H. o f L.] We i e a n d Co. v. Gi b y i n a n d Co. [Ct. of Ap p.
owners’ expense, and to th a t extent the owners m ig ht have been benefited. I say m ight, because the owners m ight have sold the vessel in the meantime, or some other th in g m ig ht have occurred to render such survey unnecessary.
Assuming, however, th a t the expense of another drydocking was in th is way saved, and th a t to th a t extent the owners were benefited, I th in k th a t circumstance im m aterial, and i t does not w arrant a claim fo r contribution towards the dock dues im peratively incurred on the underwriters’
account in the discharge o f th e ir obligations. I th in k th a t such contribution can only be insisted upon in those cases where work is done to the vessel its e lf by two or more persons, each separately and simultaneously engaged undei different obligations in doing portions of it, dry- docking being necessary fo r each. I f the respon
dents’ claim fo r contribution were allowed, I see no reason why such a claim m ight not be made against an owner who, while his ship was in dry dock sold her, subject to immediate inspec
tio n and survey by his purchaser. A variety of other cases sim ilar in character m ight be sug
gested. I th in k th a t the owners, in causing the survey to be make in th is case, were taking what Lord Herschell termed “ an incidental advantage ” from the fa ct th a t a damage arising from a risk w ith in the policy had necessitated repairs a t the expense of the u nd erw rite r; and he puts by way of illu s tra tio n the case of a vessel in ordinary course requiring scraping and painting at intervals o f five years, and before the tim e fo r such opera
tio n has arrived meeting w ith a disaster by perils of the sea and docked fo r repairs fo r which under
w riters were responsible; and the shipowner ta king the opportunity o f scraping and painting his ship. In repudiating the notion th a t the entire tim e occupied in th a t operation should be borne by the shipowner, he adds, “ i f they were to be borne by him at a ll.” This observation of th a t noble and learned Lord makes i t clear to me th a t he did not contemplate his judgm ent covering such a case as this, where nothing was in fa ct done on the ship, and the survey did not in the smallest degree delay the completion or add one fa rth in g to the expense o f the repairs done fo r the underw riter. I th in k, therefore, th a t th is appeal should be allowed.
Lord Ro b e r t s o n concurred.
Jud gm e nt o f the C o u rt o f A pp ea l reversed, w ith costs here a n d below.
Solicitors fo r the appellants, B o tte re ll and Roche, fo r V aughan and Roche, C ardiff.
Solicitors fo r the respondents, W altons, Johnson, Bubb, and W hatton.
« M a i« « .
— + —
C O U R T OF APPEA L.
Tuesday, Nov. 14, 1899.
(Before Sm i t h, Co l l i n s, and W i l l i a m s, L .J J .)
We i e a n d Co. v. Gi b v i n a n d Co. (a ) APPE AL FEOM THE QUEEN’S BENCH D IV IS IO N . Advance fr e ig h t— D e s tru c tio n o f goods by f ir e on
board w h ile lo a d in g—C h a rte r-p a rty—C onstruc
tio n .
B y a c h a rte r-p a rty the charterers agreed to load on the ship a f u l l and complete cargo f o r carriage fr o m the T yne to S an Francisco. F re ig h t was to be p a id a t a c e rta in ra te per ton on the q u a n tity to be delivered to the consignees; and was to be p a id tw o -th ird s in cash three days a fte r s a ilin g , ship lost o r not lost, the balance on u n lo a d in g dnd r ig h t de live ry o f the cargo.
F ire was a p e r il m u tu a lly excepted. P a r t o f the cargo a fte r being loaded was destroyed by f ir e before the ship sailed. The charterers subse
qu en tly loaded more cargo o f sufficient am ount, ta k in g the am ount destroyed in to consideration, to f i l l up the c a rry in g space o f the vessel.
Three days a fte r s a ilin g the owners claim ed advance fr e ig h t on tw o -th ird s o f a f u l l cargo.
H eld, a ffirm in g the ju d g m e n t o f L o rd Russell, C.J., th a t the owners were n o t e n title d to advance fr e ig h t on the p a r t o f the cargo w h ich had been
destroyed by fire .
Th i s was an appeal from the judgm ent of Lord Russell, C.J. at the tria l o f the action w ithout a ju ry , which is reported in 79 L. T. Rep. 596; 8 Asp.
Mar. Law Cas. 470; (1899) 1 Q. B. 193.
The action was upon a charter-party, of which the m aterial parts are as fo llo w s:—
Lo n d o n , 3 1 st M a rc h 1898.— I t is th is d a y m u tu a lly agreed betw een Messrs. A . W e ir and Co., ow ners o f th e good ship o r vessel called th e Olivebank . . . and Messrs. G irv in , R oper, and Co., o f Lo n d o n , as agents fo r
G irv in an d E y re , o f San F ra n cisco , th a t th e said sh ip . . . s h a ll w ith a ll co n ve n ie n t speed . . . proceed to a lo a d in g b e rth . . . in th e r iv e r T y n e . . . and th e re , a lw a ys a flo a t, in th e usu a l and c u sto m a ry m anner lo a d . . . a f u l l and com plete cargo o f coke and la w fu l m erchandise (e x c lu d in g coals, su b je ct to s tip u la tio n s in m a rg in , scrap iro n , acids, gunpow d er, and explosives) cargo b e in g o f such a n a tu re as w i l l lo a d vessel to L lo y d ’s fre ebo ard (su bject to p ro visio n s o f side clause) w e ig h t cargo to be su p p lie d and shipped before the coke . . . w h ic h th e said c h a rte re rs b in d th e m selves to ship, and be in g so loaded s h a ll th e re w ith proceed to San F rancisco, C a lifo rn ia , and d e liv e r the same in th e usu a l and custo m ary m anner . . . th e ca p ta in to sign b ills o f la d in g fo r th e w e ig h t o f cargo ta ke n on b o ard as presented w ith o u t p re ju d ice to th e te n o r o f th is c h a rte r, p ro v id in g same equal th e a m o u n t o f ch a rtered fre ig h t. . . . C h artere rs lia b ilit y w ith respect to th is c h a rte r to cease, except fo r fr e ig h t as p ro v id e d , on th e vessel be in g loaded, th e ow ner o r ca p ta in to have an ab solute lie n on th e cargo fo r a ll u n p a id fr e ig h t and dem urrage . . . fr e ig h t fo r th e said cargo to be p a id on fin a l discha rge a t th e ra te o f 16s. pe r to n o f 22401b. on th e q u a n tity to be d e live re d to th e con
signees, except on cargo shipped in H u ll as h e re in a fte r p ro v id e d ; th e fr e ig h t to be due a n d p a id as fo llo w s :
htpeme € m x t of
(a) Beported by £. Manley Smith, Esq., Barriater-at-Law.
8
Ct. o f Ap p. ] We i e a n d Co. v. Gi e v i n a n d Co. [ Cx. o f Ap p.
tw o -th ird s in cash, less 6 pe r cent, fo r a ll charges, th re e days a fte r s a ilin g fro m T y n e , ship lo s t o r n o t lo s t, the balance on u n lo a d in g and r ig h t d e liv e ry o f th e cargo to be p a id in U n ite d S tates g o ld co in a t th e exchange o f fo u r do lla rs e ig h ty oentB. p e r pound s te rlin g ; th e a c t o f God, th e Queen’s enemies, r e s tra in t o f prin ces and ru le rs , fire . . . a lw ays m u tu a lly excepted. . . .
In the m argin of the charter-party was w ritten the follow ing n o te :
C h artere rs u n d e rta k e to ship and ow ners to load 1000 ton s o f dead w e ig h t cargo (o f w h ic h 500 ton s m ay be C annel coal in c h a rte re rs ’ o p tio n ) in m a nner re q u ire d b y m a ste r in H u ll on due n o tice b e in g given, vessel be in g w here cargo can be de live re d in usual m anner : fr e ig h t on cargo shipped a t H u ll b e in g p a id a t 14s. p e r t o n : in eve nt o f ch a rte re rs n o t lo a d in g vessel to h e r m a rks i t is agreed th a t fr e ig h t sh a ll be pa id on the basis o f 4350 to n s, w h ic h ow ners h e reby guarantee to be vessel’ s c a p a c ity o f cargo fo r th is voyage less p ro ra ta fre ig h t on a n y q u a n tity o f cargo s h o rt de live re d in San Francisco.
W hile the ship was being loaded a fire broke out on board and destroyed 1478 tons of cargo.
The charterers subsequently loaded 2590 tons more cargo, an amount which, w ith the 1478 tons previously shipped, would have exhausted the carrying space o f the vessel, h ut would not have loaded her down to her marks.
The ship then sailed fo r San Francisco.
Three days later the owners asked fo r payment of the advance fre ig h t due under the charter-party, and claimed to be entitled to tw o-thirds of the fre ig h t on 4350 tons.
The defendants contended th a t they were liable to pay only on4350 tons less the 1478tons destroyed by fire.
A t the tria l of the action Lord Russell, C.J.
decided in favour of the defendants.
The p la in tiffs appealed.
Carver, Q.C. and J. A . H a m ilto n fo r the plain
tiffs .—The p la in tiffs are entitled to the advance fre ig h t which they claim , because the defendants were bound to pay tw o-thirds o f the fre ig h t upon a ll goods shipped in advance three days after the sailing of the ship. I f the goods are loaded and the vessel is able to sail, the rig h t to the advance fre ig h t is complete, and i t is im m aterial what happens to the cargo i f i t is once shipped :
The O rie n ta l S team ship C o m p a n y L im ite d v. T y lo r a n d a n othe r, 69 L . T . R ep. 577 ; 7 A sp. M a r. L a w Cas. 377 ; (1893) 2 Q. B . 518.
Though fre ig h t is only payable upon safe delivery of the goods, yet “ advance fre ig h t ” is payable whether the goods are delivered or not. The placing o f the cargo on board is the condition which has to he performed in order to make
“ advance fre ig h t ” payable:
K irc h n e r v. Venus, 12 M o ore P . C. 3 6 1 ;
A llis o n v. B r is to l M a rin e In s u ra n c e C o m p a n y, 34 L . T . Rep. 8 0 9 ; 2 ABp. M a r. L a w Cas. 312 ;
1 A p p . Cas. 209.
That condition was performed as soon as th is cargo was placed on board, and what happened after
wards is im m aterial :
A itk e n , L ilb u r n , a n d Co. v . E m s th a u s e n a n d Co., 70 L . T . Rep. 8 2 2 ; 7 A sp. M a r. L a w Cas. 4 6 2 ; (1894) 1 Q. B . 773.
The fa ct th a t fire was one of the perils excepted does not affect the payment o f “ advance fre ig h t,”
fo r fire would not prevent the payment of advance fre ig h t fo r cargo which had in fact been loaded.
Joseph W alton, Q.C. and S c ru tto n fo r the defen
dants.—The charter-party says th a t tw o-thirds of the fre ig h t is to be paid three days a fte r the ship has sailed. T hat must refer to the fre ig h t men
tioned in the preceding clause, which is payable a t the rate o f 16s. per ton on the cargo to he delivered to the consignees. That m ust be the cargo estimated to be delivered. Therefore, if, before the ship sails, i t is known th a t some o f the cargo cannot be delivered, such cargo ought not to be taken into the calculation. _ I f a fu ll cargo were p u t on board so th a t the ship is loaded down to her marks, 4350 tons would be the basis on which the tw o-thirds fre ig h t would be calculated, unless p a rt of the cargo actually p ut on board is so dealt w ith by excepted perils th a t i t cannot be delivered. The m arginal clause provides an agreed measure of damages in case o f a breach of con
tra c t i f the ship is not loaded down to her marks.
A payment o f advance fre ig h t is a payment on acoount o f fre ig h t. How, then, can there be a payment on account of a sum which can never become payable P
S m ith , H i l l , a n d Co. v. P y m a n , B e ll, a n d Co., 64 L . T . Rep. 436 ; 7 A sp. M a r. L a w Cas. 7 ; (1891) 1 Q. B . 742.
Carver, Q.C. in reply.
Sm i t h, L .J .—The question in th is case arises on the construction of a charter-party, and the dispute is between insurers on advance fre ig h t payable under the charter-party and insurers on fre ig h t. The charterers were bound to load a fu ll and complete cargo, and they were also bound to load the vessel down to her marks. A clause in the contract provides th a t in case of a breach of th a t agreement a certain conventional figure is to be taken on which the charterer is to pay fre ig h t a t the agreed rate per ton. T hat conventional figure is 4350 tons. Now, the question is as to the amount of advance fre ig h t which the charterers are to pay. The charterers were bound by the charter-party to load in the river Tyne a fu ll and complete cargo of coke and law ful merchandise, excluding certain specified things, the cargo to be “ of such a nature as w ill load vessel to Llo yd ’s freeboard (subject to provisions of side clause),” and the ship being so loaded was to proceed therew ith to San Francisco and deliver the cargo there. F re igh t was agreed “ to be paid on fin a l discharge at the rate o f 16s. per ton of 22401b. on the quantity to be delivered to the consignees.” I f the charterers should not load a fu ll and complete cargo o f such a nature as to load the vessel to Lloyd’s freeboard, then the side clause, which has reference to the vessel’s capacity of cargo fo r the voyage, was to come in to effect.
Then the charter-party goes on to provide th a t fre ig h t “ is to be due and paid as fo llo w s: Two- th ird s in cash, less 6 per cent, fo r a ll charges, three days after sailing from Tyne, ship lost or not lost, and the balance on unloading and rig h t delivery of the cargo.” Now what happened was th is : Some of the cargo was shipped, b ut before the tim e arrived fo r payment of the advanced fre ig h t, 1478 tons o f i t were destroyed by fire.
The charter-party contains an exception of loss by fire, and i t seems to me th a t the case of A itk e n , L ilb u r n , and Co. v. E m sthausen a n d Co. (u b i sup.) is applicable. Since p a rt of the cargo after being p ut onboard was destroyed by an excepted p e ril, the charterers were not bound to ship fu rth e r
M ARITIME LAW CASES.
9 Ct. o r Ap p.] We ir a n d Co. v. Gi r v i n a n d Co. [Ct. op Ap p. cargo in place of what was destroyed, althoughthey were bound to load a fu ll and complete cargo, neither can they be called upon to pay fre ig h t in respect of what was destroyed. In respect of th a t destroyed p a rt of the cargo there was no fu rth e r duty on the charterers to load the ship nor was there any duty on the shipowners to carry. The p art of the ship th a t would have been taken up by the destroyed cargo was at the disposal of the shipowners to fill up as they m ight desire provided th a t the contemplated voyage was not thereby delayed. I t is clear th a t the 1478 tons of destroyed cargo were out of the question altogether before the tim e came fo r paying the advance fre ig h t. Then comes the question on what was advance fre ig h t to be paid ? Freight, as I have said, was to be paid at the rate of 16s.
per ton “ on the quantity to be delivered to the consignees.” I agree w ith the Lord Chief Justice that, in consequence of the destruction by fire of the 1478 tons, the conventional sum of 4350 tons is to be taken as the basis on which the calcula
tio n is to be made. As no fre ig h t is payable on the 1478 tons, th a t number of tons m ust be deducted from the 4350 tons, leaving a balance of 2872 tons. T hat is the fre ig h t earning capacity of the ship fo r the voyage in question, and the tw o-thirds fre ig h t, winch is payable in advance, must be calculated on th a t number of tons. That is the true meaning of the charter-party. I th in k th a t the judgm ent of the Lord Chief Justice was rig h t, and th a t th is appeal must consequently be dismissed.
Co l l i n s, L .J .—I am of the same opinion.
Though my m ind has fluctuated a good deal, I confess, in the course of the argument, I have come to the conclusion th a t the judgm ent of the Lord Chief Justice is rig h t. The d ifficu lty arises from the fa ct th a t the sum to be paid as advance fre ig h t is an aliquot p art of another sum, and the question is, what is th a t other sum P T hat depends on the terms of the charter-party. On the one side i t has been contended th a t the amount of fre ig h t payable under the charter- p arty is fin a lly ascertained as soon as the cargo is p u t on board, and that, therefore, the aliquot p art o f it, which is payable as advance fre ig h t, is determined wben the cargo is p u t on board irrespective of what cargo may be eventually delivered. On the other side it is said th a t the charter-party declares th a t fre ig h t is only pay
able on the quantity of cargo fin a lly delivered to the consignees. The mode of payment of the fre ig h t is, by the charter-party, to be “ tw o-thirds in cash, less 6 per cent, fo r a ll charges, three days a fte r sailing from Tyne, ship lost or not lost, and the balance on unloading and rig h t delivery of the said cargo.” On th a t p art o f the charter- party the criterion of what is to be paid fo r fre ig h t is so much per ton on the quantity delivered to the consignees. Then there is a side clause which comes into play in consequence of the fire which destroyed part of the cargo. The charterers did not p ut on board enough cargo to load the ship down to her marks, and therefore 4350 tons is to be taken as the fu ll capacity of the vessel fo r cargo, and fre ig h t is to be paid on th a t basis. I t was contended th a t fre ig h t was to be paid on the entire 4350 tons, and th a t the advance fre ig h t payable was, therefore, tw o-thirds
° f the fre ig h t on 4350 tons. B u t the words of the side clause do not support th a t contention,
^OL. IX ., N. S.
because, though i t mentions 4350 tons as the agreed capacity of the vessel, i t provides fo r a deduction of “ p ro r a ta fre ig h t on any quantity of cargo short delivered in San Francisco.” So th a t the sum to be paid as fre ig h t is one which is to be ascertained either by knowledge or by speculation as to what amount of cargo may be delivered at San Francisco. For the p la in tiffs it was argued that, in providing fo r the payment o f tw o-thirds of the fre ig h t in advance, the parties m ust be supposed to have excluded from consideration everything th a t m ight happen at San Francisco, because they have inserted in to the clause the expression “ ship lost or not lost,” showing thereby an intention th a t the obligation to pay advance fre ig h t should not depend on any speculation as to what m ight happen subse
quently. The Lord Chief Justice held th a t th a t argum ent could not be sustained, and I agree w ith him . I th in k th a t the advance fre ig h t is payable on the amount of cargo to be delivered.
The parties have agreed th a t in one event, the loss of the ship, i t is payable on cargo which cannot be delivered, b ut the provision w ith regard to th a t one event does not cut down the rig hts of the parties in other events. Here certainty has been substituted fo r speculation, and a certain p art of the cargo has been excluded from the
The parties have agreed th a t in one event, the loss of the ship, i t is payable on cargo which cannot be delivered, b ut the provision w ith regard to th a t one event does not cut down the rig hts of the parties in other events. Here certainty has been substituted fo r speculation, and a certain p art of the cargo has been excluded from the