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benefit, the ship to be despatched in fair sailing trim," to the Cape of Good Hope and Kurrachee. The agreed freight was 3,1507. payable on delivery of the cargo, the master to sign bills of lading at current rate, if required, and to have an absolute lien on the cargo for the chartered freight. It was further stipulated that the quantity of iron taken on board should not exceed the register tonnage of the ship, any package over three tons weight to be taken on board and discharged at the expense and risk of the charterers. Her registered tonnage being 1,022 tons, the charterers shipped 1,000 tons of ironware in cases, and iron rails, destined for Kurrachee, and about 300 tons of other goods for Cape Town, and would have loaded a further quantity, whereupon the owner called a survey by Lloyd's surveyors, who reported that the ship was not overloaded, and that a little more might be taken on board at the discretion of the owner. No further goods were shipped. The rails were stowed fore and aft and athwartships, leaving at the wings a space which was filled up by the cases, intended to act as dunnage, and keep the rails from the sides of the ship. The ship sailed from London on 15th November 1859, and during the voyage encountered gales and heavy seas, which, on 1st December, washed away the after hatch, and much water went down into the hold, the ship also sprung a leak, and sometimes made so much as eight inches water an hour. On 24th February, during a strong gale, she rolled so greatly that they had to put her before the wind

to save the masts. On 3rd March when working up to the anchorage in Table Bay, she missed stays off Mouille Point, and went upon the rocks. After discharging about 100 tons of cargo to lighten her, the ship was got afloat and brought to Cape Town, where the goods destined for that port were delivered, but a quantity of them were all mixed up together, forming an undistinguishable mass. It was alleged that during the hasty unloading to get the ship off the ground, the goods were partly broken, damaged, or destroyed, and part unavoidably lost overboard. The plaintiffs and other consignees refused to receive the damaged or unidentified goods offered to them, and in order to avoid a multiplicity of actions, the latter assigned their interests to the plaintiffs, who sued the master for payment of the value of the goods in question. To save warehouse rent and further loss the goods were sold by auction.

Bell, J. in delivering the judgment of the Court, said: "That they were of opinion upon the facts that the ship had been overloaded and that the damage did not take place at Mouille Point, but previously in the course of the voyage, and that the proximate cause of the destructive action of one part of the cargo upon another, destroying some of the goods and rendering others undistinguishable, was the badness of the stowage. The iron appeared to have been properly stowed, but the space between it and the sides of the ship, instead of being filled up with proper dunnage which could resist the weight

of the iron when it should work down, was improperly filled with cases containing ironware. It ought to have been anticipated that where such an excessive quantity of dead weight was shipped, there would be an excessive degree of rolling and consequent chance of displacement of cargo, and therefore the dunnage should have been of a nature unquestionably sufficient for the purpose for which it was used, whereas the evidence showed that it was wholly insufficient. The Court cited the judgment of Lee, C. J., in Parish v. Crawford,' and were of opinion that it did not conflict with James v. Jones,2 and Mackenzie v. Rowe, and held, that looking to all the facts of the case, the contract of affreightment in the present instance did not divest the shipowner of his ordinary rights and liabilities, and that there was no ground established for throwing the consignees upon the charterers, instead of upon the owners, for their relief; that the action was rightly brought against the master, as representing either the owner or the charterer of the ship, one of whom must be liable for the loss sustained, and in the opinion of the Court the shipowner was the person primarily liable to the consignees. The case of Blakie v. Stembridge, was relied upon by defendants as showing that the employment by the charterer of a stevedore to stow the cargo absolved the shipowner from liability for bad stowage; but

12 Str. 1251.


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in that case the goods were never on board the ship, being lost out of the slings through the stevedore's negligence while being hoisted on board; and that case only showed that the stevedore was neither expressly nor by implication the servant of the owner, so as to make the owner liable for his default. The defendant not being excused from delivering the articles sued for, because the facts showed that his inability to deliver them in the like condition in which they were shipped did not, as regards either the damaged or unidentified goods, arise from any peril excepted in the bills of lading, the consignees were entitled to refuse them in the condition in which they were offered, and the defendant was responsible for the value of the goods, under his common liability as a carrier, and under the express terms of his contract with the shippers."1

In the absence of any express agreement the charterer is not bound to provide ballast, it being part of the shipowner's duty to do so in order to make the vessel trim for her voyage. Thus where a charter-party stipulated that 100 tons of rice or sugar were to be shipped previous to any other part of the loading to ballast the vessel, it was held that the shipowner was obliged to furnish what other ballast was necessary."

And where a charterer agreed to load at Archangel a full and complete cargo of oats or other lawful merchandise, the cargo shipped consisted of flax

1 Denyssen v. Macfie, 3 L. T. N. S. 25.

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and other light articles, i. e., of as much as the ship could safely carry of such light articles, which rendered the shipment of 120 tons of ballast necessary. Held, that when the charterer had supplied a full and complete cargo it was the shipowner's duty to procure the ballast necessary for that cargo.'

The charterer, however, may contract to ship ballast at the expense of the vessel, and if so will, in the absence of express stipulation, be liable to pay for the detention of the ship by delay in such shipment."

If the shipowner has contracted to carry a cargo which necessitates the use of ballast, he may engage heavy cargo, for which he is paid freight, instead of ballast, if the charterer is not prejudiced by such cargo occupying more space than would be taken by the ballast, and leaves to the charterer the full space of the vessel for his cargo, or by its being injurious to the other cargo contracted for.3

But where the option is given the charterer of shipping two or more kinds of cargo and he exercises his election by giving the ship a full and complete cargo of one or more kinds of the goods contracted for which are light, the shipowner cannot compel him to load other goods of those specified in the charter-party, which are of a heavier nature in place of the ballast so as to earn further freight."

1 Southampton S. Coll. Co. v. Clarke, L. R. 6 Ex. 53; 40 L. J. Ex. 8.

2 Sanguinetti v. Pacific S. N. Co., L.R. 2 Q.B.D. 238; 46 L.J.Q.B. 105. 3 Towse v. Henderson, 19 L. J. Ex. 163.

Moorsom v. Page, 4 Camp. 103.

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