Charles Smith v Edward Sieveking and Gustavus Adolphus Sieveking
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1855 |
| Date | 13 November 1855 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 352
Queen's Bench Division
See S. C. affirmed in Exchequer Chamber, 5 El. & Bl. 589.
352 SMITH V. SIEcTEKINU 4 EL & BL. a defence. But the thirteenth plea, though perhaps it would formerly not have been sustainable on special demurrer, substantially chews an answer, and is now sufficient. Judgment for plaintiff on the demurrer to the fifth, sixth, ninth and tenth pleas. For the defendant on the demurrer to the thirteenth plea. (945] CHARLES SMITH agailist EDWARD SIEVEKING AND GUSTAVUS ADOLPHUS SIEVEKING. Saturday, April 28th, 1855. Action by the master of the ship " D," for demurrage which defendant promised to pay in consideration of the delivery of the goods. Plea Never indebted. At the trial defendant had a verdict, subject to leave to enter a verdict for plaintiff on the following facts, the Court to draw inferences.Defendant was holder of a bill of lading for the entire cargo of the "D.," expressed to be shipped by M. at Memel, deliverable at L. unto defendant or assigns, " he or they paying for the said goods as per charter party, with primage and average accustomed." By the charter party the "D." was chartered to the shipper to load a cargo at Memel for L., providing lay days for loading at Memel and discharging at L., and stipulating demurrage, beyond the lay days, at either port. The charter party mentioned the rates of freight, and contained a stipulation that " for the payment of all freight and demurrage the captain shall have an absolute lien and charge on the said cargo." Demurrage was incurred at Memel. On the arrival of the " D." at L., defendant claimed the cargo under the bill of lading. The captain required payment of the demurrage. Defendant offered to pay the freight, but denied his liability to pay demurrage. Ultimately defendant received the cargo, without any express promise on his part to pay demurrage.Held that a promise to pay for the goods according to the stipulations in the bill of lading ought to be inferred from the receipt of the goods under it, even though preceded by a refusal to pay. But that in this case the terms of the bill of lading and charter party did not import that the person receiving the goods was to pay demurrage accrued at the outport, though the captain had a lien for it. And the rule was discharged. [See S. C. affirmed in Exchequer Chamber, 5 El. & 131. 589.] First count, in the usual form, for freight and demurrage. Second count, for freight and demurrage " which defendants promised plaintiff they would pay to him if he would cause and permit certain goods which had been conveyed it, his ship to be delivered to them." Pleas. As to the freight, payment into Court : which the plaintiff accepted itt full. As to the demurrage, Never indebted : issue thereon. On the trial, before Lord Campbell C.J., at the Westminster sittings after last Term, it appeared that the plaintiff was owner of the ship The "Donna," which itt the autumn of 1854 brought a cargo from Memel to London. The defendants were merchants at London, carrying on business under the firm of E. Sieveking & Son, They were holders of a bill of lading for the whole cargo of [946] The "Donna." This bill of lading expressed that the goods were shipped at Memel, by W. H. Muttray, to be delivered at London " unto Messrs. E. Sievekittg & Son or to assigns, he or they paying for the said goods as per charter party, with primage and average accristomed." The bill of lading was, as is common, partly written and partly printed. The printed part had, as the printed forms usually run, expressed that the goods were to be delivered "unto or to assigns, he or they paying freight for the said goods with primage and average accustomed." The printed word freight was struck out, and the blanks filled up in manuscript so as to snake the tenor of the instrument as above quoted. The charter party bore date at Memel, 10th August 1854. By it the master chartered The "Donna" to Muttray to take a cargo from Memel to London. The following stipulations of the charter party are material to the point discussed in bane. "The cargo is to be given in the harbour, free on board or free alongside of the said vessel as the case may be, in the customary manner, with all possible expedition ; and at her place of discharge to be taken by the said freighter, or the receiver, free from on board or free alongside as the case may he, in twelve working days: and, if the vessel be longer detained at either the place of loading or the place of discharging, the captain is to he paid, day by day as it shall grow due, 51. per day demurrage for 4 EL & SMITH V. SIEVESING 353 each and every day the vessel is detained over and above the said stipulated laying days, which count from the announcement of the ship being ready to take in or to deliver her cargo." "On proper true and faithful delivery of the cargo, agreeable to bills...
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