On the other hand, where he does agree to supply a full cargo, his liability is not limited to the tonnage expressed in the charter-party; and the burthen being described as 261 tons or thereabouts, whereas the vessel would really have held 400 tons, it was held that the merchant must pay for the entire amount she could have stowed. If there was a fraudulent representation it would be different.'

Where there is an agreement for a specific freight, no evidence can be given of a deficient performance of contract not amounting to breach of a condition precedent, with a view to reduce the damages; though it would be otherwise if the action were on a quantum meruit. For instance, evidence cannot be offered of a deviation which caused delay and expense, nor of injury caused to the contents of some of the packages by the negligence of the master, in not ventilating them sufficiently.3 And where the freighter engages a ship for a certain time, the owner to keep her in repair, he cannot claim to deduct from the freight any time during which she is under repairs, and, therefore, lying idle. So, where there is an agreement to pay pilotage and port charges, for an entire voyage, and only part of the cargo is delivered, if this is received, the whole of the charges must be paid, and there can be no apportionment, nor can the value of missing goods be

Hunter v. Fry, 2 B. & A. 421; Thomas v. Clarke, 2 Stark. 452; Barker v. Windle, 6 E. & B. 675.

2 Bornmann v. Tooke, 1 Camp. 377.

3 Davidson v. Gwynne, 12 East 381.

✦ Havelock v. Geddes, 10 East 555; Ripley v. Scaife, 5 B. & C. 167. Christy v. Row, 1 Taunt. 300.

1

deducted from the freight payable in respect of goods delivered.1

In actions for not supplying any cargo, or an incomplete one, the measure of damage is the difference between what the plaintiff would have earned if the contract had been fulfilled, and that which he has earned, notwithstanding the breach.2

3

In Stewart v. Rogerson, it was held that on a refusal to accept cargo the measure of damages was the full freight payable; and that this would not be affected even by a subsequent inability to deliver the

cargo.

The amount which he would have earned is open to the same questions, and decided upon the same principles, as the amount of freight payable. Upon this point, Maule, J. says, in Cockburn v. Alexander," It may be that in cases of this sort, different amounts might, under different states of circumstances, be the proper measure of damages. If you could show that there were goods which the charterer might have obtained, then the proper measure of damages would be the non-shipment of that cargo. But if there were none, it may be that in ascertaining the damage an average is to be taken on all kinds of goods. It is in that way I think that Lord Tenterden arrived at the opinion he expressed in Thomas v. Clarke, viz, that where there is no cargo at all to be had, the average is to be taken of

1 Meyer v. Dresser, 33 L. J. C. P. 289.

2 Hunter v. Fry, 2 B. & A. 421; Smith v. McGuire, 3 H. & N. 554 McLean v. Fleming, L.R. 2 H.L. Sc. 128; Morris v. Levison, L.R. 1 C.P.D.155. 3 L. R. 6 C. P. 424,

* 6 C. B. 814.

52 Stark. 450.

all possible kinds of cargo; that is, that you are to assume, contrary to the fact, that there are goods of each of the kinds enumerated, because the obtaining goods of any one kind, where none are in truth obtained, cannot a priori be considered as more probable than the obtaining of any of the others."

But whatever may be the default made by the charterers, the captain is still bound to do his best to obtain freight, and where after breach by the defendant he has refused an offer, the measure of damages is what the charterer ought to have paid, minus what the owner might have got. But he is not bound to accept any offer before the final breach by the defendant.1

When there is a stipulation that in case the charterer cannot find a cargo, he shall pay a certain sum, and in such case, the question arises as to his right to be allowed freight subsequently earned by the ship. It would appear from the cases, that where the right of the shipowner to the sum specified has once absolutely vested, he may carn as much as he can, and retain it, over and above the payment from the charterer.

A ship was freighted for a voyage to Petersburg and back at so much per ton measurement; she was to take a single cargo of lead out, and to bring home a return cargo. If from political circumstances she should remain forty days at Petersburg without the outward cargo being unloaded, and consequently

1 Harries v. Edmonds, 1 C. & K. 686.

without the return cargo being loaded, the Captain was to return to England, and be paid a gross sum, which was less than the money payable per ton. The cargo could not be unloaded, and the Captain returned as agreed, bringing back the lead, but on his way home he obtained further freight, and earned money. It was held that he was entitled to retain it.1

Where the defendants chartered a ship to New Zealand, and it was agreed that they were to load her there, or by their agent to give notice that they abandoned the adventure, in which case they were to pay 5001; on the ship's arrival there was no agent of theirs, either to supply a cargo, or to abandon the adventure. The Captain waited the prescribed time, and then went in search of freight, and ultimately obtained a cargo far more remunerative than that which the defendants were bound to supply. He claimed to retain the freight and to recover the 500l. also. It was held, however,-1st. That if the defendants had given due notice of abandonment, their obligation to pay the 500l. would have become absolute, and that while the plaintiff could have recovered no more, whatever his loss had been, they could have claimed no reduction on account of his gains. 2ndly-That as no notice of abandonment had been given, their right to close the transaction by payment of 5007. had never attached, nor on the other hand the right of the plaintiff to demand this sum. Therefore the contract remained

1 Bell v. Puller, 2 Taunt. 285.

as if there had never been such a stipulation. If the plaintiff had lost more than 5007. he might have recovered more; but as he had in fact lost nothing, he was only entitled to nominal damages for the breach of contract.1

If the charterer himself consents to the owner's making any profit of his ship, as, for instance, by taking an intermediate trip between the outward and homeward voyage, no claim to a reduction of freight can be set up on this account, even though the result of the indulgence may be that higher freight is payable by the defendant."

A charterer who has, through the shipowner's default in not being ready to load at the time agreed upon, been compelled not only to pay increased freight, but also to pay a higher price for the article to be shipped, is in the absence of evidence that he will be able to sell at a corresponding increased price at the port of delivery, or of other evidence that he will not be a loser, entitled to recover as damages the additional price paid as well as the difference in freight. And if such freight was in fact less than that contracted for, the damages would of course be merely nominal for breach of contract. In all cases, however, the damages must be the necessary and immediate consequence of the breach committed.

any

Staniforth v. Lyall, 7 Bing. 169.

2 Wiggins v. Johnston, 14 M. & W. 609.

4

3 Featherstone v. Wilkinson, 42 L. J. Ex. 78.

3

Horne v. Hough, L. R. 9 C. P. 137; Mayne on Damages, 268 et seq.