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wealth and position, without the knowledge of the defendant's parents, paid his addresses to the defendant.

Undue

6. In or about the year 1861, the defendant's parents for Statement the first time became aware that the plaintiff was intimate of defence. with and paying his addresses to the defendant, and they there- influence. upon forbade the defendant from further continuing any acquaintance with the plaintiff, or receiving his addresses, or having any intercourse or correspondence with him, and this was then communicated to the plaintiff.

7. Thereupon the plaintiff, by the influence he had over the defendant, induced the defendant to enter into a clandestine correspondence with him, to be kept up without the knowledge of the defendant's parents, and to enter into an engagement of marriage with him, which it was intended by both the plaintiff and the defendant should be concealed from the defendant's parents, and shortly after the plaintiff left L., and from thenceforward resided in London.

8. In consequence of such promise, from the year 1861 down to the 19th of July, 1875, when the defendant's father died, the plaintiff continuously and frequently wrote to and received letters from the defendant, and from time to time had interviews with her at various places other than L., and the engagement of marriage was continued between them. During the whole of this time the receipt and sending of such letters and the said interviews and the said engagement were, as the plaintiff well knew, concealed from the defendant's father and from the defendant's mother so long as she was alive; and the defendant's parents were, and each of them was, ignorant and unaware of such correspondence, interviews, and engagement.

9. For many years prior to the day when the defendant signed such memorandum of agreement as aforesaid, the plaintiff applied to the defendant from time to time, and received from her sums of money, and from the commencement of the year 1869 to the day that the defendant signed the said memorandum of agreement as aforesaid, the plaintiff, who had, as he well knew, great influence over the defendant, by using all such influence, constantly endeavoured to induce the defendant to execute a bond or contract to secure him an annuity or large sum of money out of the property or moneys she might receive under her parents' and especially under her father's will.

Statement

Undue influence.

10. The plaintiff knew that the defendant was very much of defence. afraid of her parents learning that, contrary to their wishes and orders, she had kept up correspondence with the plaintiff, and had entered into and continued an engagement to marry the plaintiff, and had had interviews with him from time to time, and for the purpose of inducing the defendant to execute such a bond or contract, he announced to the defendant that he intended to take up his residence at L., and to inform her parents of such interviews, correspondence, and engagement.

11. At and up to the signing by the defendant of the memorandum of agreement mentioned in the 1st paragraph of this statement, the defendant had for the whole of her life resided with and been under the care and direction of her parents, and was wholly without experience in business, and was, with reference to her engagement with the plaintiff and the matter comprised in such memorandum of agreement, wholly induced by the plaintiff to sign and enter into the said memorandum of agreement by and under the influence of the plaintiff, while she was engaged to be married to him under the circumstances before set forth, and by and under the fear, as the plaintiff well knew, that the plaintiff would, if she refused to sign and enter into the said memorandum of agreement, take up his residence at L., and inform her parents of such interviews, correspondence, and engagement, and thereupon she did sign the said memorandum of agreement in the 1st paragraph of this statement mentioned, by the means aforesaid, and under the circumstances aforesaid, and not otherwise. And the defendant further says, that if the terms of the said memorandum of agreement are such as are set forth in the statement of claim, the same are, and always were, as to the promise of the defendant to pay the said moneys, properties, and annuity, exorbitant, unreasonable, inequitable, and unfair to the defendant.

12. The defendant admits that under the will of her father, but denies that under the will of her mother, she became entitled to certain properties and moneys, and says that before, after, and at the execution of the last will and testament of the defendant's father, under which said will the defendant has received such property and money, and to the date of the death of the defendant's father, the father of the defendant

of defence.

was ignorant of the aforesaid correspondence, interviews, and Statement engagement of marriage between the plaintiff and the defen- Undue dant, signed by the defendant as aforesaid, and that there influence. was any agreement whatever between the plaintiff and the defendant; and the defendant says that the defendant's father made his said last will and testament in the belief that there was no agreement whatever between the plaintiff and the defendant.

And by way of set-off and counter-claim, the defendant claims as follows:

13. The defendant repeats the matters hereinbefore alleged in the paragraphs numbered consecutively from 3 to 12, both inclusive, of this statement, and says that the same are true in substance and fact.

14. The defendant claims that if the terms of the said

memorandum of agreement mentioned in the 1st
paragraph of this statement are such as are set out
in the 1st and 2nd paragraphs of the statement of
claim, the said memorandum of agreement may, so
far as the same relates to the promise of the defendant
to pay the plaintiff one-third of whatever properties
or moneys the defendant might receive under the
will of her parents, jointly and separately, and so far
as the same relates to the promise of the defendant to
pay the plaintiff the said annuity, be declared to be
null and void, and that it may be rectified.

15. The defendant further claims such other further and
better relief as the nature of the case requires.

Broker.

See Stockbroker.

Carrier.

See Common Carrier.

Statement of claim against charterer for not loading, and demurrage.

Definition of charter party.

Correlative rights and

duties of charterer and ship

owner.

What con

stitutes a warranty or condi

tion precedent.

Charter-party (a).

Action by Ship-owner against Charterer for not Loading.

1. The plaintiffs are the owners of the "Pansy," and the defendant is a merchant carrying on business in London.

2. On or about the 23rd of March, 1877, the plaintiffs and defendant agreed by charter-party that the plaintiffs' steamship

(a) "A charter-party is a contract whereby the ship-owner or the shipmaster covenants or agrees for the use of the ship by the charterer for some specified period of time, or for a particular voyage or adventure" (Addison on Contracts, 7th ed., 718). The ship-owner by the charter-party expressly grants the vessel to be used by the charterer, but this will not generally (though sometimes it will be otherwise, see Trinity Housev. Clark, 4 M. & S. 295; Hutton v. Bragg, 7 Taunt. 14) be regarded as a devise of the ship, so as to clothe the charterer with the possession of the vessel, but simply as a contract for the use of the ship, together with the services of the master and crew, for the purpose of carrying merchandise. The duty of the charterer is to load his cargo on board within the agreed time, and there is also an implied contract on his part not to put on board without notice packages of dangerous or corrosive matter, the nature of which the ship-owner or his agents could not be reasonably expected to know. (Brass v. Maitland, 6 E. & B. 470 ; L. J. 26 Q. B. 49.) The duty of the ship-owner is to fulfil all the terms of the charter-party and safely convey the goods to their destination, the loss arising from certain perils being excepted, and his right is either then or before (if, but only if, it has been so expressly agreed) to receive the freight due to him. If the charterer fails to load a cargo, or loads an insufficient cargo so that the ship-owner cannot claim the full amount of freight to which he is entitled by the terms of the charter-party he is liable for damages in an action by the ship-owner. In an action for not loading, the ship-owner must aver in his claim, and prove at the trial, compliance with all warranties and conditions on his part. The description of a ship may be a warranty. Thus, if she be described as of class A 1 and is not so, this would be an answer to an action for not loading (Hurst v. Usborne, 18 C. B. 144; L. J. 25 C. P. 209); so a description of a ship as "now in a particular port" amounts to a warranty that she really is there (Behn v. Burness, 3 B. & S. 751 ; L. J. 32 Q. B. 204); so "now at sea, having sailed three weeks ago," is a condition precedent. (Ollive v. Booker, 1 Exch. 416.) Where the ship is chartered for a given time, the stipulation as to the time when the ship shall be ready to sail or to load is a condition precedent (Seegar v. Duthie, 8 C. B. N. S. 45, 72; L. J. 30 C. P. 65; Tully v. Howling, 45 L. J. 756; and delay, even though caused by the excepted perils, when so great as to put an end in a commercial sense to the speculation, exonerates the charterer. (Jackson v. Union Marine Insurance Co., L. R. 8 C. P. 572; L. R. 10 C. P. 125.) There is an implied warranty on the part of the ship-owner that his ship shall be seaworthy at the commencement of the voyage, and where she was not, and in consequence the charterer's cargo was lost, it was held that he could recover its value from the ship-owner (Cohen v. Davidson, 46 L. J. 305); so a statement of tonnage is not a warranty or condition precedent. (Barker v. Windle, 6 E. & B. 675; L. J. 25 Q. B. 349.) The measure of damages for not loading any cargo is the amount of freight which would have been carried, deducting

the "Pansy," then on passage out should, with all convenient Statement speed proceed to Parazualos (after delivery of the then outward

expenses and any profit earned during the time covered by the charter. (See also Stanton v. Richardson, 45 L. J. (H. L.) 78.)

of claim against charterer for not

loading and demurrage.

Demurrage.]—The charterer usually covenants to load and unload the vessel within a certain time, or if he fails to do so, to pay so much a day during the delay. This delay as well as the payment is called demurrage. The days which by the charter-party are allowed to the Demurrage, charterer to load or unload are called lay days; and these days are, in when the absence of contrary usage, to be taken as consecutive or running action for days. (Brown v. Johnson, 10 M. & W. 331.) The lay days allowed are lies. to be reckoned from the time of the ship's arrival at the usual place of discharge, and not from her arrival at the entrance of the port, although for the purposes of navigation she may have discharged a portion of her cargo (Brereton v. Chapman, 7 Bing. 559; Kell v. Anderson, 10 M. & W. 498); and where by a charter-party a specified sum is to be paid for each day over and above the lying days, that sum is payable in respect of a fraction of a day during which the ship is detained. (Commercial Steamship Co. v. Boulton, 44 L. J. Q. B. 219.) When the charter-party is silent as to the time of loading and unloading, the contract implied by law is that each party will use reasonable diligence in performing that part of the loading or delivery which by the custom of the port falls upon him. The charterer cannot escape from liability on his express covenant to pay demurrage by showing that the delay was occasioned by some unforeseen event not provided for by the contract, such as the crowded state of the docks (though here it may be otherwise if there is a custom of the port that ships of the kind should not be considered as arrived until they get a discharging berth within the dock (Steamship Co., Norden, v. Dempsey, 45 L. J. 764) ): so the delay of Customhouse officers, or the inclemency of the weather (Blight v. Page, 3 B. & P. 295), or the neglect of the holders of the bill of lading to present it and claim the goods. (Erichsen v. Barkworth, 3 H. & N. 894; L. J. 28 Ex. 95. See also Tiis v. Byers, 45 L. J. 511.) But if after the loading has been completed, the vessel is detained by a sudden frost, or by foul weather and contrary winds, the charterer is not liable. (Jamieson v. Laurie, 6 Bro. P. C. 474.)

Delay occasioned by unforeseen

events.

Freight.]-Either the master or the ship-owner may sue for freight, but in the absence of agreement, no freight is due until the goods be carried to their destination, and then freight is to be calculated and paid on that amount only which is put on board, carried throughout the whole voyage, and delivered at the end to the merchant. (Gibson v. Sturge, 10 Exch. 639; L. J. 24 Ex. 121.) Where the ship-owner carries the cargo to the port of destination, but from the nature of the cargo is unable to land it there, the freight becomes payable; and Freight if the prudent course for the master to adopt is to bring the cargo when payhome again, he is entitled to be paid back freight as well as the able. expenses incurred in endeavouring to land the cargo. (Gaudet v. Brown, L. R. 5 P. C. 134.) Though freight is, as stated, only payable on the safe arrival of the cargo at the port of destination, still payments made in advance on account of freight cannot be recovered back although the ship is lost. (Byrne v. Schiller, L. R. 6 Ex. 20, 319). The ship-owner may recover freight pro ratâ, if the shipper accepts part of Pro ratá the goods, though carried under an entire contract for freight (Mitchell freight. v. Darthey, 2 N. C. 555); or accepts the goods before the completion of the voyage. (Vleirboom v. Chapman, 13 M. & W. 238.) If the master is disabled from carrying the goods further he may trans-ship them, and upon safe delivery at their destination, he is entitled to the whole

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