« ForrigeFortsett »
began to operate, and several of the crew deserted. Difficulties arose in get. ting the cargo discharged, and several of the crew were taken by the master before a magistrate and sent to prison. But when the cargo had been discharged, the master, in order to secure the services of those of the crew who had not deserted, entered into fresh articles, under which they were to receive 61. on the home voyage, and took on board four of the crew, whom he had caused to be imprisoned. There was, however, one of the crew whom the master voluntarily discharged at Melbourne, and when he arrived at Bombay he discharged the four men whom he had taken from prison at Melbourne. The consequence was, that the vessel made the voyage home from Bombay with a crew of only eighteen men.
Lord CAMPBELL inquired against whom the action was brought, and, on being informed that it was against the owners, his Lordship said he doubted whether, under the circumstances, the master had authority to make such an agreement so as to bind the owners.
Mr. MILLWARD said there was a voluntary discharge of one of the crew at Melbourne, and of four more at Bombay. The consequence was, that more labour was imposed upon the plaintiff than he contracted for. These circumstances, the learned counsel thought, took the case out of the ordinary rule.
Lord CAMPBELL said, he was of opinion that the nonsuit ought not to be disturbed. If the plaintiff had been in the situation of being delivered from the obligation of the articles which he had signed, he might have entered into a new agreement with the captain, and the captain would have had authority to make the owners liable ; but the plaintiff never was delivered from that obligation, and the master had no authority to enter into the agreement. In the course of a voyage, circumstances might arise which would justify the master in discharging one of the crew; or the course of the voyage might be changed so as to warrant the master in entering into a fresh contract. But there was no case of that sort here. The plaintiff had contracted to go on a voyage to Melbourne and back, and to receive 31. a month as wages. It was clear that the desertion was the foundation of all that took place at Melbourne; and what took place at Bombay could not affect the contract which had been previously signed at Melbourne. In deciding this case, he (Lord Campbell) could not lose sight of the ground of public policy, and thought that the most mischievous cousequences would follow to the commerce of this country if such agreements as the present could be enforced.
The other judges concurred.
The term Charter Party is generally understood to be a corruption of the Latin words charta partita ; the two parts of this and other instruments being usually written in former times on one piece of parchment, which was afterwards divided by a straight line cut through some word or figure, so that one part should fit and tally with the other, as evidence of their original agreement and correspondence, and to prevent the fraudulent substitution of a fictitious instrument for the real deed of the parties. With the same design, indentation was afterwards introduced, and deeds of more than one part thereby acquired among English lawyers the name of Indenture. This practice of division, however, has long been disused and that of indentation is become a more form
This instrument, when the ship is let at the place of the owners' residence, is generally executed by them, or some of them (and frequently by the master also), and by the merchant or his agent. In a foreign port it must, of necessity, if it be by deed under seal, be executed by the master only, and the merchant or his agent, unless the parties have an agent resident in such port authorised to this purpose by deed or letter of attorney under seal -- Abbott.
CUSTOM AS TO BROKERS' COMMISSION.
VICE-CHANCELLOR'S COURT, WEDNESDAY, Dec. 21, 1853.
(Before Vi'e-Chancellor Sir W. P. Wood.)
BRENAN V. PRESTON.
The VICE-CHANCELLOR delivered judgment in this case, which occupied the court for so many days during last term, and in the present sittings The facts are as follows :- The plaintiffs are part owners to the extent of 52-64ths of a screw steam-ship called the Phæbe, the defendants, Preston and Watson, being owners of the remaining 12-64ths. In the month of February, 1851, the plaintiffs and defendants became joint owners under an agreement of that date, by which the defendants were to be interested to the extent of 8-64ths. By the agreement in question they were also appointed ship's husbands, brokers, and agents, at a remuneration of 301. per annum for keeping the ship’s books, 51. per cent. on all “ charters ” effected, or for loading the ship on the berth, and 21. 108. per cent. on all “inward freight.” It was also agreed that Brenan should be “master” at a salary thereby fixed, and 21. 108. per cent. on the “freight," and a clause was added in these words—“Wherever freight is mentioned in this agreement it means 'gross' freight and passage-money.” It was further agreed that if three-fourths of the owners should find that Preston and Watson, as ship's husbands or agents, or Brenan, ag master, should have committed any gross act of negligence or fraud, they should have the power of discontinuing their services by purchasing their shares on the terms therein-mentioned, and notice signed by three-fourths of the owners was to be given of such intention ; and in case of their wrongful removal at any time from being ship's husbands, &c., they were to be at liberty to sue for a sum of 1,500! by way of liquidated damages. After the execution of this agreement, the number of shares assigned to the defendants was increased to 12-64ths. In September, 1851, a charter party was made to Messrs. Burns and M'Iver, of Liverpool, which, after much negotiation with Watson, was concluded on the expressed terms of the charterers paying the sum of 1301. per week for the ship. They accordingly freighted her, and she was employed by them up to the month of October, 1852, during the whole of which period, as it afterwards appeared, they had paid the defendants the sum of 1341. per week, and it was with respect to this additional sum of 4l. per week, of the payment of which the plaintiffs were wholly ignorant, and of which no account had ever been rendered by the defendants, that these disputes arose. As soon as the plaintiffs became aware of the fact, they took immediate steps for the dismissal of the defendants, and served them with notice according to the terms of the agreement, in which notice the conduct of the defendants was specifically pointed out as fraudulent. This notice was served by Mr. Smith, on the 19th of October, on Watson, who then made statements as to this 41. per week having been received by the defendants, which statements it is unnecessary to notice, except as being inconsistent with a letter written on the same day by them, after an interview which Watson had had with his own solicitor, Mr. Radcliffe. In answer to this letter a reply was written by Mr. Smith, pointing to these inconsistencies, and couched in very offensive terms as regarded the conduct of the defendants. Much correspondence afterwards took place, which resulted in the original bill being filed. The case has been several times before the court on interlocutory applications; and in December, 1852, on a motion which then came on to be heard before the Lords Justices for an injunction against the defendants, who had obtained and kept possession of some of the machinery of the ship, their Lordships made an order, whereby the defendants were restrained till further order from acting as ship's husbands, brokers, or agents, and, upon certain undertakings being given by the plaintiffs and their solicitors, the machinery was ordered to be given up to Brenan, who was also appointed receiver and manager of the machinery till some other was appointed. Several actions had also been commenced by the defendants against the plaintiffs in respect of the 1,5001. liquidated damages for their alleged wrongful removal; and also against Brenan in respect of some alleged agreement with him previously to that of February, 1851 ; all which actions had also been restrained by injunction on certain terms which it is now unnecessary to specify. A great mass of evidence was read on both sides during the hearing of the cause, and the defendants principally relied on the testimony of upwards of fifty witnesses whom they had examined from all the ports in the kingdom, as to the custom pursued with regard to the commission payable to brokers upon effecting charter parties; and also on the fact, which was alleged by them, that Brenan himself had been aware of their receiving the 4l. per week in question. An objection was also taken to the validity of the notice of dismissal, on the ground of its not having been signed by threefourths of the owners, one of them having signed for himself alone, and not being entitled to any shares except as partner with his brother. Evidence was also read with a view of showing that Mr. Denny and his brother had not authorised the institution of the suit : that they had repudiated any notion of a fraud on the part of the defendants; and that, this being the case, no relief could be given against the other part-owners, their co-plaintiff's, upon the record. A petition had also been presented by the defendants, founded upon the order made by the Lords Justices in December, 1852, alleging that they had delivered up the machinery, as ordered, to Brenan; that he had assumed the entire management of the ship; that he had made voyages in her, and had realised considerable profits thereby, and that, on application being made by the petitioners to the plaintiffs and their solicitors for an account of their profits, the only answer had been a sketch of an account, not examined or approved, by Brenan, and which was alleged to be erroneous. Other allega. tions were made by the defendants, and, among them, that Brenan had employed his sons in situations in the ship for which they were incompetent, and at higher wages than they were entitled to, and that he had taken out his daughter in the ship, at the expense of the owners. And the petition prayed for accounts against Brenan, and for his removal from being master, and that he might be disallowed payments for wages to his sons, and all other sums improperly disbursed by him. This petition stood over, to be disposed of when the decree in the suit was pronounced, and now formed part of the case in respect of which judgment was given.
His Honour said :— The main questions to be considered are, whether or not, under the circumstances in which the Phæbe was placed, and with reference to the charter party in question, the conduct of the defendant Watson in obtaining the commission of 41. per week, which was confessedly not communicated to the owners at the time, must be taken to be such as to justify the notice of dismissal having been given; and if that notice was not justified, then whether the fraud has not been such as to call for the removal of the defendants by the Court. 'No culpability seems to have attached to Mr. Preston, the transaction throughout having been conducted by the defendant Watson. The facts of the case, up to May, 1852, are not disputed. In drawing a conclusion from these facts, I have considered the case quite irrespectively of the evidence adduced by the plaintiffs, and entirely on that cf Watson himself. The decree would be, that the 41. received by the defendants under the agreement ought to have been received on account of the owners; that the receipt of that sum, without communicating the fact of such agreement, was fraudulent, and entitled the owners of three-fourths of the shares to give notice to determine the agency, and that it was determined by such notice. The injunction restraining the defendants from acting as ship's husbands, &c., must be made perpetual; the account of all sums received to be taken; the costs of the suits, and of all the proceedings at law to be paid by the defendants; an inquiry as to the value of the defendants' shares in the ship if they acquiesce in a sale; and a direction for purchase by the plaintiff's at that valuation ; if the defendants decline to sell, then no order on that part of the case. Liberty to apply.
A discussion then ensued as to what was to be done in respect of the undertakings which had been given on the hearing of the motion before the Lords Justices in December, 1852, the ship being at present out of the jurisdiction (and, as was stated, very probably in the hazardous neighbourhood of Trebizond), which resulted in the undertaking given by the plaintiffs being continued, but that of their solicitors withdrawn.
COURT OF COMMON PLEAS, WESTMINSTER, Nov. 8, 1853.
(Sittings in Banco.—Michaelmas Term.)
LIEDEMANN V. SCHULTZ.
This was an appeal from the decision of the Judge of the County Court of Northumberland, held at Newcastle upon-Tyne, and tried with a jury in August last, the present respondent, Schultz, being then plaintiff, when a verdict was found for the plaintiff for 501.
Mr. Bovill now moved, on a special case setting out the facts, to set aside the verdict and judgment, and for a new trial, on the ground of misdirection on the part of the County Court Judge.
The action was brought to recover 501. for not loading the plaintiff's vessel with coke within a reasonable time. On the 11th of January last a charter party was entered into between the respondent and the appellant, by which the respondent, the master of the British privileged ship the Triton, of 383 tons register, agreed to go from London to the Tyne, and on arriving there, “ forth with, and in regular turns of loading, to take on board by spout or keel, as directed, a complete cargo of four keels of coals, and the remainder coke," for Messrs. A. Liedemann and Co., the appellants. By an act of Parliament, called the Coal Turn Act, persons desirous of having their vessels loaded are to enter their names on what is called “a fitter's list,” and there are lists for vessels to be loaded at the “spouts,” and also for vessels to be loaded at the barges ; and no vessel can be entered on a list until it is either in the Tyne, or within two hours of arrival, and it must then take its turn for loading accord. ing to its entry, and at the place for which it is entered. The provisions of this statute, made to enforce vessels taking their regular turn in loading, apply ouly to cargoes of coal, and not to coke; but the Triton was chartered to load a cargo of each. With regard to loading vessels with coke, there is no statutory regulation, but it is alleged there is a customary usage.
The Triton arrived at Newcastle on the 25th of January, and was entered on the coal list of a particular colliery to take her turn on the 26th. The coals were ready for her on the 26th, but in consequence of her own delay in unshipping ballast she did not take in her cargo of coals until the 3rd of February. As to the coals there was no complaint, but that the cargo of cokes had not been loaded in a reasonable time. The vessel was entered on a coke list of a particular colliery three days after the charter party, and when she arrived, on the 25th of January, there were only two vessels on the coke list, one of which was called the Fourteen. On the 3rd of February, after the Triton had taken in her coal cargo, she found the Fourteen, one of the vessels before her, still taking in her cargo of coke, and she had to take her turn after her. Before the Fourteen was loaded frost set in, and her loading was stopped from the 3rd to the 26th of February by snow blocking up the tramroads, and it was the 3rd of March before the Triton could begin loading coke, and she finished taking in her cargo on the 11th. During the delay the master, the present respondent, urged Messrs. Leidemann to load with despatch at another colliery, which the appellant agreed to do if the respondent would pay 1s. per ton, the difference in the price of the coke from the other colliery. This however the respondent refused to do. On the 8th of July the respondent brought his plaint in the county court, to recover damages for the alleged unreasonable delay to which his ressel had been put; and on hearing the plaint, for the then defendants it was urged that the charter party was to load the vessel in the regular turns of loading, and evidence was tendered to explain what the custom of the port was as to loading coke—that “it was customary to enter a vessel as soon as chartered on the fitter's list for her turn, and to load coke accordingly," but this evidence was rejected by the learned judge, who directed the jury that the words of the charter party, “regular turns loading,” meant that the coal was to be loaded first, and the coke after vards," and that whether or not the loading had taken place in a reasonable time was a question for the jury. The learned counsel contended that the question was one of much importance, and if such a construction of the charter party were allowed to prevail, vessels might be
kept waiting for months. He referred to “Robertson v. Jackson," 2 C. B. Rep. 412 ; " Tyers v. Jonas,” 2 Exch. Rep. 111.
Mr. Udall, for the respondent, contended that the judgment was right, and that a reasonable construction must be put upon the charter party.
The CHIEF JUSTICE.--You mean that the appellant must load in a reasonable time, without reference to the custom of Newcastle or to the act of Parliament.
Mr. CdAll—No, he did not go so far as that; but the appellant might have loaded within a reasonable time if he would have taken higher priced coke.
The CHIEP JUSTICE said, if the learned counsel could make out his argument, the coalowners would give him a statue of gold; for the captain, anxious to load his vessel, would say, “I have a right to go to spout A, because I can get quickly loaded there," although the coalowner might be charging there 5s. a ton more than anybody else. He was of opinion that the appeal should be allow. ed, and that the case should be tried again. The simple point in the case was whether the learned judge was right or wrong in rejecting the parol evidence of the custom. He was of opinion that he was wrong. The worls in the charter party, "regular turns," meant what turn according to the custom or practice of the port the ship was entitled to have, and the evidence rejected was admissible for proving what the custom was. There must be a rule, therefore, to set aside the verdict and judgment, and for a new trial, the respondent to pay the costs of the appeal.
COURT OF EXCHEQUER, FRIDAY, APRIL 21, 1854.
(Sittings in Banco.)
GIBSON V. STURGE.
This was an action to recover 441. lls. 5d. claimed for freight of corn, under a charter party, from Odessa to Glocester. At the trial before Mr. Baron Martin it appeared that the bill of lading was for “2,664 quarters of corn, inti and quality unknown," and that 2,764 quarters were delivered at Glocester, the excess being possibly to be accounted for either by a mistaken measurement at Odessa, and certainly to some extent by heat and damage at sea. The de fendant paid the freight for the 2,664 quarters shipped, but refused to pay for more, while the plaintiff claimed to be paid on the quantity delivered. His Lordship thought the plaintiff was entitled to recover, and this rule was moved to review that ruling.
Rule nisi granted.
BOTTOMRY AND RESPONDENTIA, The contract of bottomry is in the nature of a mortgage of a ship, when the owner of it borrows money to enable him to carry on the voyage, and pledges the keel or bottom of the ship as a security for the re-payment: and it is understood that if the ship be lost, the lender also loses his whole money; but if it returns in safety, then he shall receive back his principal, and also the premium or interest stipulated to be paid, however it may exceed the usual or legal rate of interest. When the ship and tackle are brought home, they are liable, as well as the person of the borrower, for the money lent But when the loan is not made upon the vessel, but upon the goods and merchandises laden therein, which from their nature must be sold or exchanged in the course of the voyage, then the borrower only is personally bound to answer the contract, who, therefore, in this case is said to take up money at respondentia. In this consists the difference between bottomry and respondentia, that the one is a loan upon the ship, the other upon the goods: in the former, the ship and tackle are liable, as well as the person of the borrower; in the latter, for the most part, recourse must be had to the person only of the borrower. Another observation is, that in a loan upon bottomry the lender runs no risk, though the goods should be lost; and upon respondentia the lender must be paid bis