« ForrigeFortsett »
tions respecting her condition to the plaintiff now complained of. If she was, they must find for the plaintiff; if not, for the defendant.
The jury found a verdict for the defendant.
COURT OF CHANCERY, LINCOLN'S-INN, March 7, 1854.
(Before the LORDS JUSTICES of APPEAL.)
ALEXANDER V. SIMMS.
This was an appeal from a decision of the Master of the Rolls, and raised this very important question, whether, where there are joint owners of a vessel in unequal shares, and one of them mortgages his share, and then the two enter into a joint venture in the same proportions as they are interested in the vessel, and the sbip returns to England with a cargo, and before it is discharged the mortgagee takes possession of the vessel, he can take the same proportion of the freight as his mortgagor has in the cargo and vessel, without paying the same proportion of the expenses? Or whether, on the other hand, the expenses are not the first charge on the produce of the freight or cargo ?
Mr. Roupell, Mr. J. P. Wilde (of the common law bar), and Mr. Bevir supported the appeal ; Mr. Bacon and Mr. Rogers were for the trustee and assignee of Mr. Simms; Mr. Follett and Mr. Gill for the defend ant, Mr. Howe; and Mr. J. V. Prior was with Mr. Roundell Palmer for the plaintiff
. Mr. Roupell was heard in reply.
Lord Justice KNIGHT Bruce said that, without at all complaining of the length of time which had been occupied in the argument of the case, he could not refrain from expressing his surprise that it was found possible to extend it to the length to which it had been extended. The question divided itself into two parts, the first part being the more important one-namely, the question of the right between the appellant, Mr. Taylor, the mortgagee, and the plaintiff, Mr. Alexander; the other being the question of right between the appellant and his co-defendants. The first was the really important question, the other, on the present occasion, being comparatively immaterial. His Lordship then, after stating at length the facts of the case as before set out, and after saying he gave no opinion as to what might have been the mortgagee's rights had he entered into possession of the ship on her midway voyage or in a foreign port, still, the ship having come completely to the end of her voyage, and having arrived at her port of destination, the claim made by the mortgagee could not be sustained. Mr. Taylor claimed seven-eighths of the cargo, for freight there was none, the goods being the property of the coowners, without paying any part of the expenses of the fitting out of the vessel, the expenses of obtaining the cargo, and other charges, which the owners had incurred. He claimed to retain seven-eighths of the cargo because he was mortgagee of seven-eighths of the ship, until
such time as he should be paid a sum equal to what would be seven-eighths of the freight, if freight there were. The owner of the other one-eighth of the ship reasonably said that the mortgagee was liable for seven-eighths of the expenses, for it was a partnership adventure between Mr. Alexander and Mr. Simms, and, whatever right Mr. Taylor might have against Mr. Simms, his mortgagor, he had no right against the cargo. The contract as to the cargo was this,--that contract being either express or implied, -that the produce of the adventure, after the payment of all the expenses, should be divided between Mr. Alexander and Mr. Simms in the same proportions as they were owners of the ship. What right, then, had the mortgagee of seven-eighths of the ship to change that contract ? None. When a voyage is completed the mortgagee had no more right against the goods on board the ship than the mortgagor himself could enforce, and the mortgagor must have paid his seven-eighths of the expenses before he could have had any benefit of the goods. There were principle, pleading, reason, justice, and propriety against the case of the appellant, and his appeal must therefore be dismissed, with costs.
Lord Justice TURNER was free to confess that during the very able argument he had been much embarrassed, but had ultimately come to the same conclusion as his learned brother, and agreed that the appeal must be dismissed, and dismissed with costs.
(Before Dr. LUSHINGTON.)
THE VIRTUE. This was an application to the Court for the costs incurred in this suit under the following peculiar circumstances :— The assignees of Phillips and Co., of Newport, were the owners of 40 64th shares of the schooner Virtue, the remainder being held by Mr. Hughes, the captain. The shares held by the assignees were put up for sale by auction, and Mr. Hughes, became the purchaser. He paid a deposit of 371. 10s., and subsequently two sums of 2401. and 501., to Mr. Phelps, the solicitor of the assignees, which it was alleged had not been paid over by him. Mr. Hughes offered to pay the balance; but it was not accepted, and no bill of sale was made out. The assignees arrested the vessel in a cause of possession, and Mr. Hughes then filed a bill in Chancery to compel the performance of the agreement, which was dismissed on the ground that there was not sufficient proof that Phelps was solicitor to the assignees. Other proceedings took place, and the case was finally disposed of by the Lords Justices, who dismissed it because there had been no bill of sale, and the provisions of the Registration Act had not been complied with. The vessel was under the arrest of this Court, by reason of an injunction, for upwards of three years, and, when sold under its decree, produced a net sum of: 83. 3d., having been worth, as represented when the proceedings commenced, 6002. Lord Justice Knight Bruce, in dismissing the appeal, observed that it was a very hard case upor Mr. Hughes, and only gave the sum deposited, 2cl. costs. The assignees now asked for the costs in the cause of possession.
Dr. Jenner appeared for Mr. Hughes ; Dr. Deane for the assignees.
The learned JUDGE said, that if the case had remained before him, and had not been taken into a court of equity, the assignees would not, under the circumstances, easily have induced him to decree them possession of the vessel. The only question that he had now to determine was as to fees, which he must pay, but the court would decree no other costs.
As to DANGERS OF The Seas, see Part VI.
MASTERS OF SHIPS. The master of a ship is the person intrusted with the care and management of it. His power and authority are so great, and the trust reposed in him is of so important a nature, that the greatest care and circumspection ought to be used by the owners in the choice and appointment of him. It appears, by the language of the ancient sea-laws and ordinances, that the master was formerly in almost every instance a part-owner of the ship, and, consequently, interested in a twofold character in the faithful discharge of his duty. At present it frequently happens that he has no property in the ship The law of some countries requires a previous examination of the person to be appointed to this important office, in order to ascertain his nautical experience and skill; in other countries he is liable to be punished as a criminal if, having undertaken the charge, he is found incompetent to the performance of it. In this country the owners are left to their own discretion, as to the skill and honesty of the master; and, although he is bound to make good any damage that may happen to the ship or cargo by his negligence or unskilfulness if he is of ability to do so, yet he cannot be punished as a criminal for mere incompetence.-- Abbott.
NUMBER OF SAILORS. In the year 1853, 190,000 sailors left the ports of this kingdom, being the greatest number that ever sailed from any country in the world.- Mr. Cardwell-House of Commons, Feb. 3, 1845.
ADMIRALTY COURT, FRIDAY, MARCH 17, 1854.
(Before Dr. LUSHINGTON.)
Dr. LUSHINGTON delivered judgment in this case. The suit, he said, was brought by three seamen for subtraction of wages; there was no substantial difference in their cases. In June, 1852, they entered into articles, while the ship was at Birkenhead, to proceed on a voyage to Geelong, and afterwards to any ports in the China or Indian seas, and back to England. The vessel arrived at Geelong on the 4th of October, and about that time the master offered the crew either to pay them off in Geelong, and ship them again at the rate of wages usual at the port at that time, or to go with him to the diggings. An agreement was at last entered into by which it was settled that the expenses should be paid on behalf of the ship; that one-third of the gold should be appropriated for the benefit of the ship, and the rest shared among them, according to a fixed scale. It was also agreed that the wages should be stopped during the absence of the crew from the ship. Nearly half the crew refused to return, and the master offered to those who did return that if they would consent to navigate the vessel to Bombay he would divide among them the money due to those who had deserted, and he paid them the amount. A seaman for the run from Geelong to Bombay could not then be got for less than 401. The ship, having completed her voyage, arrived at Liverpool on the 11th of September, 1853 ; the men claimed their wages, and the owners claimed to deduct two months and twenty-eight days at the diggings, and also the sum of_81. 108., the amount due to each as the proportion of the forfeited wages. The mariners assented to the account, with the exception of the 81. 108. This was not a suit to recover any amount stipulated to be paid, but the question was, whether an amount actually paid in addition to wages could be the subject of deduction. So far as the evidence extended, this was a voluntary offer on the part of the master, in consideration of the crew undertaking to navigate the vessel to Bombay without additional seamen--a proceeding which manifestly entailed extraordinary labour on them, and was productive of great saving to the owners. The court, however, strongly inclined to the opinion that, if this were a contract for any reward beyond the wages stipulated for in the mariners' contract, it would, whether made compulsorily or voluntarily, be illegal. He did not wish it to be inferred that mariners, having completed the voyage outwards, were compellable to make the return voyage when the number of the crew was so small that risk of life might be incurred. If this were a contract made during the voyage, it would be void for want of consideration, according to the expression of Lord Ellenborough in “Still v. Meyrick” (2 Campbell). He (Dr. Lushington) was of opinion that the payment made by the master was illegal, and that the money might be recovered by the owners by action. If the owners could recover by action, there was no reason why the court should not allow the deduction. He certainly would not give the owners the costs. It was an extreme hardship on the mariners that they had navigated the vessel for three or four months with half the original crew, and were to receive uo ad. ditional remuneration.
COURT OF QUEEN'S BENCH, WESTMINSTER, APRIL 24, 1854. (Sittings in Banco, before Lord CAMPBELL and Justices WIGHTMAN, ERLE, and
HARRIS V. CARTER,
Mr. MILLWARD moved for a rule to show cause why the nonguit which had been entered in this case should not be set aside, and the verdict entered for the plaintiff. The plaintiff, who was an able seaman, in the month of November, 1852, shipped on board a vessel bound for Melbourne, and by his articles he was bound to go thence to China, and so back to England. The crew consisted of twenty-eight hands, in addition to twelve supernumeraries. When the vessel arrived at Melbourne the temptation of the diggings"
began to operate, and several of the crew deserted. Difficulties arose in getting 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 6l. 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 Mel. bourne; 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 consequences would follow to the commerce of this country if such agreements as the present could be enforced.
The other judges concurred.
CHARTER PARTY. 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 mere 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 mer. chant or his agent. In a foreign port it must, of necessity, if it be by deed under scal, 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 Vice-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, 5l. per cent, on all “charters ” effected, or for loading the ship on the berth, and 21. 10s. 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—" Wher. ever 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, as 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 1,5001. 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 130l. 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 dig. putes 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 sbip, 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 agree