the said ship having undergone some repair8*
resumed her voyage to London with the remainder I of the said cargo on board, and w ith no other Merchant Sh ip p in g Company v. Ar m it a g e.
M A R ITIM E LA W CASES.
187 E x. Ch.] Me s c h a n t Sh ip p in g Co m p a n y v. Ab m it a g e. [Ex. Ch. cargo, and arrived in port and proceeded to theWest India Docks, and on the 12th Aug. 1872, was reported inwards at the Custom House.
7. The b ill of lading freights upoD the cargo which arrived in London have been received by the plaintiffs, and amount to the sum of 34821.
7s. lOcl., and the defendants advanced to the master at Cochin the sum of 3641. 14s. Id. for dis
bursements of the said ship, making together the sum of 3847Z. Is. lid ., but the defendants have not paid the plaintiffs the sum of 11521. 18«. Id., being the balance of the said lump freight of 5000Z., mentioned in the said charter-party, and refused to pay the same to the plaintiffs.
The court may draw inference of fact.
The question for the opinion of the court is, whether the plaintiffs are entitled to payment by the defendants of the balance of the said sum of 50001. under the said charter-party, after giving credit for the said aggregate sum of 38471. Is. lid . which has_ been received by them on account thereof P I f the court shall be of opinion in the affirmative, the judgment shall be entered up for the plaintiffs for the balance of the lump freight of 50001., viz., 11521. 18s. Id., w ith costs of suit. And i f the court shall be further of opinion that the plaintiffs are entitled to interest, then for a further sum for interest to be calculated for such period at such rate and by such person as the court may direct. I f the court shall be of opinion in the negative, then judgment with costs of defence shall be entered up for the defendants.
The Court of Queen’s Bench were of opinion that the plaintiffs were entitled to payment by the defendants of the balance of the said sum of 50001., viz., 11521. 18s. Id., and also to interest on the sum of 1I52Z. 18«. Id. at the rate of 5 per cent, from the 12th Oct. 1872, and gave judgment accordingly, (See ante, p. 51.) On this judgment error was brought.
The plaintiffs’ points for arguments were: first, that by the terms of the charter-party the lump freight of 50001. became payable without reference to the amount of the cargo delivered; second, that the ship having been chartered by the defendants for a lump sum for a certain voyage, and by them Put up as a general ship, any amount of 50001.
which she had earned on the voyage would have belonged to the defendants, and as there has been a loss upon the voyage, i t must fall upon them, aud not upon the plaintiffs ; thirdly, that the lump sum of 50001. was by the terms of the charter- party payable for the use and hire of the ship.
The defendants’ points were : first, that the sum of 5000Z. was payable for the carriage and delivery of the cargo, and not merely for the performance of the voyage by the ship ; secondly, that the said furnp freight did not become due because there was not a delivery of the cargo; thirdly, that no action lies on the charter-party for the said lump freight, because it did not become due under the charter-party; fourthly, that the plaintiffs can recover only on an implied assumpsit for a iuantum meruit; fifthly, that enough money has been paid to satisfy the claim of the plaintiffs.
Watkin Williams, Q.O. (with him M'Leod), for the defendants, contended that the lump freight Was not, under the terms of the charter-party,
*arned by the plaintiffs because there was not a of the entire cargo, the words of the iarty being “ a lump sum freight of be paid after entire discharge and rig h t
d e l i v e r y
charter
n d ! . to
delivery of the cargo in cash two months after the date of the ship’s report inwards, &c.” Subse
quent clauses of the charter-party show that the 50001. was not to be paid by way of hire or rent of the ship for a given time, or for several ser
vices, but was a lump sum which the charterers agree shall be the minimum amount of the freight to be earned, thus: “ the master to sign bills of lading at any rate of freight required without prejudice to this charter-party, but should the aggregate freight by bills of lading amount to less than the lump sum of 5000Z. already stipulated for, the difference to be deducted from the amount to be drawn for disbursements, and the balance, if any, to be paid in cash at the rate of exchange for sight bills existing at the time of the ship’s clearing in Colombo.” The “ balance ” referred to here means the difference between the b ill of lading freight aud the charter-party freight, minus the disbursements. The 50001. was not agreed to be paid for the voyage : the charter-party was, in fact one of a speculative character, the charterers being w illing to run a certain risk. I t is submitted that the 50001. was freight in the strict sense of the term, and consequently was not earned as to the goods destroyed, and, there
fore, not delivered.
Further, assuming that the defendants are not rig h t in this contention, then, according to the plaintiffs, the 50001. is one indivisible lamp sum and cannot be apportioned. In Bright v. Cow- per (Brownlow’s Hep. 21), an action of covenant was brought upon a covenant made by a mer
chant with a master of a ship, that if he would bring his freight to such a port, then he would pay him such a sum; part of the goods having been taken away by pirates, and the residue brought to the place appointed, and there un
loaded, the merchant would not pay, and the question was whether the merchant should pay the money agreed for since all the merchandise was not brought to the place appointed; and the court was of opinion that he ought not to pay the money, because the agreement was not by him performed. In Abbott on Merchant Shipping, p.
385, llt'n edit., i t is stated, “ In the case of a general ship, or of a ship chartered for freight, to be paid according to the quantity of the goods, there can be no doubt that freight is due for so much as shall be delivered, the contract in these cases being distinct, or at least divisible in its own nature. But suppose a ship chartered at a spe
cific sum for the voyage, without relation to the quantity of the goods (in which case the contract as observed by Lord Chancellor Hardwicke is more properly a contract for the use of the ship than for the conveyance of the merchandise) should lose part of her cargo by a peril of the sea, but convey the residue to a place of destination, in this case I do not find any authority for appor- tioningthefreight. Anditseem sto have been the opinion of Malynes (p. 100) that nothing would be due; and the case of Bright v. Cowper, which w ill be mentioned hereafter, may be considered as an authority in support of that opinion.” A n autho
rity to the same effect is 3 Kent’s Com. 227, “ In the case of a general ship, or one chartered for freight, to be paid according to the quantity of goods, freight is due for what the ship delivers.
The contract, in such a case, is divisible in its own nature. B u t i f the ship be chartered at a specific sum for the voyage, and she loses part of her
188 M A R IT IM E LA W CASES.
Ex. Ch.] Merchant Sh ip p in g Company v. Ar m it a g e. [E x. Ch. cargo by a peril of tbe sea, and conveys the residue,
i t has been a question whether the freight could be apportioned. The weight of authority in the English books is against the apportionment of freight in such a case, and the question has been repeatedly discussed and determined of late years.
I t has been held that the contract of affreight
ment was an entire contract, and unless fully per- formed by delivery of the whole cargo, no freight was due under the charter-party, in the case where the ship was chartered for a specific sum for the voyage. The delivery of the whole cargo is, in such a case, a condition precedent to the recovery of the freight. The stipulated voyage must be
actually performed. A partial performance is not sufficient, nor can a partial payment be claimed, except in special cases.” For this last proposition Kent refers to Post v. Robert
son (1 Johnson’s Rep. 24.) Parsons (in his Law of Shipping, vol. 1, p. 293, note 4) says: “ We have seen that in the case of a general ship freight is sometimes due for the goods delivered ; but, when a ship is chartered for a specific sum for tbe voyage, and only a part of the cargo is delivered, the rest being lost by a peril of the sea, it has been held, both in England and in this country, that in an action of covenant on the charter-party there can be no apportionment of freight. In Post v.
Robertson (1 Johnson’s Rep. 24) the question came before the Supreme Court of New York, and i t was held that in an action of covenant freight could not be recovered unless all the goods had been delivered. A m ajority of the court were also of opinion that if a portion of the goods had been received an action of assumpsit would lie to re
cover freight 'pro rata on the implied promise. See also Sturgis v. Gairdner (2 Brevard’s Rep. 233.) The question was raised and discussed in Weston v.
Minot (3 Woodb. & Min. 436), but not decided.
Woodbury, J. suggested that to avoid the difficulty, the proviso that freight should be paid pro rata, though a fu ll cargo should not by accident or other unblamable cause, be delivered, should be inserted in the contract of affreightment.”
[ Po l l o c k.—B.—-In Ritchie v. Atkinson (10 East, 305), Lord Ellenborougb says : “ No doubt if the master do not bring home a fu ll loading, the other shall recover; but the w riter (Malynes) does not say that that is a condition precedent to the claim of freight in proportion to what is actually brought home. In all the cases of conditions precedent the thing to be done is some indivisible thing, but delivery of a cargo of goods is not one entire thing, but in its nature divisible.” ] The Court of Queen’s Bench decided the present case, on the authority of Robinson v. Knight (ante, p. 19; L. Rep.
8 C. P. 486) but the charter-party in that case was not of the speculative character which i t is submitted the charter-party in the present case is ; and the same remark applies to the case decided by the P rivy Council of the Norway (2 Mar. LavV. Cas. O. S. 17, 163, 254; 3 Moore’s P. C., N. 8., 245.) [ Br a m w e l l, B.—Are we not bound by the case decided by the P rivy Council, unless it can be distinguished?] I t has been decided that courts of common law are not bound by a decision of the Privy Council (a ); and the case of the Norway is distinguishable. There the freighter, by the charter-party, agreed to pay a lump sum as freight “ for the use and hire of the
(a) See Smith v. Brown, ante, p . 56.— Ed.
vessel.” That was not freight in the strict sense of the term, in which sense, i t is submitted, i t is used in the present case. Sir E. Y . W illiams said, in delivering judgment (2 Mar. Law Cas.
O. S. 257): “ although the lump sum is called freight in the charter-party and bills of lading, yet we th in k i t is not properly so called but that it is more properly a sum in the nature of a rent to be paid for the use and hire of the ship on the agreed voyages. The charter-party ex
presses that a sum of 11,250?. is to be paid a freight for the “ use and hire of the ship,” and this lump sum is to cover both the outward and homeward voyages, without any distinction as to how much of it is to be attributed to the outward and how much to the homeward voyage. I f this be so, the shipper has had the fu ll consideration for the money agreed to be paid. The ship took out the salt, and received the rice on board, and performed her homeward voyage according to her engage
ment, and the event, that by the act of God it became impossible to carry to the port of destina
tion the rice jettisoned and the rice sold, ought not to affect the shipowners’ rig ht to receive the fu ll amount of the stipulated payment. I t was objected on behalf of the respondent that by the charter-party the remainder of the lump sum is made payable only on ‘ a true and final delivery of the cargo at the said port of discharge.’ But this does not necessarily mean that the whole cargo originally shipped must be delivered. I t may well have been intended merely to fix the time for pay
ment to be the time of the delivery of such cargo as the ship brings w ith her to the port of dis
charge ” I f the cargo taken home and delivered is accepted, the shipowner, though he cannot re
cover the whole of the lump sum, may recover a proportionate part of it, on a quantum meruit.
Manisty, Q.0. (w ith him Petheram), for the plaintiff, was not called upon.
Lord Co l e r id g e, C.J.— Idonotthinkthatw e need trouble you, Mr. Manisty. E rror is brought on a judgment of the Court of Queen’s Bench, which proceeded on the authority of the case of Robinsonv.
Knight (ubi sup.) decided by the Court of Common Pleas, and in accordance w ith the decision of the P rivy Council in the case of The Norway (ubisup-)- I do not find from the short note of the present case given in the Law Reports (8 C.P. 469) that the members of the Court of Queen’s Bench in follow
ing the decisions in these two- cases intimated any doubt as to the correctness of the decisions or in any way dissented from them.
The present case seems to me to be reality on all fours with those two cases, is true that the words of the charter-party in the present case are not identical with those in either of tho two cases referred to. 1°
Robinson v. Knight the contract was that the ship should proceed to Riga, to load at Bolderan or Mulgraben a fu ll cargo of lathe wood, the sh'P to be provided with a deck load, not exceeding what she could reasonably stow, &c., and shoula then proceed to London and deliver the same on being paid freight as follows : a lump sum of 315«->
the freight to be paid in cash, half on arrival an the remainder on unloading and rig h t delivery o the cargo, less four months’ discount on ha >
at 5 per cent, per annum. Part of the carg0 loaded in accordance w ith the charter-party haviu„
been lost by perils of the sea, without an.v default of the master or crew, i t was hel
i n I t
M A K IT IM E L A W CASES.
189 Ex. Ce.i Me r c h a n t Sh ip p in g Co m pan y v. Ar m it a g e. [Ex. Ch. that the shipowner was, on delivery of the remainder of the cargo, entitled to the fu ll sum. Iu the case of the Norway the contract was a little different. The ship was to be made ready and load at Liverpool a cargo of salt, not exceeding 2200 tons, arid therewith proceed to Calcutta, and after the discharge of the outward cargo, reload (or at freighter’s option proceed to other towns) a complete cargo of lawful merchandise not exceed
ing what she could reasonably stow and carry, and being so loaded, should proceed therewith to Cowes, Queenstown, or Falmouth, at the master’s option, &c. “ In consideration whereof and every
thing before mentioned, the freighter hereby pro
mises and agrees to load and receive, or cause to be laden and received, in the manner and within the time therein mentioned fo r these purposes, and pay or cause to be paid as freight for the use and hire ofjthe vessel 11,2501. lump sum, if ordered to the United Kingdom, Havre, or Bordeaux; 11,2501.
if ordered to Antwerp or Marseilles, the master guaranteeing to carry 3000 tons dead weight of cargo upon a draft of 26ft. of water, or to forfeit freight in proportion to deficiency,” &c. I t was found as a fact by Dr. Lushington in the court below that the jettison of a portion of the cargo and the sale of the damaged portion of it were the consequence of negligence or want of sk ill on the part of the pilot, for which the shipowner was
^sponsible, but the Judicial Committee of the Privy Council found, as a conclusion of fact, that the jettison had not arisen from any negligence on the part of the pilot. There was, however, a non
delivery in point of fact of the entire cargo.
Notwithstanding that it was held that the contract was satisfied, and that as to the portion of the Cargo jettisoned and that damaged, as i t was not shown to have arisen from the negligence of the pilot, or want of prudence on the part of the master, there ought to be no deduction from the himp freight on account of non-delivery. And o ir E. Y. Williams, in his judgment, intimated a,i opinion that even if the jettison had been attributable to the negligence of the master, there
?ught not to be a deduction, saying that perhaps m such a case the proper remedy of the shipper w°uld be by a cross action.
These two cases we are now in tru th called to review. Robinson v. Knight (ubi sup.) ls not binding on us, neither is the decision
** the P rivy Council in the ease of the Aorjvay, unless we concur in it. The courts of T1 f stminster Hall do not feel themselves bound by decisions' of the P rivy Council unless they agree them. A t the same time I must say that judgments of the P rivy Council are entitled to he 'greatest possible weight, and, though not mding, are to be regarded with the greatest t"espect by any court in this country. The con- ract which we have to consider in the present
°ase, is one, as i t seems to me, not substantially distinguishable from that in the two cases referred . the present case the ship was to proceed .? Cochin, there load from the charterers, com- h eting at Colombo or Inticorin, if required by dem, a fu ll and complete cargo, and thence pro- to London in the East or West India Docks nd discharge there as customary, the act of God, atraints of princes or rulers, the Queen’s ene- .les, fire, and all and every other of the seas, Vers, and navigation of whatever kind soever
during the said voyage excepted. Then comes the
during the said voyage excepted. Then comes the