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take any other cargo they could procure; the defendants guaranteeing that they should at least receive 9007. gross freight for each vessel. If the original contract had been still subsisting, and the defendants had only put on board each vessel 150 tons of petroleum instead of 300 tons, the contract would have been broken at that time. So the gross amount of freight on the cargoes loaded at Kilia falling short of the guaranteed sum, the contract was broken at the port of shipment. The ambiguity arises from the improper use of the word "freight.'"
Willes, J. said:-"The substituted agreement is a mere arrangement of the amount. In all other respects it stands upon the same footing as the original contract. The liability of the defendants for not loading a full cargo was complete at the same time that it would have been under the charter-party. And they are not the less liable because one of the vessels was lost on the voyage home. If the original contract had been fulfilled, peradventure the loss would not have taken place. In estimating the damages, therefore, for the defendants' breach of contract, the loss of the Botassis' is out of the question."
In the case of Yeames v. Lindsay, the defendants having chartered a vessel to proceed to Taganrog, and there load a cargo at 60s. per ton, wrote to the plaintiff's" Inclosed please find three copies of charter
1 Carr v. The Wallachian Petroleum Co., L.R. 1 C.P. 636; L.R. 2 C.P. 465. 23 L. J. (N. S.) 855.
per William & Mary,' from the Azof, and we shall feel obliged by your sending instructions to your firm at Taganrog to re-charter for us upon the best terms obtainable, and we hope you may be able to place her at advantage; but if unfortunately there should be any loss, your draft upon us for the difference will meet with due honour." At the time the vessel arrived at Taganrog the rate of freight was 40s. per ton, and, as the plaintiffs could not get more, they put their own cargo on board at that rate, drawing upon the defendants for the difference between that and 60s.; at which rate they would have to pay the owner in England when the vessel arrived. The vessel was lost, and the defendants refused to accept the plaintiffs' bill, on the ground, that inasmuch as the ship never arrived at her destination, the plaintiffs were not liable for the freight, and as they had chartered her to themselves and not to third persons, they had not paid away any money and therefore they had sustained no such loss as was contemplated in the letter. The Court, however, held that, "as the moment the cargo was put on board there was a difference in the insurable value, as it then became liable to a freight of 60s. instead of 40s., there was such a loss sustained as was in contemplation at the time of the contract."
The plaintiff's ship was chartered for a voyage from Glasgow to Porto Rico, and back to a port in the United Kingdom. By the charter-party freight for the voyage was to be at the rate of 41. 10s. per ton upon the homeward cargo; and "for
security and payment of all freight, dead freight, demurrage, and other charges, the owner was to have an absolute lien and charge on the said cargo or goods laden on board; bills of lading to be signed by the master as presented to him, and at any rate of freight, without prejudice to charterparty." After the ship had arrived at Porto Rico, and part of the homeward cargo had been put on board by L. & C., the charterer's agents there, for which the master had signed and given them a bill of lading at a freight of 40s. per ton, L. & C. received intelligence of the charterers having stopped payment, when they not only refused to put any further goods on board, but required the cargo which had been already shipped to be returned to them. The master having been told that by the Spanish law he could be compelled to discharge the cargo, made, under protest, a new contract with L. & C., by which the ship was chartered to them on a voyage to a port in the United Kingdom, at the freight of 30s. per ton. Further goods were thereupon shipped by L. & C., and the former bill of lading having been destroyed, a new bill of lading was signed by the master for the whole quantity on board, at the freight of 30s. per ton. L. & C. consigned the cargo to the defendants, as their agents for sale, and the defendants for that purpose received and became the holders of the bill of lading. The plaintiff having refused to deliver the cargo to the defendants on payment of such bill of lading freight :-Held, that that part of
the cargo which had been shipped before receipt of intelligence of the stoppage of the charterers, had been shipped under the terms of the charter-party, and that L. & C. had no right to require it to be unshipped, and the master had no power to vary the chartered freight as between the parties to the charter-party, and therefore the plaintiff had, as against the defendants, a lien on such part of the cargo for the freight at 47. 10s. per ton.
Held also, that the rest of the goods were shipped under a new contract, which the master was authorised to make, under the circumstances, and that plaintiffs therefore had no right of lien on these goods, except for freight at 30s. per ton.
Held, further, that the expression "dead freight" in the charter-party did not apply to a claim of damages in respect of the charterers having failed to load a full cargo, and that it therefore gave the plaintiffs no right of lien on the cargo for the difference between the rates of 41. 10s. and 30s. per ton.1
Where the "Orpheus" was on a voyage from Effect of two Liverpool to Viborg in Russian Finland, she sailed being entered from Liverpool with two charter-parties. One separate dated the 4th of August, by which she contracted with a merchant of Liverpool to carry a cargo of salt to Viborg; and another dated the 5th of August, by the terms of which she contracted with some merchants of Hull with all convenient speed to
1 Pearson v. Goschen, 33 L. J. C. P. 265.
2 L. R. 3 A. & E. 308.
proceed to Viborg with liberty to take an outward cargo for her owners' benefit, and there, at Viborg, to take a cargo of deals and battens with which she was to proceed to Grimsby. On the voyage she came into collision with the "Emilia," and at the time of the collision she had her cargo of salt on board, with which she proceeded to Viborg, and at that place she took on board the cargo of deals with which she proceeded to Grimsby, where she was arrested upon a warrant. It would appear that the value of the ship was insufficient to cover the damage which had been done, and that the freight for the cargo of deals belonged to the owners of the vessel. It was contended that the freight was not liable to indemnification for the damages to which the "Emilia" was entitled.
Sir R. Phillimore in delivering his considered judgment said:-"The next and last branch of the contention was, that inasmuch as this cargo was not on board the ship at the time of the collision, but was taken on board on a subsequent voyage, the freight though accruing to the same owner, cannot be arrested in this cause. This argument presented more difficulty to the mind of the Court, and has never, it was said, and I believe correctly, received a formal judicial decision.
"As I read the charter-party which relates to the deals, I am of opinion that freight was growing due on their account though they were not on