Erichsen and Others v Barkworth and Others
| Jurisdiction | England & Wales |
| Judgment Date | 02 December 1858 |
| Date | 02 December 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 608
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 27 L. J. Ex 472 reversed p. 894, post
[601] trinity vacation, 22 vict. erichsen and others v. barkworth and others. July 3, 1858.-The defendants, merchants at Hull, chartered the plaintiffs' ahip to sail to Buctouche and there load a cargo of timber and being so loaded to proceed to Gloucester and deliver the Same on being paid freight Thirty-five running days to be allowed for loading *nd discharging the cargo, and ten days on demurrage above the laying days at 51. per day. The ship ai rived at Buctouche, and the loading was completed at the expiration of twenty-seven of the running days. The master signed bills of 3 H. & X. 602. ERICHSEN V. BARKWOKTH 609 lading by which the cargo was deliverable " unto order or to assigns, he or they paying freight for the goods as per charter-party." The invoice of the cargo and bills of lading together with a bill drawn by the shipper on the defendants for the price of the cargo was presented to the defendants by the shipper's agent in London, but the defendants refused to accept the bill or receive the cargo, on the ground that the shipment was not according to the contract The defendants wrote to the shipper's agent and also to the master of the ship, offering to land the cargo and take care of it on their premises for whom it might concern. The shipper's agent gave notice to the master not to part with the cargo without production of the bill of lading The vessel was ready to discharge her cargo, according to the charter, on the 5th September. The lay days expired on the 13th September. The vessel might have been discharged in five days. The bill of lading was not produced to the master until the 22ud September, and the delivery was completed on the 30th. Held, that the defendants were not liable for demurrage or detention of the vessel. per Pollock, C. B, Martin, B, and Bramwell, B. Watson, B., dissentiente [S. C. 27 L J Ex 472 reversed p. 894, post] This was an action by the owners against the charterers of a vessel to recover 851. for demurrage and delaying the vessel at her port of discharge. By consent and order of a Judge the following case was stated for the opinion of this Court, without any pleadings:- The plaintiffs were the owners of a vessel called the "Skyeberg," and the defendants timber merchants at Hull, trading under the firm of Barkworth and Spaldin. On the 29th April, 1857, the defendants chartered the vessel upon the terms of a charter-party made in port between them and the plaintiffs, which (so far as material) was as follows:- " London, 29th April, 1857. "It is this day mutually igreed between Glover, Brothers, fur captain of the good ship or vessel called the 'Skyeberg' of the measuiement of 310 tons, &c , and Messrs Barkworth and Spaldin, of Hull, merchants : that the said ship being tight, staunch, &c., shall with all convenient speed, sail and proceed to Buctouche, and there load from the [602] factors of the said affreighters a full and complete cargo of deals and battens, &c.; and, being so loaded, shall therewith proceed to Gloucester and deliver the same, on being paid freight (Then followed provisions as to payment of freight, being in full of all port charges and pilotages.) (The act of God, the Queen's enemies, &c., axcepted ) The freight to be paid on unloading and right delivery of the cargo, one third in cash, and the remainder by approved bills at three months date. Thirty-five running days are to be allowed to the said merchant (if the ship is not sooner dispatched) for loading and discharging the said cargo, and ten days on demurrage above the said laying days at 51. per day." The defendants had, in the year 1856, contracted with Messrs. M'Phelim, of Buctouehe in New Brunswick, for the purchase of a quantity of wood goods, payment of which was to be made by the defendants' acceptance of their draft for the price, on presentation of the invoice and bill of lading, and the defendants directed the master to apply to Messrs. M'Phelim for a cargo. The vessel set sail according to the charter, and arrived at Buctouche on the 29th of June following, and on the 2nd of July was reported to Messrs. M'Phelim, at Buctouche, to be, and was, ready to take in her cargo, according to the charter. On the 4th of July the loading was commenced, and was completed at the expiiation of twenty-seven of the running days. On the receipt of the cargo, the master signed and delivered to Messrs. M'Phelim bills of lading, by which the cargo was to be delivered "unto order or to assigns, he or they paying freight for the said goods as per chartei-party, with average accustomed." The invoice of the cargo and bill of lading, together with the bill drawn by Messrs. M'Phelim on the defendants for [603] the price of the cargo, were presented to the defendants through the Bank of Biitish North America. The defendants refused to iccept the bill on the ground that the cargo shipped appeared by the invoice to be Ex. Div. xni.-20 610 ERTCHSEN V. BARKWORTH 3 H & N. 801 different from the cargo contracted for, and the bill of lading in consequence remained in the possession of the Bank of British North America. The following correspondence took place between the defendants and the Bank of British North America The case then set out a letter, dated the 28th August, 1857, from the Bank of British North America to the defendants, stating that the Bank held the draft of Messrs. M'Phelim on them, dated the 6th August, 1857, for 4421 Os. lOd , which they had declined to accept, in answer the defendants wrote as follows : - "Hull, 29th August, 1857. "Gentlemen,-We declined to accept Messrs. M'Phelim's draft in consequence of the great variation of the shipment, p. 'Skyeberg,' from the contract, of which we gave full particulars to their agent at Liverpool. "We cannot, in consequence, take the cargo to account; but, if you think proper, we will land it on arrival and take care of it on our own premises; and likewise, if you wish it, pay the freight on your account If you agree to this, we are willing also to accept the captain's draft, which we presume is in your hands as well as that of the shippers, holding, of course, a lien on the cargo for the amount in the same manner as for the freight and charges. "If you have any different or contrary instructions to give to the master on his arrival, be pleased to have them ready for him, so that he may commence discharging without delay. We ask this because, as chartereis of the vessel, we may be liable in the first instance for any demurrage charge.-We remain, &c., "BARKWORTH & SPALDIN." [604] On tie 1st September, 1857, the Bank acknowledged the receipt of the defendants' letter of the 29th August. The vessel sailed with her cargo for Gloucester, where she arrived in due course on the 5th of September, and on that day the master received from the defendants the following letter:- "Hull, 29th August, 1857. "Sir,-As charterers of your ship from Buctouche to Gloucester, we beg to inform you that the documents we have received of the cargo discover it to have been shipped entirely at variance with the contract, and we have therefore declined to take it to account, or to accept the shipper's draft, which is now held by other parties together with the B/L against advances made by them. "The holders of the B/L are, of course, entitled to the cargo; but, should you receive no instructions from them in sufficient time to enable you to commence dis charging without delay, we are ready, in order to prevent delay, to proceed with the delivery of your ship and land the cargo for account of whom it may concern, and pay you the freight as per charter-party, less the sum advanced you at Buctouche.-We remain, &c., " barkworth & spaldin " The master also received, on the 5th September, 1857, a letter from the Bank of British North America, stating that they held his draft on Messrs Barkworth & Spaldin for 1441. 10s 6d. which had been protested for non-acceptance, and requesting security for its payment at matunty. Also advising him not to part with the cargo without the production of a bill of lading indorsed by Messrs M'Phelim The master received, on the 5th September, 1857, the following letter written by the defendant's authority :- "Gloucester, 5th Septr , 1857. "Sir,-We are ready to receive the cargo of deals upon the terms mentioned in ours, dated 29th ulto. '"[605] Should there be any demurrage in consequence of the deals not being discharged during the ship's lay days, we beg to inform you that you must look to the holder of the bill of lading for the payment thereof, and not to us.-Yours, &c , "Per pro. barkworth & spalden "C. smith." On the 8th September, 1857, Messrs. M'Phelim's draft on the defendants was again presented to them for acceptance and again refused, and, on the same day, the 3 H. & K. 608, ERICHSEN V. BARKWORTB 611...
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