Dakin v Oxley
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1864 |
| Date | 01 February 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 938
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
33 L. J. C. P. 115; 10 L. T. 268; 10 Jur. N. S. 655; 12 W. R. 557. Referred to, Lloyd v. Guibert, 1865, L. R. I Q. B. 119. Adopted, Dakin v. Oxley, 1864, L. R. 5 P. C. 159. Applied, Asfar v. Blundell. [1895] 2 Q. B. 201; [1896] 1 Q. B. 132. Adopted, London Transport Company v. Trechmann, [1904] 1 K. B. 642. See Kish v. Taylor, [1912] A. C. 616.
[646] dakin v. oxley. Feb. 1st, 1804. [33 L. J. C. P. 115; 10 L. T. 208; 10 Jur. N. S. 655; 12 W. R. 557. Referred to, Lloyd v. Guibert, 1865, L. R. I Q. B. 119. Adopted, D/t/ciii v. Oxiey, 1804, L. K. 5 P. C. 159. Applied, Asfar v. Blunddl. [1895] 2 Q. B. 201 ; [18%'j I q. B. 132. Adopted, London Transport Company v. Trechmann, [1904] I K. B. 042. See Kiah v. Taylor, [1912] A. C. 616.] It is no answer to an action by a ship-owner against the charterer to recover freight that, by the fault of the master and crew, and their negligent and unskilful navigation of the vessel, the cargo (coal) was damaged so as upon arrival at the port of ' discharge to be then there of less value than the freight, and that the charterer abandoned it to the ship-owner. This was an action upon a charterparty. The first count of the declaration stated that, by a certain charterparty, in which the plaintiff was described as Captain (J-eorge 15 C. B. CN. S.JM7. DAKIN V. OXLEY 939 Dakin, of the British good ship or vessel called the " Contest," it was mutually agreed by and between the plaintiff and defendant, that the said ship, being tight, staunch, and strong, and every way fitted for the voyage, should without any delay sail and proceed to Newport, Monmouthshire, and there take on board in the usual and customary manner from the factors of the defendant a full and complete cargo of coals, which was to be brought to and taken from alongside at merchant's risk and expense, hot exceeding what she could reasonably stow and carry over and above her tackle, apparel, provisions, and furniture, including a sufficient supply of coals for ship's use during the voyage, which the plaintiff bound himself to take on board; and, being so loaded, should therewith proceed to Nassau, N. P., and there deliver the same on being paid freight at and after the rate of 22s. 6d. sterling per ton of 20 cwt. delivered, in full of all port-charges whatsoever, including trimming, customary dues, lights, and pilotage (the act of God, the Queen's enemies, fire, frosts, riots and strikes of pitmen, arid all and every other dangers and accidents of the seas, rivers, and navigation, mines, and works, of whatever nature or kind soever during the said voyage always excepted): The freight to be paid on the right and true delivery of the cargo, in cash at current rate of exchange, or approved bills on Ijondon at sixty days sight, less one half freight to be advanced on signing bills of lading, by acceptance at three months, [647] leas 5 per cent for all charges: Seven days is to be allowed the said merchants (if the ship is not sooner dispatched) for loading; and the ship to be discharged (weather permitting (at not less than thirty tons per running-day, Sundays excepted ; arid the defendant to have the option of keeping the ship for ten days on demurrage over and above the said laying-clays, at 51. per day : The said vessel to be addressed to the defendant's agent at the port of discharge, paying 2 per cent, commission on amount of freight: Averment, that the said ship sailed and proceeded to Newport aforesaid, and there took on board a full and complete cargo of coals according to and in pursuance of the said eharterparty, and, being so loaded, proceeded therewith to Nassau aforesaid, and all things had happened and been done, and all conditions precedent had been performed and fulfilled, and all times had elapsed, necessary to entitle the plaintiff to maintain this action for the breach of the eharterparty in this count complained of: Breach that, although a large amount of freight, to wit, 2531. 2s. 6d., waa due to the plaintiff according to the said eharterparty, the defendant had not paid to the plaintiff the said amount, or any part thereof, either in cash or in bills, according to the terms of the said eharterparty, but had wholly made default in so doing; There was also a count for freight of a certain cargo of coals, and a count for money found due upon accounts stated. Sixth plea, to the first and second counts, that the said cargo of coals in the said first count mentioned, and the said cargo of coals in the said second count mentioned, were and are one and the same cargo, and that the freight alleged to be due to the plaintiff according to the said charterparty as in the said first count mentioned, and the alleged freight for the con-[648]-veyance by the plaintiff of the said cargo of coals as in the said second count mentioned, were and are one and the same freight: that the said eargo of coals became by the fault of the master and mariners of the said vessel, and by reason of their negligence and uuskilfulness in the navigation and management of the said vessel on the aaid voyage, and not otherwise, so greatly damaged and deteriorated in condition during the said voyage, that, on the arrival of the said eargo of coals at the said port of discharge, the same had become and were then of less value there than the amount of the said freight; and that thereupon the defendant abandoned the said cargo of coals to the plaintiff, to wit, for the said freight, and was thereupon and thereby discharged from payment of the said freight. To this plea the plaintiff demurred, the ground of demurrer alleged in the margin being " that the facts stated in the sixth plea only give the defendant a right to a Cross-action;" Joinder. : Cohea, |a support of the demurrer (a). The plea is bad. If such a plea could in any event be good, it ought at least to shew that the damage caused to the cargo by the negligence of the master and crew equalled the amount claimed for freight. If (a) The point marked for argument on the part of the plaintiff was as follows :- "That the facts stated in the plea demurred to by the plaintiff do not constitute a valid defence to the action, but only give the defendant a right to a cross-action." 940 DAKiN V. OXLEY 15 C. B. (N. 3.) 6. the plea simply means that the plaintiff was not ready to deliver the cargo undamaged by the negligence of the master and crew, it is clearly bad : and if it means that the cargo was so deteriorated through such negligence as to have become of less value than the amount [649] of the freight, it would still be a bad plea ; and the addition of the allegation of abandonment makes no difference. This is not like a plea to an action for work and labour, that the work had through the negligence of the plaintiff become useless,-which is allowed in order to the avoidance of circuity of action : nor is it withiu the cases as to conditions precedent referred to in the notes to Cutter v. Powdl (6 T. R. 3:20), in 2 Smith's Leading Oases, 1. The law upon the subject is fully treated of in Abbott on Shipping, 8th edit., 427 et seq. (10th edit. 324 et seq.). "Upou this question, as to the right of the merchant to abandon his goods when brought to tie place of destination, and by so doing to discharge himself from the freight," says the learned author, " different doctrines and opinions have prevailed, and there is no judicial decision in our books ; although in some cases between the merchant and his insurer, it has been admitted that the freight was payable notwithstanding the goods were so much damaged that their value fell short of its amount. But it is necessary to distinguish the causes from which the deterioration may have proceeded. If it have proceeded from the fault of the master or mariners, the merchant is entitled to a compensation, and may recover it by an action at law against the owners or master : but, if he has received the goods, he cannot insist upon the damage as a defence to an action brought against himself for the freight, even although he has offered to return them. And in general the right and true delivery of goods upon which freight is made payable by the terms of a charterparty or bill of lading, means only a delivery of the entire quantity of chests or bales : if the goods have been damaged by the fault of the master or crew in the voyage the remei/y for the merchant who has received ihrnn is an action for the danuuje. On the other hand, [650] if the deterioration have proceeded from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of a ship, the merchant must bear the loss as well as pay the freight; for the master and owners are in no fault, nor does their contract contain any insurance or warranty against such an event. And to this point there is a direct authority in the treatise called the (riiidon. The author, having mentioned several oases of abandonment, as between the merchant and...
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