Alexander v Simms
| Jurisdiction | England & Wales |
| Judgment Date | 12 March 1855 |
| Date | 12 March 1855 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 791
BEFORE THE LORDS JUSTICES.
S. C. 18 Beav. 80; 23 L. J. Ch. 721; 2 W. R. 329. For subsequent proceedings, see 20 Beav. 123. See The Harriett, 1868, 18 L. T. 805; Japps v. Campbell, 1887, 57 L. J. Q. B. 81.
[57] alexander v. simms. Before the Lords Justices. March 2, 5, 1854. [S. C. 18 Beav. 80; 23 L. J. Ch. 721 ; 2 W. E. 329. For subsequent proceedings, see 20 Beav. 123. See The Harriett, 1868, 18 L. T. 805; Japps v. Campbell, 1887, 57 L. J. Q. B. 81.] A part owner of a ship, whose share was subject to a mortgage, agreed with the other part-owner (whose share was not subject to any mortgage), but without the concurrence of the mortgagee, to purchase guano on the joint account of the two part-owners, and bring it in the ship to England. On the completion of the voyage, and when the cargo was about to be discharged, the mortgagee took possession. Held, that he had no claim against the owner of the unmortgaged share for freight, and could, at the utmost, only claim to adopt the mortgagor's contract, and to stand in his place as to the profits of the adventure, after deducting all expenses. This was an appeal from the decision of the Master of the Kolls, reported in the 18th Volume of Mr. Beavan's Reports, page 80. The facts were shortly these :- The Plaintiff, Mr. Alexander, was the owner of 8-64th parts of the ship Norman, and the Defendant, Simms, of the remaining 56-64th parts. In October 1850, Simms mortgaged his 56-64ths to Taylor (another Defendant), but remained in possession; and afterwards, in August 1851, engaged with the Plaintiff in an adventure for the purchase of guano in Patagonia, at their joint risk. The ship, laden with the uano, reached the Albert Dock, Liverpool, on the 10th of July 1852, whereupon the mortgagee gave notice to the dock company not to part with the cargo. Similar notices were given by the Plaintiff and Simms. The bill was filed by Alexander against Simms, a Defendant named Ernest who claimed under him, the mort-[58]-gagee, the captain (who claimed a lieu of the cargo), and the Dock Company. The prayer was that the guano might be sold, and that the residue of the proceeds, after paying the expenses of the voyage, might be divided between the Plaintiff and Mr. Ernest, as the assignee of Mr. Simms, in the proportions to their respective shares in the vessel; or, in the alternative, that if the Court should be of opinion that the Plaintiff was not entitled to a share of the cargo, but only to a share of freight, then that the amount of freight might be ascertained, the expenses of the voyage paid thereout, and the residue divided between the Plaintiff, Mr. Ernest, and Mr. Taylor, according to their respective interests in the ship. The Master of the Rolls held, that the proceeds of the cargo ought to be first applied in payment of the expenses of the outfit of the ship, for the purpose of her voyage to Patagonia and back, and of her voyage, and directed an account to be taken of what was due, and to whom in respect of such outfit and voyage, and declared that subject thereto the Plaintiff was entitled to one-eighth of the nett proceeds of the cargo, and that Mr. Taylor, as mortgagee, was entitled to seven-eighths. From this decision the mortgagee appealed. 792 ALEXANDER V. SIMMS B DE 0. M. te Q. 59. Mr. Eoupell, Mr. Wilde, and Mr. Bevir, for the Appellant. The 7-8th shares belonged to the mortgagee, and the mortgagor had no power to enter into a contract respecting them, which would affect the mortgagee. The mortgagee took possession before the delivery of the goods, and therefore before the transit could be considered as completed; Hyde v. Trent and Mersey Navigation Company (5 T. It. 389); Gatliffe v. Bourne (4 Bing! N. C. 314). The Plaintiff's cargo had been carried in a ship which, as to [59] 7-8ths, was the mortgagee's ship, and the mortgagee, having taken possession before the delivery of the cargo, was entitled to his proportion of a reasonable freight for the use of the ship. For the freight is incident to the property in the ship, independently of express contract; Mmrison v. Parsons (2 Taunt. 407). As there was no contract here to control or affect the mortgagee's right to freight, the amount which he was entitled to receive in respect of it could not be subject to be diminished by reason of any expenses or losses incurred in an adventure in which he had never engaged. He was entitled to be paid for the use of his shares of the ship irrespectively of any such expenses or losses. The moment a mortgagee takes possession of a ship he may do what he pleases with her. The Plaintiff had no title as against the mortgagee to have the vessel employed in discharging the cargo. [THE lord justice turner. Is there any title to freight in the absence of contract 1 ] The law raises an implied assumpsit. Thus an underwriter, who takes an abandoned ship and brings the cargo ashore, is entitled to the whole freight, although no contract has been entered into with him. He is entitled to it, not by express contract, but by reason of his property in the ship upon the abandonment; Case v. Davidson (3 Mau. & Sel. 79-82). There Lord Ellenborough said, " The underwriter, indeed, does not become privy, by virtue of such abandonment, to any existing charter-party, nor perhaps to any contract of affreightment before made with the owner ; but I think that by the abandonment he acquires possession of the thing from the use of which freight is to be earned." Another instance is the case of a capture, where the captor is entitled to freight, although, of course, not by virtue of any express [60] contract; Case of The Fortuna (4 Rob. Adm. Eep. 278); Case of The {'row Anna Catharina (6 Rob. 269); Luke v. Lyde (2 Burr. 882). A proportion of the freight belongs to the part-owner, independently of express contract. In Curling v. Long (1 Bos. & Pul. 634-637), Chief Justice Eyre says, "By the marine law, indeed, parties may recover pro raid, if the voyage be interrupted. And by the common law, where a contract cannot be performed, such a meritorious consideration may arise as will sometimes entitle a party to recover, in the form of an action of assumpsit, for work and labour, even after the contract has been broken. Such is the case where a ship, after capture and recapture, completes her voyage ; for there the shipper has his goods with the advantage of carriage, and upon that, though the original contract be gone, a meritorious consideration arises which entitles the master to a recompence ; not, however, on the foot of the old...
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