Where the defendant agreed to ship goods for a certain port, in a ship of which the plaintiff's were the sub-charterers, but failed to ship any portion of the goods, antl the plaintiffs were unable to obtain any freight: held in an action to recover the whole amount of the freight which would have been payable to the plaintiff's if the contract had been carried out, that the plaintiffs were entitled to recover as damages a sum equivalent to the entire freight agreed to be paid by the defendant for the goods in question, after deducting therefrom a proportionate part of the expenses of carriage which had been saved by reason of the service not having been rendered. And also, that the sum payable by the plaintiffs to the original charterers of the vessel for the intended voyage, ought not to be deducted from the sum payable by the defendant, as the damages payable by the defendant must depend upon his own contract with the plaintiffs, and not upon the terms of the bargain between the plaintiffs and the original charterers.1 Where the charter-party stipulated "that freight should be paid by as much cash as the master might require for ship's disbursements at port of loading, not exceeding 2007., to be advanced subject to 3 per cent. for interest and insurance, and remainder at port of discharge, on unloading and true delivery of the cargo, in cash." The vessel was loaded by the charterer and the sum of 2447. 15s. was paid to the master with the consent of the shipowner's 1 DeAngelis & Co. v. Mayappa Setty, I. L. R. 5 Cal. 578. agents at ports of loading for ship's disbursements. The vessel whilst on her voyage to London went ashore at Gibraltar and was partially submerged. Of her cargo, which consisted of flour, barley, currants and oil, some was jettisoned, some was washed out, and the rest had to be taken out of her, in a more or less damaged condition, a portion being sold at Gibraltar under the advice of surveyors, whilst a small portion was sent on to London by two other vessels at a cost of 66l. 13s., the original freight thereon being 1137. 10s. 7d. which was paid by the consignees. In an action by the charterers for damages for abandoning the voyage at Gibraltar without their consent, Lord Esher, M. R. in the course of his judgment, said :-"What are the damages to which the plaintiffs are entitled? The contract was to pay a lump sum for freight, and if any cargo arrived at the port of destination the shipowners would be entitled to the whole freight. But the freight is to be earned by the carriage of the goods, and by their carriage up to the end of the voyage agreed upon. If the shipowner did not perform the voyage at all, and he was not prevented from performing it by the perils of the sea, he is not entitled to any freight. Here the shipowners failed entirely to bring the ship to London, and consequently they are not entitled to any freight. But before starting upon the voyage, they borrowed some money from the charterers. This was either strictly a loan, or it was a part prepayment of freight, and in that point of view it was equally in substance a mere loan to the shipowners. The money was advanced to the master of the ship with the consent of the shipowner's agents at the port of loading, and there can, therefore, be no question as to the authority of the master to borrow the money. Indeed, if the master was left without money at Gibraltar, he had from that circumstance alone authority to borrow money for necessary disbursements about the ship. The shipowners have had the benefit of every shilling of the disbursements, and they are bound to repay to the plaintiffs the sum which they advanced. Beyond that the plaintiffs are entitled to any damages which they have suffered, and which are the natural result of the shipowner's default. In my opinion, if the goods had been on board the charterers would have been entitled to have them back, and also to any profits which they would have made if the goods had been brought to the proper market."1 1 Assicurazioni Generali v. S. S. Bessie Morris Co., L.R. (1892) 2 Q. B. 652. PART II. THE LEGAL EFFECT OF THE CLAUSES AND STIPU- Vessel. In the case of a charter-party, the vessel named Name of therein is so engaged to the charterer that he may refuse to load another instead, and the withdrawal of the ship would be a breach of contract for which an action will lie; a person who hires a vessel under a charter-party does so, not merely from a wish to have his goods taken to a particular place, but upon a careful choice of the vessel itself as the vessel best adapted for his purposes. Many considerations may have influer.ced him in the determination of his choice, and after these have determined him to make & contract for a particular vessel, he would be surprised to be told that all he wanted was to have his goods conveyed to their destination, and that it was immaterial to him in what manner, or by what conveyance, it was accomplished.1 The charter-party impliedly represents that the Ship must be ship contracted for is in existence as a ship. That in existence. is the foundation of the contract, a preliminary condition which must be satisfied if it is to be acted upon. 1 DeMattos v. Gibson, 28 L. J. Ch. 502. |