either to load or to give notice that he would not load, paying at the same time £500. The ship went to X. The charterer neither loaded nor gave the notice; the ship returned by Y., making a larger freight than if she had returned straight from X. Held, that the shipowner could not recover the £500, as the charterer had given no notice, but only unliquidated damages, and that, as he had profited by the breach, the damages were nominal (a).

Case 3.-A.'s ship was chartered by C. to load coal at X. and proceed to Z. A. broke his contract. C. chartered another vessel, at a higher freight, and purchased coal at a higher price, the first cargo being lost through the delay. Held, C. could recover from A. as damages: (1) the excess freight paid; (2) primâ facie, the excess price of coal, but that A. might meet this by showing a corresponding rise in the value of coal at Z. (b).

Note 1.-"To load in regular turn."--Where the "regular turn" is lost through the negligence of one of the parties, he will be liable for all subsequent delay resulting from such loss. Thus, a ship chartered to load in "regular turn" lost her turn through default of the charterer, and was detained eleven days till her turn came round again, when she was detained three days by weather before she could begin to load. Held, that the charterer was liable for the whole fourteen days' delay, the three days' delay being the legal and natural consequence of his first default (c).

Note 2.-In favour of estimating, in reduction of damages, freight the master might reasonably have earned, is the case of Harries v. Edmonds (1845) (d); where a ship was chartered at 28. 8d. per quarter to carry oats from X. to Z., six days being allowed for loading at X.; before the six days were up, the charterer's agent offered a cargo at 2s. 6d., and said the charterer's broker would pay the difference. There was also an offer of a cargo at 28. 2d., conditional upon calling at Y. Both these offers were refused. After the lay-days expired, the captain had other offers, and ultimately took a cargo at 18. 9d. Held, that the captain was not bound to accept either offer before the laydays expired, but that after the lay-days expired he was bound to accept the best offer, so as to relieve the charterer as far as possible. This is supported by a dictum of Bramwell, B., in Bradford v. Williams (1872) (e): "the captain would clearly be bound to find some occuption for his ship; otherwise, when he brought his action the charterer would have good cause to com

(a) Staniforth v. Lyall (1830), 7 Bing. 169; Bell v. Puller (1810), 2 Taunt. 286, where the charterer was allowed to earn both charter freight and freight aliunde, turns on an express proviso in the charter.

(b) Featherston v. Wilkinson (1873), L. R. 8 Ex. 122.

(c) Jones v. Adamson (1875), 1 Ex. D. 60; see also Taylor v. Clay (1846), 9 Q. B. 713.

(d) 1 C. & K. 686.

(e) L. R. 7 Ex., at p. 262.

plain." In Frost v. Knight (1872) (f), Cockburn, C.J., said: "In assessing the damages for breach of performance, a jury will, of course, take into account whatever the plaintiff has done, or has had the means of doing, and as a prudent man ought in reason to have done, whereby his loss has been, or would have been, diminished"

On the other hand, in Smith v. Maguire (1858) (g), Martin, B., doubted "whether a party who breaks a contract has a right to say to the other party: 'I will not pay you the damages arising from my breach of contract, because you ought to have done something else for the purpose of relieving me of it.' I am not prepared to say that a shipowner who has lost his freight by reason of a breach of contract by the charterer is bound to go and look for employment for his ship, so as to relieve the charterer from the consequences." In Brown v. Muller (1872) (h), where the contract was to deliver 500 tons of iron, one third in each of the months, September, October, and November, and in August the vendor gave notice that he did not mean to deliver any iron, it was argued that the purchaser should at once have made a new contract for such iron; but the Court held "that he was not bound to enter into such a contract, which might be either to his advantage or detriment, according as the market might fall or rise. If it fall, the defendant might fairly say that the plaintiff had no right to enter into a speculative contract, and insist that he was not called upon to pay a greater difference than would have existed had the plaintiff held his hand. . . . I do not think the plaintiff could be called upon to enter into a fresh contract. . and if it should happen that he might have done better for the defendant by waiting and making no speculative contract, the defendant would have in his turn a fair right to complain that his loss had not been mitigated as far as possible." Though the reasoning here seems at first sight to confirm the view taken by Martin, B., it will be noted that: (1) the right of the defendant to have his loss mitigated in some way is recognised; (2) there is a wide distinction between the refusal to load a ship, where there is at once a fixed maximum of damage, the freight, less the expenses of earning it, which may be lessened by substituted freight, less its expenses, and a refusal to deliver goods at some future period, where it is uncertain what the loss ultimately sustained will be, and where a heavy fall in the market may convert the purchaser's loss into a gain. While, therefore, the results of a new contract made on the breach of the old one must, in the case of iron, be very speculative and uncertain, in the case of the ship such a contract will usually mean a reduction of damages. In Roper v. Johnson (1873) (i), where the facts were similar, the Court, in the

(f) L. R. 7 Ex. 111, at p. 115.
(g) 3 H. & N. 554, at p. 567.

(h) L. R. 7 Ex. 319.
() L. R. 8 C. P. 167.

286

DAMAGES FOR FAILURE TO LOAD.

absence of evidence that a new contract could have been obtained on terms that would mitigate the purchaser's loss, fixed the measure of damages at the difference between the contract-price and the selling-price on each day of delivery. But the judges admitted that if the vendors had shewn that the purchasers might have made a new contract to diminish their loss, such evidence would have been available in reduction of damages.

In Wilson v. Hicks (1857) (k), the question of what the captain could reasonably have done after breach was left to the jury, to aid them in estimating the damages. This case, however, seems directly contrary to Harries v. Edmonds (1845) (l), and Hudson v. Hill (m), in that the alternative proposals were made to the captain before his lay-days had expired. A similar question of reasonableness was raised in Hudson v. Hill. Mayne on Damages (4th ed. pp. 165, 275) treats the matter as unsettled.

Though the cases are inconsistent, the better opinion seems to be that freight, which a reasonable owner might and would have obtained after final breach, must be reckoned in reduction of damages, after deducting the expenses of earning it. It will certainly be safer for the captain to earn the best freight in his power.

So, also, a shipper of goods must do what is reasonable to lessen his loss from a breach of contract by the shipowner; thus, he must purchase goods to supply the deficiency at the lowest price. If he can avoid delay by paying a small sum for dues, he should do so, recovering it from the shipowner; and he cannot recover damages for delay which he might have so avoided (n).

This view is supported by the dicta of Sir J. Hannen in The Blenheim (o), that the plaintiffs in an action for damage to cargo by collision ought to have tried to diminish the loss as much as possible; and of Lord Herschell in The Argentino (p), that what the shipowner could have earned on another adventure should be set off against any sum allowed him for loss of voyage by collision.

Article 161.-Dead Freight.

"Dead freight" is the name given to damages, whether

(k) L. J. 26 Ex. 242.

() 1 C. & K. 686.

(m) 43 L. J. C. P. 273.

(n) Möller v. Jecks (1865), 19 C. B., N.S. 332; Alexiadi v. Robinson (1861), 2 F. & F. 679; aliter if the sum is exorbitant: see The Norway (1864), 12 L. T., at p. 62; and per M. Smith, J., at 19 C. B., N.S. p. 341.

(0) (1885), 10 P. D., at p. 171.

(p) (1889), 14 App. Cas., at p. 524.

liquidated or unliquidated, claimed for breach of a covenant in a charter to furnish a full cargo to a ship (q).

For such damages no lien on goods actually carried in the ship exists at Common Law (r); but such a lien may be given by usage, or express contract of the parties (q).

Case 1.-A vessel was chartered to carry a full cargo of bones at so much per ton, the shipowner to have a lien on the cargo for "freight, dead freight, and demurrage." Only 386 tons were shipped; 210 tons more could have been shipped. The master claimed a lien on the cargo shipped for damages for failure to ship the 210 tons. Held, that the charter gave him such a lien (9).

Case 2.-A ship was chartered to load a full cargo at named freights, "but, if the ship should not be fully laden, C. to pay not only for the goods which should be on board, but also for so much in addition as the ship could have carried. And, in case no goods were shipped, then C. should at the end of the voyage pay full freight for the vessel to A. as if she had been fully loaded." A full cargo was not shipped, and the master claimed a lien on the goods carried for "dead freight" due for goods not carried. Held, that no such lien existed at Common Law (s).

Note. It is doubtful whether the term "dead freight" must not be confined to damages ascertained or ascertainable by the charter itself, i.e. liquidated damages for breach of covenant to furnish a full cargo. In support of this view we have the cases of Pearson v. Goschen (1864) (t), and Gray v. Carr (1871) (u). In Pearson v. Goschen there was a charter to load a full cargo at 908. per ton, the master to have an absolute lien for all freight, dead freight and demurrage on the said cargo laden on board. Damages were claimed for short loading, and the cargo detained under the lien for "dead freight" The Court, Williams, Willes, Byles, and Keating, JJ., held that the term "dead freight" did not include "damages in respect of room lost in consequence of the charterers not loading according to the charter," and that, though there was nothing else in the charter for the term "dead freight" to apply to, the clause as to lien, being an ordinary printed clause, need not necessarily have a precise meaning given to every word in it. The next case in point of time was McLean v. Fleming (q), a Scotch case, decided in May, 1871, where the House of Lords held that a lien for dead freight, meaning unliquidated damages, might be given by specific contract. Lord Westbury expressly dealt with the inconvenience of a lien for an unliquidated sum, by admitting it, but saying: "It was impossible

(q) McLean v. Fleming (1871), L. R. 2 H. L. (Sc.) 128.

(r) Phillips v. Rodie (1812), 15 East, 547 ; Birley v. Gladstone (1814), 3 M. & S. 205.

(s) Phillips v. Rodie: vide supra.

(t) 17 C. B., N.S. 352.

(u) L. R. 6 Q. B. 522.

to set up any consideration of inconvenience in answer to the clear terms of the contract." Lord Chelmsford rather weakened the judgment by saying that the case "could hardly be considered as one of unliquidated damages, because the proper measure of damages was the amount of the agreed freight on the deficient quantity of 210 tons," though, he added, whether the damages were liquidated or unliquidated, the charter gave a lien for them. Lord Westbury said that the calculation at the agreed freight per ton was not correct, as it took no account of the expenses of loading and carrying the 210 tons; and that, therefore, the damages must be unliquidated. Lord Colonsay also held it equally clear in principle and authority that there might be, by express contract in the charter, a lien for unliquidated damages as "dead freight." The Lords expressly abstained from dealing with Pearson v. Goschen, on being informed that it was about to be considered in another case in the Exchequer Chamber. This was Gray v. Carr (decided June, 1871): the arguments in this case were heard before the judgments in McLean v. Fleming, of which the judges appear to have seen a note, though not a very full one, and some of them in giving judgment expressly deal with the case. In Gray v. Carr there was a charter to load a full cargo; an absolute lien on the cargo for all freight, dead freight, demurrage, and average; short shipment; and a lien claimed for damages sub nomine "dead freight:" the damages were not ascertainable from the charter. On these facts, Kelly, C.B., Channel, B., and Willes and Brett, JJ., held such a lien not sustainable, the damages claimed not being dead freight, while Bramwell and Cleasby, BB., dissented. The majority took the view that "dead freight" only meant liquidated damages, and distinguished McLean v. Fleming, on Lord Chelmsford's suggestion that the damages were there ascertainable from the charter. They dwelt on the inconvenience of a lien for an unascertainable amount (v), and met the argument that if" dead freight" did not mean this, there was nothing in the charter that it could mean, by the suggestion in Pearson v. Goschen, that in contracts written into a general printed form, it was not necessary to give a meaning to every word in print. They expressly followed Pearson v. Goschen. Of the minority, Bramwell, B., admitting it was not necessary to give every word in print a meaning, apparently held the point doubtful, but for McLean v. Fleming which bound him, while Cleasby, B., took the line that in Gray v. Carr, the "dead freight" was capable of liquidation with very little trouble.

Clearly, if the view of McLean v. Fleming taken in Gray v. Carr is correct, dead freight must be limited to "damages ascertained or ascertainable from the charter," and this con

(v) Cf. Clink v. Radford (1891), 1 Q. B. 625, per Lord Esher at p. 629; Bowen, L.J., at p. 631; Fry, L.J., at p. 633.