Sidebilder
PDF
ePub

CT. OF APP.]

MIRABITA V. THE IMPERIAL OTTOMAN BANK.

[CT. OF APP.

firm at Larnaca, for certain umber to be sold to | Pappa that a new bill of exchange for 254l. 11s, and shipped for the plaintiff by Phatsea and Pappa at Larnaca.

On the 7th July 1873 the plaintiff wrote to Phatsea and Pappa, stating that he would send ships on receiving advice of the quantity of umber ready for shipment, and also that the bills of lading must state that Phatsea and Pappa shipped the umber" by order and on account of the plaintiff.

[ocr errors]

On the 26th Aug. 1873 Phatsea and Pappa had 600 tons of umber ready for delivery and shipment under the contract, and they chartered, by order of the plaintiff, and for his account, a British ship, the Princess of Wales, then lying at Alexandria, to carry a cargo of such umber from Larnaca to London. The plaintiff approved of the charterparty. The Princess of Wales proceeded to Larnaca, where she took on board a cargo of 600 tons of umber. About the 9th Oct. the plaintiff sent 150l. to Phatsea and Pappa for ship's advances, of which sum 701. was paid to the master.

On the 9th Oct. the master signed four bills of lading for the cargo, which stated the goods to be shipped by Phatsea and Pappa, and to be delivered "to order cr assigns." The bills of lading were given to Phatsea and Pappa.

On the 10th Oct. the Princess of Wales sailed from Larnaca, and on the 14th Oct. Phatsea and Pappa informed the plaintiff by telegram that the vessel had left with 600 tons on the 10th inst.; that they would shortly receive bills of lading and draft at sixty days, and requesting them to insure the cargo. The plaintiff communicated with his son, F. Mirabita, trading in London as Mirabita Brothers, and through him effected an insurance on the cargo.

Phatsea and Pappa drew a bill of exchange for 280 Turkish liras on the plaintiffs, and indorsed and handed it with the bills of lading to Corkji, from whom they had bought the umber which formed the cargo. Phatsea and Pappa had paid Corkji for the umber, and they handed him the bill of exchange by way of accommodation, to enable him to obtain an advance from the defendants, and in anticipation of future supplies of umber.

Corkji discounted the bill of exchange at the Larnaca agency of the defendants' bank, and with the bill of exchange handed them the bills of lading, saying that they were to be sent to Constantinople, and given up to the plaintiff on payment by him of the bill of exchange at maturity.

The Larnaca agency forwarded the bill of exchange and bills of lading to their bank at Constantinople, Pappa having come to Coustantinople and handed to the plaintiff the charter-party and invoice of the cargo, which stated that the same was "shipped by order and on account of" the plaintiff. The defendants' bank at Constantinople presented the bill of exchange to the plaintiff for acceptance, but he declined to accept without receiving the bills of lading. The bill of exchange and the bills of lading were then returned to the Larnaca agency. The plaintiff afterwards offered to the defendants' bank at Constantinople to pay the bill of exchange before maturity on receipt of the bills of lading, but in consequence of the documents having been returned to Larnaca this offer could not be accepted.

should be drawn by Phatsea and Pappa to the order of Corkji on Mirabita Brothers in London at two months' date, which should be substituted for the former bill for 280 Turkish liras, and notice of the agreement was given to the defendants' bank at Constantinople.

A new bill of exchange, dated the 9th Oct. 1873, was, in accordance with the terms so agreed, drawn by Phatsea and Pappa, and sent by them to Corkji, who handed it to the Larnaca agency, saying that it was to be sent with the bills of lading to London, where Mirabita Brothers would be ready to accept and pay the bill of exchange at maturity against delivery of bills of lading. The Larnaca agency accordingly gave up the first bill of exchange, and on the 20th Nov. 1873 forwarded the bill for 2541. 11s. to their agency in London, and directed them "to give up the bills of lading on payment of the inclosed bill of exchange."

At the time of making the agreement with the plaintiff for the drawing of the bill of exchange for 2541. 118. as already mentioned, it was doubtful whether the bills of lading would reach England before the arrival of the ship. Pappa thereupon gave the plaintiff a letter, addressed to the master of the Princess of Wales, to be used in case the ship should arrive in England before the bills of lading, which letter purported to authorise the master, if the bills of lading had not come to hand to deliver the cargo to the plaintiff.

On the 3rd Dec. the Princess of Wales reached Gravesend, and was ordered to the Millwall docks by F. Mirabita.

On the same day the bill of exchange for 2547. 11s., together with the bills of lading, was delivered by post, and in the course of the day was left at the office of Mirabita Brothers with the following note attached: "Bill of lading for terra umber, weighing 600 tons, per Princess of Wales, to be given up against the payment of attached draft, 2541. 118., on Mirabita Brothers."

F. Mirabita returned the bill of exchange to the defendants' London agency, stating that he was ready to pay the bill at maturity, but he did not then accept it.

On the 8th Dec. the defendants' London agency gave orders to the ship's brokers to enter cargo in the name of the bank, and on the 12th the cargo was entered at the Custom-house in the defendants' name; but the defendants took no other steps towards taking possession of the cargo till after 20th Dec.

On the 12th Dec. F. Mirabita called on the defendants and offered to pay the bill and receive the bills of lading. The defendants' manager refused to accept payment, alleging that they had taken possession of the cargo, and thereby had made themselves liable for freight.

On the 18th Dec. F. Mirabita again offered to pay the bill of exchange, and to give a guarantee for the freight. After some further negotiation the defendants landed the cargo, and, after heavy charges for demurrage, landing, and other expenses had been incurred, sold the cargo in bulk, without any authority from the plaintiff or F. Mirabita, for a sum which was not sufficient to pay the amount of the bill of exchange, freight, and expenses; the cargo was worth more than the amount of the bill of exchange, freight, and expenses, and if the plaintiff had obtained possesIt was then arranged between the plaintiff and sion of it, he would have made a profit therefrom.

CT. OF APP.]

MIRABITA V. THE IMPERIAL OTTOMAN BANK.

So far as it was a question for the jury, the arbitrator found as a fact that it was the intention of Phatsea and Pappa, and of the plaintiff, that the property in the cargo of umber should pass to the plaintiff upon its shipment on board the Princess of Wales, subject to a lien on the same for payment of the price; and their intention that the property in the cargo should be vested in the plaintiff continued from the time of shipment until the arrival of the ship in England.

The court to be at liberty to draw inferences of fact, and to disregard the above finding, if a jury would not have been justified in coming to such a conclusion from the facts above stated. The question was whether the plaintiff was entitled to recover damages from the defendants for their dealing with the cargo as above mentioned.

The Divisional Court (Cleasby and Huddleston, BB.) gave judgment for the plaintiff, and the defendants appealed.

Jan. 17 and 22-H. Matthews, Q.C. and Arthur Wilson for the defendants.-The property in the cargo of umber did not pass to the plaintiff, and therefore he can have no claim against the defendants for dealing with it as they did. There was no sale of specific goods, and the fact that the shippers took bills of lading by which the umber was to be delivered to their order or assigns, and afterwards gave an interest to Corkji, which interest Corkji transferred to the defendants, would prevent any property from passing to the plaintiff :

Wait v. Baker, 2 Ex. 1;

Turner v. The Trustees of the Liverpool Docks, 6 Ex.
543; 20 L. J. 393, Ex. ;

Van Casteel v. Booker, 2 Ex. 691; 18 L. J. 9, Ex. ;
Ellershaw v. Magniac, 6 Ex. 570;

Shepherd v. Harrison, 1 Asp. Mar. Law Cas. 66;
24 L. T. Rep. N. S. 857; L. Rep. 5 H. of L. 116;
Ogg v. Shuter, 3 Asp. Mar. Law Cas. 77; 33 L. T.
Rep. N. S. 492; L. Rep. 1 C. P. Div. 47; 45 L. J.
41, C. P.;

Gabarron v. Kreeft, and Kreeft v. Thompson, 8; Asp.
Mar. Law Cas. 36; 33 L. T. Rep. N. S. 365; L.
Rep. 10 Ex. 274; 44 L. J. 238 Ex.;
Jenkyns v. Brown, 14, Q. B. 496.

F. M. White, Q.C. and Archibald for the plaintiff.-The question as to the passing of the property is a question of fact, and the exact point of time at which it passes varies according to the circumstances of the particular case. Here it appears from the special case that it was the intention of the parties to pass the property to the plaintiff upon shipment of the cargo, subject to a lien for the price; this finding is borne out by the facts, and the authorities show that it is a question of intention. See, in addition to the authorities already referred to:

Benjamin on Sales, book 2, c. 5, pp. 265, 271, 2nd
edit. ;

The notes to Coggs v. Bernard, 1 Smith's L. C. 203,
6th edit. (citing Kemp v. Westbrooke, 1 Vesey 278,
and Franklin v. Neate, 13 M. & W. 481);
Browne v. Hare, 3 H. & N. 484; 4 H. & N. 822, 27 L.
J. 372, Ex.; 29 L. J. 6, Ex.;

Wood v. Bell, 5 E. & B. 772; 6 E. & B. 355; 25 L. J.
148 and 321, Q.B.;

Joyce v. Swan, 17 C. B. N. S. 84. Arthur Wilson in reply.

Cur. adv. vult. Feb. 18.-The following judgments were delivered :

BRAMWELL, L.J.-This case has been argued on the footing that the law of England or a like law is applicable, and we must so deal with it. We must treat as the governing bargain between the

VOL. III., N.S.

[CT. OF APP.

plaintiff and Phatsea and Co., the one made at the time it was arranged that the payment should be made by a bill at two months, and that the vendees should not be entitled to the 600 tons of umber, or bills of lading of them, until payment of the bill of exchange. No question arises as to the defendants' rights, for it was admitted, and properly admitted, that the defendants did wrong in refusing the amount of the bill and selling the umber. On the other hand there is no contract between the plaintiff and the defen dants, so that in the result the case is reduced to this: When the defendants tortiously disposed of the umber, had the plaintiff such a property therein, a right thereto, as to entitle him to maintain this action? It is argued that he had not, and the reason given is, that, as the umber bought was not specific and ascertained, and as on shipment the shippers took a bill of lading to order, and gave an interest in it to Corkji, who transferred it to the defendants, no property passed, and for this a long series of authorities, beginning with Wait v. Baker (ubi sup.) and ending with Ogg v. Shuter (ubi sup.), is cited. It is almost superfluous to say that by these authorities I am bound, that I pay them unlimited respect, and I may add I do so the more readily as I think the rule they establish is a beneficial one. But what is that rule? It is somewhat variously expressed, as being either that the property remains in the shipper, or that he has a jus disponendi. Undoubtedly he has a property or power which enables him to confer a title on a pledgee or vendee, though in breach of his contract with the vendor. This appears from Gabarron v. Kreeft (ubi sup.), Wait v. Baker (ubi sup.), and to some extent from Ellershaw v. Magniac (ubi sup.). In the first case Parke, B. expressly says that the vendee Baker could, under the cir cumstances, maintain an action against Lethbridge for having sold the barley to Wait. This property or power exists then; and therefore, if the vendors of the umber had sold it to the defendants, this action would not be maintainable. But in that case the defendants would have acquired a right, while, as I have said, it is admitted that no right in them can be relied on. I think it is not necessary to inquire whether what the shipper possesses is a property, strictly so called, in the goods, or a jus disponendi, because, I think, whichever it is, the result must be the same, for the following reasons: That the vendee has an interest in the specific goods as soon as they are shipped is plain. By the contract they are at his risk. If lost or damaged they must bear the loss. If specially good, and above the average quality which the seller was bound to deliver, the benefit is the vendee's. If he pays the price, and the vendor receives it, not having transferred the property, nor created any right over it in another, the property vests. It is found in this case that as far as intention went the property was to be in the plaintiff on shipment. If the plaintiff had paid, and the defendants had accepted, the amount of the bill of exchange, it cannot be doubted that the property would have vested in the plaintiff. Why? Not by any delivery. None might have been made, the defendants might have wrongfully withheld the bill of lading. The property would have vested by virtue of the original contract of sale. It follows that it vested on tender of the price, and that whether

2 Q

CT. OF APP.]

MIRABITA V. THE IMPERIAL OTTOMAN BANK.

[ocr errors]

the vendor's right was a right of property or a jus disponendi; for whichever it was, it was their intention that it should cease on the plaintiff's paying the price, and therefore it would cease unless meanwhile some title had been conferred on a third person to something more than the price. This, though wrongful as regards the plaintiff, would have been valid. But no such title exists here. There is nothing in the authorities inconsistent with this. The only case that may be thought to seem so is Wait v. Baker (ubi sup.), where, though the vendee tendered the price, he was held to have acquired no property. But it is manifest that in that case the vendor originally took the bill of lading to order, and kept it in his possession to deal with as he thought fit, and never intended that the property should pass until he handed the bill of lading to the vendee on such terms as he chose to exact. Parke, B. says: "There is no pretence for saying that Lethbridge agreed that the property should pass. There was nothing that amounted to an appropriation in the sense of that term which alone would pass the property... There was no agree. ment between the two parties that that specific cargo should become the property of the defendant," the vendee. Here all the evidence shows that there was such an agreement. The arbitrator says it existed, in fact, at the time of shipment, but the subsequent conduct of both parties shows it. What seems decisive is this, the plaintiff must have a right against someone. Has he any against Phatsea? Now Phatsea has done nothing that he had no right to do, he has done everything he was bound to do, treating the altered agreement as governing. No action therefore would lie against him. It must then be the defendants who are in the wrong. I think they are, that the property was to pass on payment, and consequently on tender of payment of the bill of exchange, that the bill of lading was handed to the Larnaca Bank to be delivered to the plaintiff on payment of the bill of exchange, and that, therefore, the plaintiff can maintain this action, and judgment should be affirmed. I would add that I agree with the reasoning of my brother Cleasby in the court below; and I would further remark that I believe this is a question which would not have been open to the slightest doubt if the action had been brought after the coming into operation of the Judicature Acts. Cotton, L.J. has favoured me with a perusal of his judgment, and I entirely agree with it.

COTTON, L.J.-In this case the vendors, on shipping the goods, the subject of the contract, took a bill of lading requiring the delivery of the goods to bo to their order, and dealt with that bill of lading in this way in order to secure payment of the bill of exchange which they then drew on the plaintiff. The bill of exchange was discounted with the defendants, and the bill of lading was transferred to them as security for the bill of exchange; this bill of exchange having been refused acceptance, a second bill of exchange was drawn and given in lieu of the first bill, upon the terms of the delivery of the bill of lading to the plaintiff upon payment of the second bill of exchange, and in so dealing with the bill of exchange the vendors intended that, upon payment, the plaintiff, the purchaser, should obtain the goods, and they agreed, and as far as they could transferred to the purchaser their right to insist, that on payment of

[CT. of App.

the bill of exchange the bill of lading should be handed over. I mention those facts for the purpose of adding this: that the action was instituted before the passing of the Judicature Acts, and therefore it is simply to be dealt with as a legal question; and we cannot inquire here how far the plaintiff has the right in equity to insist that he occupies the same position as the vendors, and to insist that, as against the pledgee of the bill of lading, the plaintiff, as transferee of the right, has a good equitable title, even if he has not a legal title. In fact, in the present case, it simply turas on this question, whether the property in the goods in question has, under the circumstances, passed to the plaintiff. Now. I quite agree with the judgment of Bramwell, L.J., but as several cases were cited in the argument, which it was contended were adverse to the ground of our decision, I think it better to state what I consider to be the principle of those decisions, and to point out how far that principle is applicable to such cases as this. Under a contract for sale of chattels not specific the property does not pass to the purchaser unless there is afterwards an appropriation of the specific chattels to pass under the contract; that is, unless both parties agree as to the specific chattels in which the property is to pass, and nothing remains to be done in order to pass it. In the case of such a contract the delivery by the vendor to a common carrier, or (unless the effect of the shipment is restricted by the terms of the bill of lading) shipment on board a ship of, or chartered for, the purchaser is an appropriation sufficient to pass the property. If, however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent or on behalf of the purchaser but on his own behalf, it is held that he thereby reserves to himself a power of disposing of the property, and that consequently there is no final appropriation, and the property does not on shipment pass to the purchaser. When the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of property therein; and accordingly in Waite v. Baker, Ellershaw v. Magniac, and Gabarron v. Kreeft (ubi sup), in each of which cases the vendors had dealt with the bills of lading for their own benefit, the decisions were that the purchaser had no property in the goods, though he had offered to accept bills for, or had paid, the price. So, if the vendor deals with or claims to retain the bill of lading in order to secure the contract price, as when he sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be delivered to the purchaser till acceptance or payment of the bill of exchange, the appropriation is not absolute, but until acceptance of the draft or payment or tender of the price is conditional only, and until such acceptance or payment or tender the property in the goods does not pass to the purchaser; and so it was decided in Turner v. The Trustees of Liverpool Docks, Shepherd v. Harrison, and Ogg v. Shuter (ubi sup.). But if the bill of lading has been dealt with only to secure the contract price, there is neither principle nor authority for holding that in such a case the goods shipped for the purpose of completing the contract do not on payment or

CT. OF APP.]

CUNNINGHAM v. DUNN AND another.

tender by the purchaser of the contract price vest in him. When this occurs there is a performance of the condition subject to which the appropriation was made, and everything which according to the intention of the parties is necessary to transfer the property is done, and in my opinion, under such circumstances, the property does on payment or tender of the price pass to the purchaser. Apply these principles to the present case. Pappa did not attempt to make use of the power of disposition which he had under the bill of lading for the purpose of entirely withdrawing the cargo from the contract. He dealt with it only for the purpose of securing payment of the price. It is expressly stated in the special case that Mr. Corkji, who acted for Pappa, discounted the said bill of exchange at the agency of the defendants' bank, and with the bill of exchange handed them the bills of lading, saying that they were to be sent to Constantinople, and given up to the plaintiff on payment of the bill of exchange at maturity. Under these circumstances there was an appropriation by the vendor of the cargo subject only to payment of the price; this was tendered, and as it is conceded that the defendants were wrong in claiming anything more, the plaintiff, the purchaser, had done or offered to do all that was incumbent on him to make the appropriation absolute, and the property vested in him. BRETT, L.J. concurred.

Judgment affirmed.

Solicitors for plaintiff, Stocken and Jupp. Solicitor for defendants, Clements.

Thursday, Feb. 14, 1878.

(Before BRAMWELL, BRETT, and COTTON, L.JJ.)

CUNNINGHAM v. DUNN AND ANOTHER. Charter-party-Shipowner's liability-Action for not loading-Prevention by act of foreign govern

ment.

Plaintiff and defendants agreed by charter-party that defendants' ship, then on her way to Malta, should, "after loading dead weight at Malta for owners' benefit," sail to a first-class Spanish port as plaintiff should order, and load light cargo for plaintiff. A first-class port was described in the charter-party as "any port that a steamer with cargo from a foreign part can load at by Spanish law without risk of detention by customs authorities." Defendants had contracted to load government stores at Malta, and plaintiff knew this. The ship was ordered to Valencia, but on her arrival was unable to load there because the Spanish customs regulations prohibited ships carrying Government stores from loading. A ship carrying any other kind of dead weight could have loaded.

In an action for breach of the charter-party in not loading,

Held (affirming the judgment of Lord Coleridge, C.J.), that plaintiff was not entitled to recover. APPEAL from the judgment of Lord Coleridge, C.J.

The action was brought by the plaintiff, a merchant, against the defendants, owners of the steamship Rainton, for not loading a cargo pursuant to a charter-party made between the plaintiff and the defendants, by which the ship was described as 46 now on her way to Genoa and Malta," and it was agreed that she should

[CT. OF APP.

With all convenient speed, after loading dead weight at Malta for owner's benefit, sail and proceed to Messina, and one first-class Spanish port in the Mediterranean, or two first-class Spanish ports in merchant's option, or one Spanish port only, orders to be given at Malta twentyfour hours' after steamer's arrival there, or so near thereto as she may safely get, and there load from the factors of the said affreighter the remaining measurement space of light cargo only, including all descriptions of fruit, cargo not to exceed 400 tons, nor to be less than 300 tons, which the said affreighter binds himself to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and fur. niture, and being so loaded, shall therewith proceed to a safe place in the river Thames, London, as ordered on arrival at Gravesend, or so near thereto as she may safely get, and deliver the same on being paid freight. . By first class is meant any part that a steamer with cargo from a foreign port can load at by Spanish law, without risk of detention by customs authorities.

The statement of claim further alleged that orders were duly given at Malta to sail to Valencia, and there load; that Valencia is a first-class Spanish port within the meaning of the charterparty, that the plaintiff had his cargo ready to be loaded at Valencia, and that the said steamship did not load the said cargo at Valencia, but, by and through the default and breach of agreement of the defendants, neglected to do so.

The statement of defence alleged that

At the time the said charter-party was entered into, the said steamship was on her way to Malta, and bound to load there certain military stores for the English Government as the plaintiffs then well knew, and the words in the said charter-party "after loading dead weight at Malta," referred to and were intended by the plaintiff and defendants to refer to the said military stores, and the defendants did not know of anything to prevent the fulfilment of the said charter-party, and did not know of anything to prevent the said steamship with the said military stores on board, loading merchandise stany first class Spanish port and the said steamship in pursuance of the said charter-party loaded the said military stores at Malta. And the customs' regulations which were in force at Valencia during all the times mentioned in the statement of claim, prohibited merchandise at that port from being put on board vessels having military stores on board, and by the regulations in force at Valencia at the times aforesaid, any attempt to load at Valencia merchandise on board a vessel having military stores on board would expose such vessel to the risk of detention and to detention by the customs authorities there, and by reason of the premises, Valencia was not a firstclass Spanish port within the true intent and meaning of the said charter-party and the agreement therein contained.

The said steamship proceeded to Valencia, and was ready to take on board there the agreed cargo, but the plaintiff was prohibited by the custom's authorities there from loading the same, and neglected to load the same.

Even if the said steamship was not ready to take on board the agreed cargo, the plaintiff suffered no damage thereby, because, if the steamship had been ready, the plaintiff would have been prohibited and prevented by the customs authorities of the said port from loading the said cargo on board the said steamship, and was, in fact, prohibited and prevented by the said customs authorities from loading the said cargo on board the said steamship, and from performing the said charter-party on his part.

At the trial, which took place at Guildhall on the 5th Dec. 1877, before Lord Coleridge, C.J., and a special jury, it was proved that the Rainton loaded military stores at Malta and sailed to Valencia, in order to load there pursuant to the charter party. She arrived at Valencia on the 16th Nov. 1875. At that time vessels, having military stores on board, were prohibited by the Spanish Custom-house regulations from loading at Spanish ports. The plaintiff's agent at Valencia, the British Vice-Consul at Valencia, and the

CT. OF APP.]

CUNNINGHAM v. DUNN AND ANOTHER.

British Ambassador at Madrid endeavoured to obtain permission from the Spanish Government for the Rainton to load at Valencia, but although she was permitted to anchor in the port, permission to load was refused, and she was obliged to go to sea again, and the cargo which had been intended for her had to be shipped by other vessels, and the plaintiff sought to recover damages for extra freight expenses, and loss of commission thereby sustained.

In answer to questions left to them by Lord Coleridge, the jury found that the plaintiff did know that the dead weight to be taken by the Rainton at Malta was military stores.

That he knew it, first, when the charter-party was entered into, and, secondly, when he ordered the Rainton to proceed to Valencia. That he knew this fact would prevent the loading of the other cargo and subject the ship to embargo, and that he knew it when he ordered the ship to Valencia.

That the defendant knew these facts subsequently to receiving a telegram from the Foreign Office. (This was after the Rainton had gone to Malta.)

There were other findings not material to this report.

Lord Coleridge, C.J., gave judgment for the defendants, and the plaintiff appealed.

Murphy, Q.C. and Bray for the plaintiff.Judgment was entered for the defendants wrongly on the construction of the charter-party, and on the findings of the jury. The parties must be bound by the written contract into which they have entered, and no evidence to show that there was a contract to carry Government stores from Malta can be admissible. A difficulty which was in existence before the contract was entered into, cannot excuse performance; it is only something arising after the contract which can have that effect. Here the defendant should have provided against the difficulty beforehand:

Paradine v. Jane, Alleyn, 27; Medeiros v. Hill, 8 Bing. 231. These cases are in point here, and Harris v. Dreesman (23 L. J. 210, Ex.) is not.

Cohen, QC (Gainsford Bruce with him) for the defendants.-Macdonald v. Longbottom (1 E. & E. 977, 987; 28 L. J. 293, Q. B.; 29 L. T. 256, Q. B.) is in favour of the defendants; and so is Ford v. Cotesworth (3 Mar. Law Cas. O. S. 190; 19 L. T. Rep. N. S. 634; L. Rep. 4 Q. B. 127; in the Exchequer Chamber, 3 Mar. Law Cas. O. S. 468; 23 L. T. Rep. N. S. 165; L. Rep. 5 Q.B. 544). In that case Blackburn, J., in delivering the judgment of the Court of Queen's Bench, says (L. Rep. 4 Q. B. at pp. 133, 134): "We agreed that whenever a party to a contract undertakes to do some par. ticular act, the performance of which depends entirely on himself, so that he may choose his own mode of fulfilling his undertaking, and the contract is silent as to time, the law implies a contract to do it within a reasonable time under the circumstances. And if some unforeseen cause, over which he has no control, prevents him from performing what he has undertaken within that time, he is responsible for the damage. But where the act to be done is one in which both parties to the contract are to concur and both bind themselves to the performance of it, there is no principle on which, in the absence of a stipulation

[CT. OF APP.

to that effect, either expressed by the parties or to be collected from what they have expressed, the damage arising from an unforeseen impedi. ment is to be cast by law on the one party more than on the other; and consequently we think that what is implied by law in such a case is, not that either party contracts that it shall be done within either a fixed or a reasonable time, but that each contracts that he shall use reasonable diligence in performing his part. It is on the application of this principle to a charter-party that the present question depends. We think that delivering cargo is as much the duty of the shipowner as of the merchant; and consequently that the contract implied by the law, in the absence of any stipulation in a charter-party, is that each party shall use reasonable diligence in performing his part of the delivery at the port of discharge, the merchant being ready to receive in the usual manner, and the owner, by his captain and crew, to deliver in the usual manner." This judgment, which was affirmed by the Exchequer Chamber, proceeds on the consideration that loading and discharging a ship is something to be done by both parties to the contract. If that is correct it follows that the defendants here cannot be liable.

39

Murphy, Q.C., in reply referred to Stanton v. Richardson (1 Asp. Mar. Law Cas. 449; 27 L. T. Rep. N. S. 513; L. Rep. 7 C. P. 421), affirmed in the Exchequer Chamber (2 Asp. Mar. Law Cas. 288; 30 L. T. Rep. N. S. 643; L. Rep. 9 C. P. 390.)

[ocr errors]

BRAMWELL, L J.-I think the judgment ought to be affirmed. I think there was no default in either party at Valencia. The case when the ship was at Valencia would be governed by Ford v. Cotesworthy (ubi sup.), for I think both parties were ready there. A point was made by Mr. Murphy that it was the fault of the ship. He says she warranted that she was fit to take in cargo, but she did not so present herself at Valencia. I know of no authority for that; I will deal with the charter-party. It describes the ship as now on her way to Genoa and Malta," and goes on to provide that she "shall with all convenient speed, after loading dead weight at Malta for owner's benefit, sail and proceed" to certain ports named, and load cargo for the affreighter. This provision was introduced to protect the shipowner, by entitling him to load dead weight for himself before he became liable to fulfil his engagement with the charterer, and it does show that the ship is going on a voyage to Malta to load dead weight; there is no restriction as to the nature of the dead weight, and I think the fair construction is that the ship was going on her voyage there, and there is no general warranty. It may, however, be suggested that, supposing there were no general warranty of that sort, still the charterer would be entitled to say to the shipowner, "you have no right to disable yourself from performing your part of the contract." I think there is some weight in that contention, but there are two observations to be made in answer to it; first, the defendants did not know that there was an impediment, for there was evidence that they thought what they did could be safely done; it is said they had no right to risk it, but I am not so clear as to that, for I do not think we can put in the words "Government stores," which do not appear on the face of the charter-party. But, secondly,

« ForrigeFortsett »