Cockburn v Alexander
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1848 |
| Date | 06 December 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1459
IN THE COURT OF COMMON PLEAS
S. C. 18 L. J. C. P. 74; 13 Jur. 13. Adopted, Deverill v. Burnell, 1873, L. R. 8 C. P. 480. Referred to, M'Ilquham v. Taylor, [1895] 1 Ch. 58.
[791] COCKBURN AND ANOTHER V. ALEXANDER. Dec. 6, 1848. [S. C. 18 L. J. C. P. 74; 13 Jur. 13. Adopted, Deo&rill v. Surnell, 1873, L. R. 8 C. P. 480. Referred to, M'llquham v. Taylor, [1895] 1 Ch. 58.] A ship was chartered to proceed to Port Phillip, and there load from the freighter's factors " a full and complete cargo of wool, tallow, bark, or other legal merchandise," -the quantity of bark not to exceed 100 tons, and the quantity of tallow and hides not to exceed 80 tons,-and was to proceed therewith to London, and deliver the same, "on being paid freight as follows-for wool, IJd. per Ib. pressed, arid l|d. and one eighth of a penny per Ib. impressed, gross weight; tallow, 31. per ton; bark, 41. per ton; and hides, 21. per ton-the latter not to exceed 20 tons, without consent of the captain, &c. ; one third of the freight to be paid in cash, on unloading and right delivery of the cargo, and the remainder in cash, or by approved bills, at two months following:"-Held, that the freighter was entitled to load the ship with an assorted cargo of any " legal merchandise;" but that the owners were entitled to be paid freight upon the supposition that the loading consisted of the stipulated quantities of the enumerated goods, viz. 100 tons of bark, 60 tons of tallow, and 20 tons of hides, and the residue of wool, pressed or unpressed.-Held (a) No point arose in respect of Gibraltar being a possession of the British crown. It is stated in the declaration to be in Spain. No doubt, it is, like Portugal, in the Spanish peninsula: besides which, the Kings of Spain style themselves Kings of Gibraltar, as the Moorish kingdom of Gibraltar continues, nominally, to form part of what is called " the crown of Castile, which Portugal, Arragon, and Navarre, notwithstanding the more or less personal union, never did. 1460 COCKBTTBN W.ALEXANDER 6 C. B. 792. also, that parol evidence was not admissible to shew, that, by the custom of the place of loading, the cost of pressing wool was to be borne by the shipowner. This was an action of assumpsit on a memorandum of charter. The declaration stated that, theretofore, to wit, on the 8th of August, 1844, by a certain charterparty of affreightment in writing then made by and between the plaintiffs (by the plaintiff James Cockburn, as the managing owner of the ship "Parkfield," of 496 tons burthen, or thereabouts, whereof the plaintiff, J. T. Whiteside, was master, then lying in the St. Katherine's Dock, for and on behalf of the plaintiffs) and the defendant, in manner following, that is to say, that the said ship, being tight, staunch, and strong, and every way fitted for the voyage, should, with all convenient speed, having liberty to take out cargo for the ship's benefit for the Cape and Port Phillip, sail and proceed to Hobson's Bay, Port Phillip, or as near thereunto as she might safely get, and there load from the factors of the said defendant a full and complete cargo of wool, tallow, bark, or other legal merchandise (the quantity of bark not [792] to exceed fifty tons (a), for broken stowage, without the consent of the master, and the quantity of tallow arid hides not to exceed eighty tons), not exceeding what she could reasonably stow and carry over and above her tackle, apparel, provisions, and furniture : and, being so loaded, should proceed therewith to London, to any dock the defendant might appoint, or as near thereunto as she might safely get, and deliver the same, on being paid freight as follows,-for wool, l|d. per Ib. pressed, and IJd. and one-eighth of a penny per Ib. unpressed, gross weight; tallow, 31. per ton of 20 cwt.; bark, 41. per ton of 20 cwt.; and hides, 21. per ton of 20 cwt., all gross, the latter not to exceed twenty tons, without consent of the captain,-in full of all port-charges and pilotage as customary (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigations of whatever nature and kind soever, during the said voyage, always excepted); one-third of the freight to be paid in cash on unloading and right delivery of the cargo, and the remainder in cash, or by approved bills, at two months following: and it was thereby then further agreed by and between the said parties, that ninety working days at Port Phillip should be allowed the defendant (if the ship should not be sooner despatched) for loading, and two days on demurrage over and above the said laying days, at 101. per day; and that the penalty for non-performance of the said agreement should be 30001. ; that the ship should be reported at the Custom-House London, by certain brokers therein mentioned, to wit, &c.; that the ship should be addressed to the defendant's agents at Port Phillip, therein described as, to wit, Messrs. W. H. Barnes & Co.; that the cargo should be brought alongside the vessel at the defendant's risk and expense, and [793] stowed and discharged according to the custom of the port; that the captain should sign bills of lading at any rate of freight, without prejudice to the charter-party ; that, in the event of the defendant's agents not having sufficient wool, they should be at liberty to load one hundred tons of bark in lieu of fifty tons, upon paying an additional 10s. per ton for the whole: and it was then thereby further agreed, that the vessel should not sail from London later than the 30th of September then next following, to wit, the 30th of September, 1844; that the defendant should not be at liberty to ship merchandise in the cabins, without permission from the captain; and that the said ship should not be detained at the Cape longer than ten days, wind and weather permitting. The declaration then proceeded to allege mutual promises ; and averred, that the said ship, within a reasonable time after the making of the said charterparty, and not later than the said 30th of September, 1844, to wit, on the 1st of September, 1844, being then tight, staunch, and strong, and every way fitted for the said voyage in the said charterparty mentioned, according to the true intent and meaning thereof, with all convenient speed, sailed and proceeded to, and arrived at, Hobson's Bay, Port Phillip aforesaid, and was not detained at the Cape of Good Hope longer than ten days; that the plaintiffs were then and there, to wit, at Hobson's Bay, Port Phillip aforesaid, ready and willing, and offered, to load and receive and take on board the said ship there, to wit, at Hobson's Bay, Port Philip aforesaid, a cargo of wool, tallow, bark, and other legal merchandise, of the several kinds and in the proportions in and by the said charterparty mentioned and intended, according to the tenor and effect, and true intent and meaning thereof, and of the said promise (a) Afterwards by agreement increased to one hundred tons. 6 C.B.794. COCKBURN V. ALEXANDER 1461 and undertaking of the said plaintiffs in that behalf, not exceeding what the said ship could reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; [794] that, because the agents and factors of the defendant had not sufficient wool within the true intent and meaning of the said charterparty, the plaintiffs were then and there ready and willing, and offered, to load, receive, and take on board the said ship, one hundred tons of bark in lieu of fifty tons of bark, according to the tenor and effect, true intent and meaning of the said charterparty, and of their promise in that behalf; that the plaintiffs were then ready and willing to allow, and then allowed, ninety working days, at Port Phillip aforesaid, for loading, and were then ready and willing to allow ten days on demurrage, over and above the said laying days, upon the terms and according to the true intent and meaning of the said charterparty; that the captain of the said ship, to wit, the said J. T. Whiteside, was then ready and willing, and then offered, to sign bills of lading at any rate of freight,- of all which said premises the defendant and his said agents and factors, to wit, Messrs. W. H. Barnes & Co., then had notice; that, although the plaintiffs had always performed all things in the said charterparty mentioned on their part to be performed, yet the defendant, not regarding his said promise, did not nor would, nor would his said agents and factors, to wit, Messrs. W. H. Barnes & Co., or any other person or persons on his behalf, load the said vessel with a cargo of wool, tallow, bark, or other legal merchandise, at Hobson's Bay, Port Phillip, according to the tenor and effect, true intent and meaning of the said charterparty, and the said promise and undertaking of the said defendant in that behalf, but wholly failed and made default therein. The second count stated that the defendant was indebted to the plaintiffs in 50001. for freight payable by the defendant to the plaintiffs in respect of the conveyance by them for the defendant, at his request, of divers goods and chattels in and on board of. certain ships and vessels from divers places to divers other [795] places, and the loading and unloading and delivery thereof for the defendant, at his request. The declaration also contained counts for money paid, and for money found due upon an account stated. Plea, that the plaintiffs ought not further to maintain their action, because the defendant brings into court the sum of one shilling ready to be paid to the plaintiffs, and the plaintiffs have not sustained damages to a greater amount than the said sum of one shilling, in respect of the causes of action in the declaration mentioned. Replication, that the plaintiffs have sustained greater damages than the said sum of one shilling, in respect of the causes of action in the...
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