H. o f L.] Isis St e a m s h i p Co m p a n y v. Ba h r, Be h b e n d, a n d Ro s s. [H. o f L.
stopped her engines. I feel the fu ll force o f th a t suggestion, h ut I am not able to yield to it, and do not th in k th a t th is rule is one -which can he, under those circumstances, broken w ith im punity. When a vessel has broken a statu
to ry rule the onus on those who seek to say th a t it is im m aterial is a very considerable one. In th is case one is necessarily cast upon a m atter of im agination. One has to consider whether i t can possibly he the case th a t the fa ilu re o f the H e rm a n n Koeppen to obey th is rule is im m aterial. I am not able to come to th a t conclusion. I t is a m atter fo r im agination, and nobody can possibly say what would have happened if the H e rm a n n Koeppen had obeyed th a t rule. Everyone can conjecture what would have happened. The result would have been, in the firs t instance, th a t she would have been in a better position to hear the follow ing whistles of the Rondane. Those on board of her say th at th a t would have made no difference, because they, in fact, heard them. I am not satisfied th a t th a t is a fa ir observation to make, because if they had heard them w ith the engines stopped I am not sure they would not have been in a position to appreciate more accurately what the position of the other vessel was. I t is said th a t the whistles kept on broadening, and I have said th a t I th in k th a t is taking an exaggerated _ view o f those whistles, and I am not sure th a t if the H e rm a n n Koeppen had stopped and listened to those whistles those on board would not have ascer
tained more accurately what it was the Rondane was doing—namely, th a t she was rounding the Newarp. Under the circumstances I feel com
pelled to say th a t I do not th in k the omission of the H e rm a n n Koeppen to obey the rule can be excused. I say candidly th a t I am compelled to find th is w ith great regret, because I th in k the H e rm a n n Koeppen in every other respect appears to be well navigated in somewhat d iffic u lt circum stances. I confess I was struck by the way in which the evidence on her behalf was given, both by the master and other persons. I thought the evidence was fa irly and sensibly given, and therefore it is w ith great regret th a t I feel compelled to say th a t the H e rm a n n Koeppen has brought herself w ith in the words of art. 16, and I feel unable to absolve her from those conse
quences. F or th a t reason I am compelled to say th a t in this case both vessels are to blame.
Solicitors fo r the p la in tiffs, Stokes and Stokes.
Solicitors fo r the defendants, B o tte re ll and Roche.
H O U S E O F L O R D S . M o n d a y , M a y 11, 1900.
(Before the Lo b d Ch a n c e l l o r (Halsbury), Lords Ma c n a g h t e n, Mo r r is, Sh a n d, and Br a m p t o n.)
Is is St e a m s h ip Co m p a n y v. Ba h r, Be h r e n d, a n d Ross, (a)
O N A P P E A L F R O M T H E C O U R T O F A P P E A L I N E N G L A N D .
C h a rte r-p a rty—F re ig h t—“ F u ll and complete cargo ” — Frozen cargo.
B y a c h a rte r-p a rty made between the appellants
and the respondents i t was agreed th a t the respondents should “ load a f u l l and complete cargo o f wet woodpulp ” on board the appellants’
ship, at an agreed rate o f fr e ig h t. The cargo was to be loaded in m id -w in te r a t a p o r t where severe fro s ts were probable. I t was delivered fro z e n h a rd ,ta n d in ' consequence the ship was only able to load a much sm aller q u a n tity than i f i t had been unfrozen and compressible. The shipowners claim ed damages f o r short shipm ent o f cargo.
H e ld (affirm in g the ju d g m e n t o f the court below), th a t the charterers had not, un de r the c irc u m stances, broken th e ir contract to load a f u l l and complete cargo.
Th is was an appeal from a judgm ent of the Court of Appeal (Sm ith and R igby, L -J J ), W illiam s, L .J. dissenting, who had reversed a judgm ent of Bruce, J. in favour of the appellants (the plain
tiffs below) in a case trie d before him w ithout a ju ry at the Liverpool Assizes.
The case is reported in 81 L . T. Rep. 241; 8 Asp. M ar. Law Cas. 569; (1899) 2 Q. B. 364.
The action was brought to recover 3371 14s. 8d.
dead fre ig h t on an alleged short shipment of 450 tons of cargo, or, in the alternative, to recover the like amount as damages fo r breach of charter in not loading proper or usual wet woodpulp, by reason of which the said pulp stowed so badly th a t the p la in tiffs ’ ship was prevented from being loaded to w ith in 450 tons of her proper cargo.
Other questions between the parties were dis
cussed in the courts below, but th is was the only point raised on this appeal.
The appellants by th e ir statement of claim alleged th a t the respondents had shipped 450 tons short o f a fu ll and complete cargo, and th a t they had thereby lost fre ig h t in respect o f which they had sustained a loss of 3371 14s. 8d , and they alternatively alleged th a t the respondents had not shipped proper or usual wet woodpulp which contained about 50 per cent, o f water, but im properly and in breach of th e ir charter had shipped bundles of ground woodpulp, which were frozen hard and frozen into different and unusual form s and shapes, and not properly rolled up into proper square bundles secured by paper and string, but had supplied the same in loose and insecure rolls and in ro lls and bundles of varying and unusual shapes, in consequence of which the pulp had stowed so badly as to prevent the steamship Is is from being loaded so as to carry w ith in 450 tons of her usual and proper cargo.
The respondents in th e ir defence, w hilst denying the breaches alleged against them, alleged th a t a fu ll and complete cargo was not shipped owing to the bales being frozen too hard fo r compression into the usual space occupied by such bales, in consequence whereof the appellants were unable and refused to receive any fu rth e r cargo although the respondents were ready and w illin g to supply fu rth e r cargo.
The charter-party was made on the 22nd Dec.
1897, between the appellants as the owners of the Is is of the one part and Messrs. A . W ertheim and Co. as charterers of the other part, but fo r the purposes of th is action it was arranged between the parties th a t the respondents, L ive r
pool charterers, should represent Messrs. W ert
heim and Co.
( a ) R e p o r te d b y O . E . Ma l d e n, E s q ., B a r r is t e r - a t - L a w .
H . o fL .] Is is St e a m s h ip Co m p a n y v. Ba h r, Be h r e n d, a n d Ross. B y the charter-party i t was provided th a t the
steamship Is is should w ith a ll possible despatch sail and proceed to Bangor, which is an inland port in Maine in the U nited States, as ordered by charterer, or so near thereunto as she m ig ht safely get always afloat, and there load under deck from the agents of the freighters a fu ll and complete cargo of wet woodpulp, which contains about 50 pei cent, o f water, which the freighters bound them selves to ship, not exceeding what she could reasonably stow and carry over and above her tackle, apparel, provisions, fuel, and fu rn iture , and being so loaded, should proceed to M an
chester or so near thereunto as she could safely get always afloat. I t was fu rth e r provided th at should ice prevent the steamship getting to Bangor she should load at Bucksport, which is a p ort on the same rive r as Bangor, but about tw enty miles lower down, on the same terms as stipulated fo r at Bangor.
I t was stated th a t there were two kinds of wet woodpulp answering to the description in the char
ter-party, one kind known as “ m oist sulphite fibre pulp,” which was compressed in to square parcels and wrapped in paper, and was a more expensive kind of wet woodpulp, and “ m oist ground wood- pulp,” which was coarser and less expensive, and was usually shipped in loose bales tied up but not pressed or closely packed.
On a rrival o f the Is is at Bucksport, ice having prevented her from reaching Bangor, the respon
dents tendered a cargo, a small portion of which consisted of the sulphite fibre pulp, and the larger portion consisted o f m oist ground woodpulp, which, owing to the fro st prevailing at the time, was so frozen as to be rendered quite hard.
When in th e ir ordinary condition and not frozen, the bales o f m oist ground woodpulp are flexible and capable of being compressed so as to be stowed closely together in the corners of the ship’s hold under the beams and stringers, but when they are frozen they are quite hard, and, owing to th e ir irregular shapes, take up much more room in the ship’s hold. In consequence of the frozen condition in which the m oist ground wood- pulp was shipped there was a large amount of broken stowage, and i t was not possible to stow a fu ll and complete cargo.
The cargo actually loaded (about 2496 tons) was short by 450 tons of the cargo which the ship could have carried had the bales been presented fo r shipment in the ordinary way.
The smaller portion of the cargo, consisting of sulphite fibre pulp, compressed and wrapped in paper, was stowed w ithout d ifficu lty and w ithout any loss of space.
A t the tria l o f the action a t Liverpool Bruce, J.
gave judgm ent fo r appellants fo r 3361. upon the ground th a t there was no protection in the charter- party relieving the respondents from lia b ility fo r m atters occasioned by frost.
The C ourt of Appeal reversed th is decision as above mentioned.
The shipowners appealed.
Carver, Q.C., H o rrid g e , and H y s lo p M a x w e ll ap
peared fo r the appellants, and contended th a t this was not a fu ll and complete cargo w ith in the meaning of the charter-party. There was no evidence of any custom to trea t i t as such. The evidence shows th a t theie are two kinds o f wet woodpulp, “ chemical ” and “ mechanical ”
wood-[H . o fL . pulp. The form er is packed in bales of uniform size and shape which can be conveniently stowed, whether frozen hard or n o t; the la tte r can be stowed when i t is soft and compressible, b ut not when frozen hard in irre gu la r packages. I f an a rticle packed in one way gives a fu ll cargo, and in another way does not, the charterer is bound to supply it in such a form th a t a fu ll cargo may be shipped. See
C u th b e rt v. G u m m in g , 11 E xeh. 4 0 5 ;
Cole v. Meek, 15 C. B . N . S. 795 ; 33 L . J . 183, C. P.
Secondly, they were not entitled under the charter-party to ship “ frozen” woodpulp fo r
“ wet.” See
S o u th a m p to n S team C o llie ry C om p any v. C la rke , 19 L . T . Rep. 6 5 1 ; 3 M a r. L a w Cas. O. S. 197 ; L . Rep. 4 E x . 73 ; L . Rep. 6 E x . 53.
This was not “ wet woodpulp ” w ith in the meaning of the charter-party, and the charterers should have provided th a t i f they were prevented from shipping “ a fu ll and complete cargo of wet woodpulp ” as agreed, the loss should fa ll on the ship. There was no exception in the charter- party to relieve the charterers from lia b ility fo r matters caused by frost. I t is a fallacy to say th a t i t was in the contemplation of both parties. See
H u d so n v . E de, 18 L . T . R ep. 764 ; 3 M a r. L a w Cas 0 . S. 1 1 4 ; L . Rep. 3 Q. B . 4 1 2 ;
G ra n t v. C overdale, 51 L . T . Rep. 4 7 2 ; 5 A sp. M a r.
L a w Cas. 3 5 3 ; 9 A p p . Cas. 470 ;
K e a ro n v. Pearson, 7 H . & N . 386 ; 31 L . J . 1, E x . J. W alton, Q.C. and Collingwooct Hope, who appeared f o r th e respondents, were n o t called upon to address th e ir L o rd sh ip s.
A t the conclusion of the argument fo r the appellants, th e ir Lordships gave judgm ent as follows :—
The Lo r d Ch a n c e l l o r (Halsbury). — M y Lords: [A fte r going through the facts o f the case as set out above, his Lordship continued as fo llo w s:] The question is, what was the cargo contracted to be tendered fo r shipment by the charterers. Was it an unfrozen wet woodpulp cargo as is now set up by the shipowners, or a frozen wet woodpulp cargo as such cargoes always are at Bucksport in the w inter P I f i t was to be unfrozen, where was i t to come from w ith fro st of 14 degrees below zero ? There is not even a suggestion made by the shipowners as to this, and much less evidence th a t an unfrozen cargo could have been shipped in w inter either a t Bangor or Bucksport. I t appears to me th a t when the facts are ascertained, there can be but one answer, and th a t is th a t the contract cargo which the defen
dants were to tender to the ship was th a t which they did tender as a fu ll and complete cargo of wet woodpulp containing 50 per cent, of water, in its normal w inter condition, shipped at Bucks
port, namely, as frozen wet woodpulp. A ll th a t the charter-party did was to say th a t the vessel should load a fu ll and complete cargo o f wet woodpulp. I t has been fa in tly contended th a t the merchant was bound to select th a t class of article which would make the greatest amount o f tonnage which could be carried. B u t i t is impossible to m aintain th a t proposition, and counsel wisely abandoned it. N either of the parties to the charter-party took into contemplation th a t the pulp became heavier or lig h te r, or more cumbrous in form , according to the state of the weather.
MARITIME LAW CASES. I l l
H. o f L.]That i t was before th e ir minds must have been clear enough, considering th a t sometimes they had 14 degrees below zero, at Bucksport. B u t it was said there should be some exception, and your Lordships were asked to im ply an exception.
You are not required to do anything of the kind.
I look at the charter-party and I find th a t the article tendered and loaded was w ith in the de
scription o f the charty-party, and was so tendered u n til the ship would hold no more. There has, therefore, been a complete performance o f the stipulations of the charter-party. I cannot help th in kin g th a t the error which I notice both in the judgm ent o f Bruce, J. and of W illiam s, L .J.. is th a t they assumed th a t there had been a breach of the contract. I t is not true to say th a t the ship did not load a fu ll and complete cargo. I t did load a fu ll and complete cargo of the th ing contemplated. Under those circumstances it appears to me th a t the p la in tiffs fa il, and I move your Lordships th a t the judgm ent of the C ourt of Appeal be affirmed, and the appeal dismissed w ith costs.
Lords Ma c n a g h t e n, Mo r r is, Sh a n d, and Br a m p t o n, concurred.
Judgm ent appealed fr o m affirm ed, and appeal dismissed w ith costs.
Solicitors fo r the appellants, JRowcliffes, Rawle, Johnstone, and Gregory, fo r H i ll, D ickinson, D ickinso n, and H i ll, Liverpool.
Solicitors fo r the respondents, Wynne, Holm e, and W ynne, fo r Forshaw and H a w kin s, Liverpool.
J u ly 19, 20, and 23, 1900.
(Before Lords Da v e y, Br a m p t o n, and Ro b e r t s o n.)
We i r a n d Co. v. Un io n St e a m s h ip Co m p a n y, (a)
O N A P P E A L F R O M T H E C O U R T O F A P P E A L I N E N G L A N D .
C h a rte r-p a rty — O b lig a tio n to sup ply ballast.
B y a c h a rte r-p a rty w h ich d id n o t am ount to a demise o r p a r tin g w ith the possession o f the ship by the owners, a ship was, in consideration o f a c e rta in sum p e r m onth, placed a t the disposal o f the charterers to be employed in the conveyance o f la w fu l m erchandise and (or) passengers between c e rta in ports, and i t was stated th a t she was let f o r the sole use and benefit o f the charterers fr o m a specified date on w h ich she was to be placed “ w ith clear holds ” a t the d is posal o f the charterers, they h a v in g the “ whole reach or burth en ” o f the vessel, p ro p e r and suffi
cient room being reserved to the owners f o r the officers, crew, tackle, fu r n itu r e , stores, and p r o v i
sions.
H e ld (a ffirm in g the ju d g m e n t o f the cou rt below), th a t the terms o f the ch a rte r-p a rty d id not reb ut the o rd in a ry im p lic a tio n by w hich the o b lig a tio n o f s u p p ly in g such ballast as m ay be necessary f o r the safe n a v ig a tio n o f the ship rests w ith the
owner.
Th is was an appeal from a judgm ent of the C ourt o f Appeal (Sm ith, C ollins, and W illiam s, L .J J .j, reported in 81 L . T. Rep. 553; 9 Asp.
M ar. Law Cas. 13; (1900) 1 Q. B. 28), who had affirmed a judgm ent of Bigham, J. upon a
[H . o f L.
prelim inary p oint of law ordered to be tried before him .
The respondents had chartered the steamship E lle ric , belonging to the appellants, fo r three round voyages.
The appellants stated th a t on the firs t voyage the respondents directed the master to proceed w ithout cargo from South A frica to New York, which he did. I t was a disputed point whether or not he demanded ballast beyond the ship’s water ballast from the charterers, or inform ed them th a t i t was dangerous fo r his vessel to proceed to New Y ork w ithout it. The ship, how
ever, started from South A frica w ith water ballast only, encountered heavy weather, and in endea
vouring to keep her guaranteed speed broke three blades o f her propeller, and was thus delayed fo r three and a h alf days. In consequence of this delay an additional quantity of coal was con
sumed, amounting in a ll to seventy tons. On the steamer’s a rriva l at New Y ork she had to be put into dry dock to repair the damage, and was fu rth e r delayed five and a h a lf days.
On the second and th ird voyages the captain refused to proceed w ithout cargo unless the char
terers would provide ballast over and above the ship’s water ballast. Under protest they did so provide 600 tons upon the second voyage from N atal and 500 tons upon the th ird voyage from Marseilles.
When paying fre ig h t the charterers claimed a rig h t to deduct, and did deduct, the follow ing am ounts: 315Z., hire of the ship fo r the nine days during which she was unable to proceed owing to the damage received on the firs t voyage;
76Z. 2s. (id., price of the extra coal consumed in consequence of the said damage; 151Z. 11s. 8d., cost of purchasing, shipping, and discharging ballast upon the second voyage; and 92Z. 5s. 7d., cost of purchasing, shipping, and discharging ballast upon the th ird voyage; and sundry small items fo r dock dues, wharfage, overtime, &c.
The shipowners refused to adm it the char
terers’ rig h t to make the foregoing deductions, and in consequence brought the present action to recover the balance o f fre ig h t alleged to be due to them, and in the o rigin al claim to recover the cost of repairs of the damage on the firs t voyage.
The m aterial clauses of the charter-party are set out in the report in the court below and in the judgm ents of th eir Lordships.
B y an order made by Kennedy, J. at chambers i t was directed th a t the follow ing question should be trie d as a prelim inary p oint of la w : “ Whose duty was i t under the charter-party to provide any ballast beyond water ballast th a t m ight be necessary fo r the safe sailing o f the H lle ric on the chartered voyage, and at whose expense P ”
Bigham, J. held th a t i t was the duty of the shipowners under the charter-party to supply the ballast, and gave judgm ent fo r the defendants accordingly, and his judgm ent was affirmed as above mentioned.
The p la in tiffs appealed.
Carver, Q.C. and Leek, fo r the appellants, con
tended th a t though under ordinary circumstances the owner m ust provide the ship in a fit state fo r the voyage, here the position was altered by the
tended th a t though under ordinary circumstances the owner m ust provide the ship in a fit state fo r the voyage, here the position was altered by the