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tonnage, as described in the charterparty, was not a performance of this covenant (9).
4. It was agreed that the plaintiff's ship should load at St. Petersburg a complete cargo of hemp and iron, and that it should be delivered in London on payment of freight: for hemp, 5l. per ton; for iron, 58. per ton, &c. Held, that the plaintiff could recover freight for short cargo, at the stipulated rates per ton (r).
5. By charterparty the master of a ship agreed to carry timber from Riga to Portsmouth at 31. 58. per load, and after receiving the cargo to sail with the first favourable wind to Portsmouth. The ship quite unnecessarily entered the harbour of Copenhagen, where she was detained several months. Held, that the deviation did not take away the right to freight (s).
6. The charterer of a ship agreed to pay 2001. per month for six months certain, and so in proportion for any longer time he employed her. The owner agreed to keep her in repair. During the voyage certain repairs were necessary, which occupied twenty-eight days. Held, that the charterer could not deduct the twenty-eight days from the period for which he was to pay freight (t).
§ 76. When con- If there is no charter-party, and the consignee has signee or in according to the bill of lading to pay freight, the shipper for freight. will not be liable to pay it (u). However, he would, even
in this instance, be liable, if by the terms of the bill of lading the goods are consigned on the account of, and at the risk of, the shipper (x).
An obligation will be implied on the part of a consignee, named in a bill of lading, to take delivery in a reasonable time, in the absence of any custom of the port of discharge as to unloading ships and of any contrary stipulation in the charter (y).
(2) Hunter v. Fry, 2 B. & Ald. 421.
(r) Ritchie v. Atkinson, 10 East, 295.
(8) Bornmann v. Tooke, 1 Camp. 376.
(1) Ripley v. Scaife, 5 B. & C. 167.
(u) Drew v. Bird, Moo. & Mal. 156.
(x) Dommett v. Beckford, 2 Nev. & Man. 374; see “Cases" (1) at end of this $; Shepard v. De Bernales, 13 East, 565.
(y) Fowler v. Knoop, 4 Q. B. D. 299 (C. A.).
The shipowner may sue the consignee, or even the indorsee of a bill of lading, if the latter obtained the goods in pursuance of a bill of lading imposing the payment of freight or demurrage on him (ə). But the consignee or indorsee cannot be sued, if it appears on the face of the bill of lading that he was a mere agent (a).
The mere acceptance of the goods by the consignee or indorsee is not, per se, sufficient to impose the payment of freight and demurrage and other charges on him in respect of them (b). The mere acceptance will, however, make him liable for such freight or other charges, if he had been in the habit of receiving goods in this manner and of paying freight for them (6).
Where there is no bill of lading, the consignee will not generally be liable for freight; unless he has on prior occasions and under similar circumstances paid freight to the shipowner (c).
Though the goods be deliverable to the consignee or indorsee of the bill of lading on the payment of the freight, the shipmaster is not bound to insist on his paying. The consignor, provided he has executed a charterparty, but not otherwise (d), will remain liable for the freight, even in cases where the goods have been actually delivered to the consignee or indorsee without the freight being paid (e). But where the shipmaster, instead of taking cash from the consignee or indorsee, voluntarily elects to take a bill of exchange when he had the offer of a cash payment, the consignor cannot be sued on its dishonour (). If the master were not offered payment in cash, the consignor
(z) Renteria v. Ruding, Moo. & M. & W. 502; Tobin v. Crawford, Mal. 511; Wegener v. Smith, 15 C. 9 M. & W. 716; Young v. Moeller, B. 285; see “Cases” (2) at end of 5 E. & B. 755. this $; Weguelin v. Cellier, L. R., (c) Coleman v. Lambert, 5 M. & W. 6 H. L. Ca. 286.
502. (a) Amos v. Temperley, 8 M. & W. (d) Ante, p. 124. 798.
(e) Shepard v. De Bernales, 13 (6) Wilson v. Kymer, 1 M. & S. East, 565. 157; see “Cases” (3) at end of (f) Marsh v. Pedder, 4 Camp. 257;
Coleman V. Lambert, 5 Anderson v. Hillies, 12 C. B. 499.
this $ ;
can still be sued on the dishonour of the bill of exchange (f).
CASES. 1. Rum and sugar were by bill of lading consigned on account and risk of W. B.” to P. & Co., or their assigns, they paying freight. On the arrival of the ship in the West India Docks, the goods were delivered to and sold by P. & Co. Soon afterwards P. & Co. became bankrupts. Held, the shipowners could sue the consignor for the freight (9).
2. By charterparty a cargo of timber was to be delivered at Sunderland, on a certain measurement freight being paid ; and in case of detention, the shipowner was to be paid 5l. for every proveable lay-day. The bill of lading for the whole cargo was indorsed to a merchant at Sunderland. By it the timber was made deliverable to order "against payment of the agreed freight and other conditions as per charterparty.” The indorsee received the timber under the bill of lading. Held, that he was liable for demurrage (h).
3. The consignees of a West India cargo, deliverable by bill of lading to them or to their assigns, he or they paying freight, indorsed the bill of lading to their brokers to cover advances. The cargo was, on its arrival, landed in the names of the consignees, but was entered at the customs' house by the brokers in their own names. Afterwards the brokers obtained delivery from the docks under an order from the consignees, and not under the bill of lading. Held, that this was sufficient to make the brokers liable for the freight, they having been in the habit of receiving goods in this manner and of paying freight on them (i).
4. A. shipped goods to B., and engaged to pay the freight. The shipmaster, on delivering them, took a bill of exchange from B. drawn on A., but it was dishonoured. Held, A. was liable to pay the freight, notwithstanding the bill of exchange (1).
$77. If a neutral ship, laden with the goods of one of two belligerent powers, be captured by the other, the ship must be restored, provided the goods might legally be carried by a neutral ship (k). Formerly the goods were confiscated,
Capturefreight when due after,
(f) Tapley v. Martens, 8 T. R. 451; see “Cases" (4) at end of
(i) Wilson v. Kymer, 1 M. & S. 157.
(j) Tapley v. Martens, 8 T. R. 451.
(k) The Copenhagen, 1 Rob. 289.
(9) Dommett v. Beckford, 2 Nev. & Man. 374.
(h) Wegener v. Smith, 15 C. B. 285.
the captor paying the entire freight; but they will now go free, unless contraband (1).
When a hostile ship is captured with the goods of a neutral on board, the captor will only be entitled to freight on them, if he convey them to their destination (m). However, under very special circumstances, a captor, who carried goods not to their actual port of destination, but to his own country, was allowed freight (n).
CASE. The captors of a hostile ship carried the cargo of corn, which belonged to a neutral, to Lisbon, its port of destination. There the consignee was put in possession of the corn by the Portuguese government. The captors were held to be entitled to freight(o).
$ 78. Freight pro ratâ itineris (for a proportionate part of the Freight pro
rata itineris. voyage only), not being due under the charterparty, cannot be claimed by the shipowners, in the absence of a new contract, express or implied, to pay it (P). Such a new contract will be implied, if a ship be disabled during the voyage, and the owners of the cargo voluntarily receive the goods at an intermediate port, under circumstances from which it may be reasonably inferred that they intended to dispense with their further carriage. Then, and then only, will the owners of the goods be liable to pay freight pro ratâ itineris (a). Even though the goods were damaged on board, and were therefore landed and sold at
(1) By Art. II. of Declaration of Paris, 1856. “Free ships, free goods," is now the rule as regards all countries, except the United States. As to the former rules, see The Josephine, 4 Rob. 25; The Mariana, 6 Rob. 24; The Ida, 1 Spks. 331.
(m) The Fortuna, 4 Rob. 278; The Diana, 5 Rob. 67; The Vrow Anna Catharina, 6 Rob. 269.
(n) The Diana, 5 Rob. 67.
(P) Metcalfe v. The Britannia Ironworks Co., 2 Q. B. D. 423;
“ Cases" (1) at end of this į; Luke v. Lyde, 2 Burr. 883, 889; Cook v. Jennings, 7 T. R. 381;
“ Cases" (2) at end of this § ; Liddard v. Lopes, 10 East, 526; The Vrow Anna Catharina, 6 Rob. 269, 271; see “Cases'' at end of this g.
(9) Malyne, ch. 21 ; The Copenhagen, 1 Rob. 289; The Patria, 3 L. R., A. & E. 436; Christy v. Row, 1 Taunt. 300; see “ Cases” (3) at end of this g.
an intermediate port, the shipowners cannot claim freight pro ratâ itineris, unless the consent of the owners of the goods had been obtained to the sale (r).
Freight pro ratâ itineris will not be payable, if no such voluntary acceptance and intention existed; even if the master sold the cargo, with the object of preventing its loss through the perils of the sea, the shipowners cannot claim freight pro ratâ itineris.
Again, freight pro ratâ itineris can only be claimed where the goods were actually carried by the shipowners as far as they were carried (s). Of course, if the contract of affreightment is not for one entire voyage, but for several, then there will be in law a distinct contract as to each. Therefore, on the completion of each separate voyage, the freight contracted for in respect thereof will be due. It will not be a question of freight pro ratâ itineris.
CASES. 1. Railway bars were shipped under a charterparty from England to Taganrog, or so near thereto as the ship could safely get, freight to be paid in London against certificate of right delivery of the bars. The vessel could not get nearer to Taganrog than Kertch, and the captain, finding the sea blocked with ice till the spring, discharged the bars there, though against the wish of the charterer's agent. By the bill of lading the cargo was deliverable at Taganrog to a Russian railway company, “freight and other conditions as per charterparty.” No bill of lading being produced at Kertch, the bars were put in charge of the custom officers, who delivered them to the railway company, along with the charterparty and bill of lading. The railway company acknowledged receiving the bars under the charterparty and bill of lading. Held, that the owner was neither entitled to full freight, the delivery at Kertch not being within the charterparty, nor to freight pro ratâ, no new contract for such having been made (t).
2. Under a charterparty the defendant covenanted to pay a certain freight for “goods delivered at Liverpool.” The ship was wrecked at B. before arriving at Liverpool. The defendant
(r) Acatos v. Burns, 3 Ex. D. 282 (C. A.); Hopper v. Burness, 1 C. P. D. 137; see “Cases" (4) at end of this g.
(8) Mitchell v. Darthez, 2 Bing. N. C. 555.
(t) Metcalfe v. The Britannia Ironworks Co., 1 Q. B. D. 613; 2 Q. B. D. 423.