Daniel Brown v Andrew Ewing Byrne
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1854 |
| Date | 28 May 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1304
IN THE QUEEN'S BENCH
S.C. 2 C.L.R. 1599; 23 L.J.Q.B. 313; 18 Jur. 700; 2 W.R. 471. Explained, Hall v. Janson, 1855, 4 El. & Bl. 510. Referred to, Humfrey v. Dale, 1857-58, 7 El. & Bl. 277; El. Bl. & El. 1004. Principle applied, Lucas v. Bristow, 1858, El. Bl. & El. 913. Discussed, Mahalen v. Dublin and Chapelizod Distillery Company, 1877, Ir. R. 11 C.L. 90.
[703] casks argued anet detkrmtn^d in the queen's bench, in trinity term, XVII. victoria. The Judges who usually sat in Bane in this Term were: Lord Campbell C.J., Coleridge J., Erie J., Crompton J. daniel brown against andrew ewing byrne. Friday, May 28th, 1854. A bill of lading expressed that goods, shipped at N., were deliverable at L., to order or assigns, " he or they paying freight for the said goods five eighths of a penny sterling per pound, with five per cent, primage, and average accustomed." By the usual custom, in the trade at L., three months' interest or discount is deducted from freights, payable under bills of lading, on goods coming from certain ports, including N. The assignee of this bill of lading having received the goods, the shipowner claimed the freight without any deduction, contending that the custom was not binding in law as contradicting the written contract. The assignee paid (c) As to the question, at how early a stage prohibition to a county court, may be applied for, see Sewell v. Jones, 1 L. M. & P. 525. SBL.&BL.TM. BROWN V. BYRNE 1305 the freight, less the discount. Of a case stating the above facts,-Held, that the custom was binding, and controuled tha bill of lading. [S. C. 2 C. L. K. 1599 ; 23 L. J. Q. B. 313 ; 18 Jur. 700; 2 W. E. 471. Explained, Hall v. Jansn, 1855, 4 El. & Bl. 510. Referred to, Humfrey v. Dale, 1857-58, 7 El. & Bl. 277 ; El. Bl. &E1. 1004. Principle applied, Lucas v. Bristow, 1858, EL Bl. & El. 913. Discuased, Mahalen v. Dublin and Cha/pelizod Distillery Gmnpany, 1877, Ir. R. 11 C. L. 90.] A writ having been iaaued in this case, the parties, without pleadings, by consent and the order of a Judge, stated for the opinion of this Court the following case. [704] The plaintiff is a ship owner in Liverpool. The defendant is a merchant there, carrying on business under the firm of A. E. Byrne & Co. On the 5th October 1853, Messrs. J. B. Byrne & Co., of New Orleans, shipped on board the ship "Courier," a vessel belonging to the plaintiff, 110 bales of cotton, for which the master signed a bill of lading, of which the following is a copy. "Shipped in good order and well conditioned, by J. B. Byrne & Co., on board the ship called the 'Courier,' whereof Gemmill is master, now lying at the port of New Orleans, and bound for Liverpool, to say, one hundred and ten bales cotton, being marked and numbered as in the margin, and are to be delivered iu the like order and condition at the aforesaid port of Liverpool (the dangers of the sea only excepted) unto order or to assigns, he or they paying freight for the said goods five eights of a penny sterling per pound, with 5 per cent, primage, and average accustomed. In witness whereof the master or purser of the said vessel hath affirmed to four bills of lading, all of this tenor and date; one of which being accomplished the others to stand void. Dated in New Orleans, the 5th day of October 1853. " john gemmill." This bill of lading was forwarded to the defendant, indorsed to him. On the arrival of the vessel at Liverpool, in February last, the defendant claimed and received the 110 bales of cotton, as indorsee and holder of the said bill of lading. On the cargo being delivered, the following debit note was rendered to the defendant for the freight. " Messrs. A. E. Byrne & Co. To owners of The ' Courier.' Dr. For freight per said vessel from New Orleans on 110 Bales Cotton weighing 53,209 Ibs. @ 5/8 . . . 138 11 3 Primage 51. per cent. . . . . . 6187 145 9 10" [705] The defendant has offered to pay 1431. 13s. 7d. on account of this freight: but he refuses to pay the balance 11. 16s. 3d., on the ground that, by the custom of Liverpool, he ia entitled to a deduction of three months' discount from the freight. It is admitted that, according to the usual custom prevailing amongst merchants and ship owners iu Liverpool, three months' interest or discount ia deducted from freights payable under bills of lading, on goods coming from certain ports in the Southern states of America, viz. New Orleans, Mobile, Charleston and Savannah, whether such freights are paid by the shippers, the consignees named in the bill of lading, or by the assignees of the bill of lading. The custom does not entitle the merchant to three months or any credit for freights, which are always due on delivery ; iior does it extend to the Northern American ports, or to Apalachicola in the South; freights from those ports being always payable in cash without any deduction. The plaintiff contends that the custom is not good in law, being inconsistent with the written document. The Court is to be at liberty to draw any inference of fact which a jury might draw. The questions for the Court are: Whether the custom to deduct three months' discount from freights is good in law; and Whether the plaintiff is, under the circumstances of the case, entitled to recover the said sum of 11. 16s. 3d. from the defendant. 1306 BROWN f. BYRNE 3 BL. & BL. 706. The case was argued in Easter Vacation (a). Mellish, for the...
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