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C. II. C. requested the plaintiff to deliver the cargo to the defendants as his agents, which the plaintiff agreed to do on having payment of the freight guaranteed by the defendants, which they did less any claims for short delivery. The defendants were bona fide holders of the bills of lading which had been signed by the plaintiff in respect of the cargo. On unloading there was found to be a deficiency in quantity between the goods mentioned in the bills of lading, and those actually shipped and delivered. Held, that notwithstanding this the plaintiff was entitled to the whole of the freight specified in the charter-party, and was justified in keeping the cargo until the freight was paid.1
And where a ship was chartered for a lump sum, and she arrived at her destination with the whole of her cargo, with the exception of a deck load which had been lost during the voyage by one of the excepted perils, the shipowner was held entitled to the whole of the lump freight, without deducting the portion of freight payable in respect of the deck freight which had been lost.2
So, where the charter-party provided a "lump sum freight of 5,000l. to be paid, after entire discharge and right delivery of the cargo, in cash two months after the date of the ship's report inwards at the Custom house," and a portion of the cargo was destroyed by fire on the voyage. It was held, that the loss having arisen from one of the
1 Dods v. Stewart, 8 Ben. L. R. 340.
2 Robinson v. Knights, L. R. 8 C. P. 465; 42 L. J. C. P. 213.
excepted perils, the plaintiff was entitled to recover the lump sum agreed upon.1
In Blanchet v. Powell's Llantivit Collieries Co., the master of a vessel sued for lump freight, made payable by a bill of lading, signed by the master in respect of goods which were described in the bill of lading as weighing 256,782 kilos. The defence was that a smaller weight only was carried and delivered. To which it was replied that the whole of the goods described in the bill of lading had been delivered, and that the weight stated was a mistake. It was contended on demurrer, but without success, that the Bills of Lading Act precluded the master from alleging that the weight stated was incorrecct. Bramwell, B., said:-"In an action against him for nondelivery he might be estopped, but not in such an action as this." And Cleasby, B., went further saying:"If the bill had acknowledged the receipt of certain specific things-a certain number of horses, for instance-it might be that the plaintiff could not be heard to say that a different number was shipped in fact. But that cannot be said of a mere statement of weight, which may, and often does, vary during the transit; and I do not see any estoppel, therefore, to prevent the plaintiff from saying that the measurement was wrong, it not being suggested that a wrong weight was inserted fraudulently in order to enhance the lump freight recoverable."
The Merchant Shipping Co. v. Armitage, L. R. 9 Q. B. 99; 43 L. J. Q. B. 25; Reynolds v. Jex, 13 W. R. 968.
2 L. R. 9 Ex. 74; 43 L. J. Ex. 50.
It is settled by the authorities that by the law of Advance England a payment in advance of freight cannot be recovered back in the event of the goods being lost.1
Where a charter-party made between the master of the ship and the freighter, for a voyage from Liverpool to Maranham, and thence back to L. provided that the freighter should pay for the freight from L. to M. 1207., and from M. to L. at the rate of 23 d. per lb. for cotton, which should be delivered at L.; such freight to be paid as follows:-1207. for freight of the outward cargo to M., and as much cash as might be found necessary for the vessel's disbursements in M., to be advanced by the freighter, his agents or assigns, to the master, when required, free from interest and commission, at the current exchange of the place, and the residue of such freight to be paid on delivery of the cargo in L. The ship arrived at M., where the 1207. outward freight, and also 1927. for the necessary disbursements of the ship, were paid or advanced by the freighter to the master; and the ship received her homeward cargo and sailed for L., but was lost by capture-Held that the freighter was not entitled to recover back the 1921.2
The above case turned upon the particular words of the instrument which was framed so as to make the freighter lose the money advanced by him, unless
1 Anonymous case 2 Shower 283, cited in Saunders v. Drew, 3 B. & Ad. 450; The John, 3 W. Rob. 170; Byrne v. Schiller, L. R. 6 Ex. 319.
2 De Silvale v. Kendall, 4 M. & S. 37.
the owner reaped the benefit by the ship's coming home safe. It is undoubtedly competent for the shipowner to make stipulations similar to the above. But if he does so it is his duty to take care that they are inserted in clear and explicit words in the charter-party, that the money advanced shall be an advance in part payment of the freight.
The charterer, on signing the charter-party, incurs a liability for the chartered freight which becomes a debt in case of safe delivery of cargo, and the Captain for the shipowners, frequently obtains advances as well on account of this liability (whether stipulated for in the charter-party or not,) as on the personal security of his owners: in either case they are loans; in the one case, they are advances of freight, in the other case, they are debts from the borrower. The distinction is at times material, because if they are advances of freight, the lender has an insurable interest in an advance which is to be lost if freight is not carned, but he has no such interest in an absolute debt. If advances are not stipulated for in the charter-party, but are obtained by the application of the Captain to the charterer, and both he and the charterer state that they were advances of freight, and the receipts for the advances are so expressed as that, if effect is given to those parts of them relating to insurance, they are decisive to show that the sums obtained were advances of freight, to be repaid by deductions from freight, if earned; and if not carned, then to be lost by the charterer, unless he should have used the stipulated premium in insuring.'
1 The Karnak. 21 L. T. N. S. 159.
In Saunders v. Drew,' the charter-party was for a voyage from the port of London to Calcutta, and back, on the usual terms; it was further agreed that the freighter, if he thought proper, might hire the vessel for an intermediate voyage, within certain limits, for not less than six months; that, in that event, the master should refit the vessel for such voyage, and the complement of men should be kept up, and all necessaries provided: in consideration of which, the freighter agreed to pay the owner for such Voyage at the rate of 17. a ton per month on the ship's tonnage, and to pay four months of such hire in advance, and at the end of six months two further months' pay, and so in every succeeding two months; and the balance due at the termination of such hiring, in cash or approved bills. It was further stipulated, that if the vessel should be lost or captured, the freight by time should be payable up to the period when she should be so lost or captured, or last heard of:-Held, that under the former clauses of this agreement, the freighter could not claim a return of any part of the four months' advance, on the vessel being lost within that period; but that the advance, being in respect of freight, was absolute. And that the stipulation on this head was not qualified by the subsequent clause.
Where it was mutually agreed by a charter-party between shipowner and charterer, that the ship
13 B. & Ad. 445,