Dutton and Another against Powles
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1861 |
| Date | 25 January 1861 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 1037
IN THE COURT OF QUEEN'S BENCH, AND THE COURT OF EXCHEQUER CHAMBER
[174] button and another against powles. [Friday, January 25th], [1861].- Charter party. Duty of charterer. Bills of lading. Consular manifest.-Declaration stated that, by charter party between the plaintiffs (owners of the ship "P.") and the defendant (a merchant at Liverpool), it was agreed that the ship should receive on board from the defendant a cargo, and should proceed to C., &c., and there deliver it agreeably to bills of lading; that the defendant should deliver the cargo alongside, and receive it at tha port of discharge; that he should pay a lump sum for the hire of the vessel, &c.; and that the master should sign bills of lading. It then alleged that the defendant put up tha ship aa a general ship; that goods were shipped by him, and eight bills of lading were made out by the shippers and signed by the captain; that it was usual at Liverpool for the shippers of goods by vessels to make out for the captain a correct copy of each bill of lading; that the shippers made out copies of the eight bills of lading and delivered them to the defendant for the captain; that the defendant kept the captain's copies, and the plaintiffs had no copies, nor was it in their power to obtain copies except from the defendant; that it was necessary, aa the defendant well knew, for the purposes of the voyage, and to secure 1038 BUTTON V. POWLBS 2B.&8.175. the goods from being confiscated abroad, and to enable the plaintiffs to deliver them to the consignees, that a consular manifest should ,be made out in which an accurate account and description of the goods included in the eight billa of lading should be ^iven ; and that it waa necessary, as the defendant well knew, for the purpose of making out a. complete and accurate consular manifest, that the person employed to make it out should have all the bills of lading or copies thereof: that it was the duty of the defendant as charterer, and under the charter party, upon request of the owners of the vessel, to hand over the captain's copies of the bills of lading for the purpose of enabling a complete and accurate consular manifest to be made out; and that the defendant was required by the plaintiffs to hand over the copies to K., their agent at Liverpool: but the defendant negligently, improperly and carelessly only handed over to K. copies of six out of the eight bills of lading as and for the whole of the bills of lading relating to the goods; whereby and by reason of such negligence, improper conduct and carelessness, an incomplete and inaccurate consular manifest was made out. Special damage was averred. Held by the Court of Queen's Bench, and affirmed by the Exchequer Chamber, that the declaration was bad for not shewing that either by express contract or mercantile usage, or from circumstances, there was a duty on the defendant to hand over the copies of the bills of lading to the plaintiffs, [Affirmed in Exchequer Chamber, 2 B. & S. 191; 31 L. J. Q. B. 191; 6 L. T. 224; 8 Jur. N. S. 970; 10 W. E. 408.] The declaration stated that the plaintiffs were owners of a certain vessel, called The "Panuco," and the defendant was a merchant at Liverpool, trading under the name, style and firm of " A. W. Powles & Son " : and by a certain [175] charter party, made, to wit, on the 27th January, A.D. 1859, by and between the plaintiff's and the defendant, it was, amongst other things, agreed that the said vessel should be immediately made ready, and receive and take on board from the defendant a full and complete cargo of lawful merchandize and specie, including gunpowder if any in the river, and thereupon, on being dispatched, should proceed to Puerto Cabello "~ Cura joa, and there, or as near thereto as she could safely get, deliver the said cargo in the usual and customary manner agreeably to bills of lading, and so end the voyage. And it was thereby further agreed that the defendant should deliver alongside the cargo to be ladeu on board the said vessel, and should receive, or cause the same to be received, at her port of discharge in the usual and customary manner, and that he should and would pay for the use and hire of the said vessel, in respect of the said voyage, the lump sum of 1901. sterling, in full, and that payment should be made as follows, namely, &c. And it was thereby further agreed, that the defendant should have the option of naming the lumpers and stevedores who were to take in and stow the cargo, and that the ship should pay the lumpers 8d. per ton, and the defendant should pay the stevedore or stevedores for assisting to stow the cargo; but that the lumpers and stevedores should be under the direction of the master, and that the plaintiffs should be responsible for improper stowage. And it was thereby further agreed that the master should, at the defendant's request, sign bills of lading in the usual and customary manner-, and at any rate of freight that might be filled in and made payable, in any manner the defendant might choose, without prejudice to the said charter party, and that he should attend at the broker's office at least twice [176] each day after the loading should commence, for the purpose of signing auch bills of lading; and that the said vessel should be consigned to the defendant's agents at her port of discharge inwards, the plaintiffs being free of commission ; and that the cargo should be taken from alongside at the defendant's risk arid expence. The declaration then proceeded to allege, that after the making of the said charter party, and before, &c., the defendant put up the said vessel as a general ship ; and that a large quantity of goods were shipped by the defendant at Liverpool, on board the said ship "Panuco," for the voyage mentioned in the said charter party, and eight bills of lading were duly made out by the shippers of the said goods, and signed by the captain in respect of and relating to the said goods; that it was and is usual and customary at Liverpool for the shippers of goods by vessels to make out for the captain a correct copy of each bill of lading in respect of such goods, and that the shippers...
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