so that the vessel shall always be seaworthy and fit to proceed on her voyages.

That if the charterers shall have reason to be dissatisfied with the conduct of the captain, officers or engineers, the owners shall on receiving particulars of the complaint investigate the same, and, if necessary, make a change on the appointments.

That the master shall be furnished from time to time with all requisite instructions and sailing directions, and shall keep a full and correct log of the voyage or voyages, which are to be patent to the charterers or their agents.

That the charterers shall have the option of continuing this charter for a further voyage on giving notice thereof to the owner fifteen days previous to the expiry of the first-named term.

That in the event of loss of time from deficiency of men or stores, breakdown of machinery, want of repairs, or damage, whereby the vessel is stopped for more than forty-eight consecutive working hours, the payment of hire shall cease until she be again in an efficient state to resume her service, but should the vessel be driven into port or to anchorage by stress of weather, or from any accident to the cargo, such detention or loss of time shall be at the charterers’ risk and expense. Quarantine (if any) at charterers’ expense.

That should the vessel be lost, any freight paid in advance and not earned (reckoning from the date of her loss), shall be returned to the charterers. The act of God, the Queen’s enemies, fire, restraints of princes, rulers and people, and all other dangers and accidents of the sea, rivers, machinery, boilers, and steam navigation throughout this charter-party always excepted.

That the charterers shall have the right if they so desire to keep a supercargo on board the vessel at their own expense during the continuance of this charter-party.

That should any dispute arise between the owners and the charterers, the matters in dispute shall be referred to three persons at Glasgow, one to be appointed by each of the parties hereto, and the third by the two so chosen. Their decision, or that of any two of them, shall be final; and for the purpose of enforcing any award, this agreement may be made a rule of Court.

That the owners shall have a lien upon all cargoes, and upon all subfreights, for any amounts due to them under this charter; and the charterers shall have a lien on the ship for all moneys paid in advance and not earned.

That the charterers shall have the option at any time during the currency of this charter-party of purchasing the said vessel for the sum of .........

All derelicts and salvage shall be for owners’ and charterers’ equal benefit. Penalty for non-performance of this contract, estimated amount of damages.

A commission of two per cent on the estimated amount of freight is due on signment hereof to Dixon & Harrision, ship lost or not lost, and should the charterers purchase the steamer, and additional commission of .... per cent on the purchase-money shall be due them by the owners.

The steamer to be placed at charterers’ disposal at Swansea or Rotterdam not earlier than 3d April, and should she not be ready at appointed port by midnight of the 10^th April, charterers shall have the option of cancelling this charter. If steamer delivered between 6 A.M. Saturday and 6 A.M. Monday, time not to count. Charterers to give orders as to the port of delivery by the 5^th proximo (March). 26/2/87

Witness to the signature ALEX. MILLER, BROTHER & Co.

of both parties H. HOGARTH.

J. R. Harrison