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was ignorant of the aforesaid correspondence, interviews, and Statement
of defence. 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
in the paragraphs numbered consecutively from 3 to
the same are true in substance and fact.
memorandum of agreement mentioned in the 1st
null and void, and that it may be rectified.
better relief as the nature of the case requires.
Action by Ship-owner against Charterer for not Loading.
1. The plaintiffs are the owners of the “Pansy," and the Statement
defendant is a merchant carrying on business in London. of claim 2. On or about the 23rd of March, 1877, the plaintiffs and against defendant agreed by charter-party that the plaintiffs' steamship charterer for not loading, and de
(a) “A charter-party is a contract whereby the ship-owner or the shipmurrage. master 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” (Addi. Definition son on Contracts, 7th ed., 718). The ship-owner by the charter-party of charter. expressly grants the vessel to be used by the charterer, but this will not party.
generally (though sometimes it will be otherwise, see Trinity House v. 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 ser. vices 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 Correlative board without notice packages of dangerous or corrosive matter, the rights and nature of which the ship-owner or his agents could not
be reasonably exduties of pected to know. (Brass v. Maitland, 6 E. & B. 470 ; L. J. 26 Q. B. 49.) charterer The duty of the ship-owner is to fulfil all the terms of the charter-party and ship- 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 What con
warranty that she really is there (Behn v. Burness, 3 B. & S. 751 ; L. J. stitutes a 32 Q. B. 204); so "now at sea, having sailed three weeks ago," is a warranty condition precedent. (Olive v. Booker, 1 Exch. 416.) Where the ship is or condi. 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. cedent. Duthie, 8 C. B. N. S. 45, 72 ; L. J. 30 C. P. 65; Tully v. Honling, 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. Daridson, 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
of claim speed proceed to Parazualos (after delivery of the then outward
for not expenses and any profit earned during the time covered by the charter. loading and (See also Stanton v. Richardson, 45 L. J. (H. L.) 78.)
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, Delay ocsuch as the crowded state of the docks (though here it may be other-casioned by wise if there is a custom of the port that ships of the kind should not be unforeseen considered as arrived until they get a discharging berth within the dock events. (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.)
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 rata, if the shipper accepts part of Pro rata 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
cargo for owners' benefit), and there load from the factors of of claim against the defendant a full and complete cargo of iron ore, and being charterer
so loaded should proceed forthwith to Newport (Alexandra for not loailing and dock), and there deliver the same on payment of freight at demurrage. the rate of 128. 6d. per ton of 20 cwt. delivered, and that the
cargo should be loaded at the rate of 200 tons per working day, and discharged at the rate of 250 tons per working day from the time of being ready to load and unload, and that demurrage over and above the said lying time should be paid for four days at £20 per day, payable day by day.
3. The said steamship“ Pansy” duly proceeded to Parazualos aforesaid, and the plaintiffs did all things necessary on their part and all times elapsed to entitle the plaintiffs to have the said charter-party performed by the defendant on his part and the agreed cargo loaded on board the said steamer by the defendant, yet the defendant did not load the agreed cargo or any cargo on board the said steamer, and kept and detained the said vessel as hereinafter mentioned, whereby the plaintiff lost the freight which he would have earned under the said charterparty and the benefit he would have derived from a performance by the defendant of the same, and was deprived of the use of the said vessel, and was put to great expense in and about endeavouring to obtain other freight and otherwise in respect of the
said vessel and her detention hereinafter mentioned. Statement
4. The plaintiffs also say that the defendant kept the said of grounds of claim of vessel on demurrage within the meaning of the said charter-party demurrage. for four days over and above the said period so agreed for loading
the said vessel and thereby became liable to pay to the plaintiff £80 for demurrage as aforesaid, but has not paid the same.
5. The plaintiffs further say that the defendant detained the said vessel eleven days beyond the periods so agreed upon for loading and demurrage as aforesaid, whereby the plaintiffs were deprived of the use of the said steamer during that time, and
freight, as on the old contract, without reference to the contract with the new ship. (Shipton v. Thornton, 9 Ad. & E. 314.) On the subject of pro ratâ freight generally, see the recent cases of Hooper v. Burness, 45 L. J. 377 ; Metcalfe v. The Britannia Iron Works, 45 L. J. 837; 46 L.J. 443. The ship-owner has a lien upon the goods for his freight; but he has no lien on goods shipped for unliquidated damages by reason of the charterer failing to load a full cargo. (Phillips v. Rodie, 15 East, 547 ; Gray v. Carr, L. R. 6 Q. B. 522.)
Freight, lien for.
incurred great expense in keeping the same and maintaining Statement
of claim for the crew thereof.
not loading 5. Particulars of the plaintiffs' claim have been furnished to and de
murrage. the defendant and the plaintiffs have requested payment thereof, but the defendant has refused and still refuses to pay the same or any part thereof.
The plaintiffs claim :-
Statement of Defence. 1. The defendant denies the allegations contained in the Statement
of defence. 3rd paragraph of the statement of claim, and says that he was Refusal of at all reasonable times in that behalf, ready and willing to load master to
accept a cargo according to the said charter-party, but the master of
cargo. the said ship did not nor would receive the same on board thereof. If any expense was incurred by the said master in obtaining another charter-party (which the defendant denies), it was so incurred in consequence of his own acts and defaults and not otherwise.
2. The defendant denies the allegations contained in the 4th and 5th paragraphs of the statement of claim, and says that he did not keep or detain the plaintiffs' said vessel as therein alleged. If the said ship remained at the said port of loading (which the defendant denies), she was kept there by her said master for purposes of his own, and was not in any way detained by the defendant.
Action by Ship-owner against Shipper for not Loading.
(Another form.) 1. The plaintiffs are ship-owners and the owners of the Another
form of steamship “A.”
statement 2. The defendants are merchants and ship-brokers carrying not load on business in Street, in the City of London.
ing. 3. On the 9th of March, 1877, a charter-party was entered into between the plaintiffs of the one part and the defendants of the other part.
4. By the said charter-party it was, amongst other things not material to this action, agreed that the said steamship“A.” should with all convenient speed sail and proceed to a safe