Havelock against Geddes
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 1810 |
| Date | 07 July 1810 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 886
IN THE COURT OF KING'S BENCH.
Referred to, Stanton v. Richardson, 1872-73, L. R. 7 C. P. 432; 9 C. P. 390; Jackson v. Union Marine Insurance Company, 1873-74, L. R. 8 C. P. 579; 10 C. P. 125; Kopitoff v. Wilson, 1876, 1 Q. B. D. 381; Tully v. Howling, 1877, 2 Q. B. D. 188; Inman SS. Company v. Bischoff, 1882, 7 App. Cas. 673.
[555] havelock against giddes and others. Thursday, Feb. 9th, 1809. LA covenant in a charter-party of affreightment that the owner shall at his expence forthwith make the ship tight and strong, &c. for a voyage for 12 months, &e. and kept her so, is not a condition precedent to the recovery of freight, after the freighter had taken the ship into his service and used her for a certain period : but if the freighter be afterwards delayed or injured by the necessity of repairing her, he has his remedy in damages. But if the owner's neglect to repair in the first instance had precluded the freighter from making any use of the vessel, that would have gone to the whole consideration, and might have been insisted on as a bar to the action. 2. A ship having been let to freight for 12 months, and for such longer period as the freighters should detain her, for which certain proportions of the freight were to be paid at the end of 2, 6, 10, and 14 months, &c. it is no answer to a breach for non-payment of six months' freight due at the end of the 10 months, that the owner had covenanted to keep the vessel in repair during the time she was freighted, and that she was not in repair when the freighter shipped goods on board her during the 12 months, which made it necessary for him to unload and repair her, whereby she was unserviceable for part of the six months; and that he had paid the freight for all the time she was serviceable ; and that she was not in his service for 10 months in the whole : for non constat but that after she had been used by the freighter, she wanted repair without any default of the owner, or that he was guilty of any delay in making the repairs; and the freight would still run on during the time of repair. 3. The freight being reserved at so much per month, was earned at the end of each month, although the stipulated times of payment were from 4 months to 4 months, and the ship were lost before the end of 14 months. 4. An allowance for extra men being covenanted to be paid by the freighter, the residue of which (after part payment) was not to be paid till the ship's discharge, or return'from her voyage, and the ship having sailed on a voyage to St. Domingo, where she arrived, but was burnt before her return; Held that such loss was a discharge of her from'jthe freighter's employment, as if by the act of the freighter ; on which such extra allowance became payable. [Referred to, Stanton v. Richardson, 1872-73, L. E. 7 C, P. 432; 9 C. P. 390; Jackson v. Union Marine Insurance Company, 1873-74, L. E. 8 C. P. 579; 10 C. P. 125 ; Kopitoff v, Wilson, 1876, 1 Q. B. D. 381; Tully v. Howling, 1877, 2 Q. B. D. 188 ; Inman SS. Company v. Bischo/, 1882, 7 App. Cas. 673.] This was covenant upon a charter-party of affreightment, dated the 5th of September 1806, whereby the plaintiff, owner of the ship "Lord Duncan," of 933 tons burthen, 10 EAST, 556. HAVELOCK V. GEDDBS 887 of which A. Heartley was master, let her to freight to the defendants for 12 calendar months certain from the 24th of September 1806, and from thence for such longer period, if any, as the defendants should think fit to keep and retain the same, upon the conditions and covenants therein after contained. And the plaintiff covenanted that the ship should be navigated and furnished with 50 persons, and such further number, not exceeding 100, as should be required by the defendants; the owner being reimbursed by the freighters for such additional number, according to the average rate of wages and provisions expended on the whole. That the ship, during the time she should be navigated and employed under the charter-party, should be under the entire control of the defendants, [556] so far as related to all orders for sailing, destination, and delay. And the defendants covenanted to pay to the owner for the hire and service of the ship for the said term of 12 calendar months, and such longer period as they should keep the same, the freight and rate following, viz. 24s. per calendar month per ton, being 11191. 12s. per month, commencing from the 24th of September 1806, and ending when the ship should be returned to the river Thames, and there by the freighters declared to be discharged: it being understood that the freighters should not be at liberty to discharge the ship abroad, although she might be abroad at the expiration of the said 12 calendar mouths, or at any other place, but within the port of London. And that the freight should be paid in the proportion, and at the periods following, viz. 2 months freight at the execution of the charter-party, either in cash or by accepted bills of the freighters at 3 months from the said 24th of September; 2 months more at the end of 6 calendar months from the said 24th of September; 2 months more at the end of 10 calendar months ; 2 months more at the end of 14 calendar months, should the ship be so long employed; and in like manner 2 months more at the end of every succeeding 2 calendar months, until the ship should be discharged^ and immediately uporv such discharge, the balance to be paid by the freighters in cash or their acceptance at 3 months. That the freighters should pay all port charges, tonnage duties, dock dues, and all other duties and dues, except lights and pilotage, which were to be paid by the owner. That they would reimburse to the owner the charges for additional men beyond 50 as before .mentioned ; two calendar months allowance for such additional men to be added to the first payment of freight; but the [557] residue of such allowance to be paid until the ship's discharge, or return from her first intended voyage : and in like manner for any other foreign voyage or voyages. By virtue of which charter-party the defendants on the said 24th of September took the ship into their service and kept and retained the same therein until she was afterwards, and whilst she was so in their service, and after the expiration of 10, but before the expiration of 12 months from the same 24th of September, viz. on the 22d of August 1807, at St. Domingo, without any default of the owner, master, or ma"riners, consumed by fire and wholly lost, and was thereby prevented from returning to London. And then the plaintiff, after averring that the ship, during all the time she was so kept and detained in the service of the defendants, was navigated and furnished with 50 persons, and such further number, not exceeding 100, was required by the defendant; and was during all that time under the entire control of the defendants as to all orders for sailing, destination, and delay; assigned three breaches; 1. That though the defendants paid the plaintiff the two months freight payable at the execution of the charter-party, and also the 2 months' freight at the end of the first 6 calendar months : yet they did not pay the two" months freight at the end of the said 10 calendar months. 2. That the defendants have not paid to the plaintiff any subsequent freight. 3. That although on the 24th of October 1806 the defendants required the plaintiff to put on board, and he did not put on board, 20 additional men beyond the 50, who all sailed in the ship on a foreign voyage to St. Domingo, and continued on board from thence until .the loss of the ship: and although according to the average rate of wages and provisions expended on the whole, the defendants became [558] liable to pay to the plaintiff 81. per month for every such additional man : yet the defendants had not. reimbursed the plaintiff for any of them. The defendants craved oyer of the charter-party, by which it appeared further that the plaintiff covenanted that the ship, at his expence, should be forthwith made tight and strong, and well and sufficiently equipped, manned, and fitted, &e. for a voyage or voyages of 12 calendar months to foreign parts; and should during the continuance of the charty-party be kept tight and strong, and well and sufficiently equipped, &c. and victualled; concluding with a mutual general covenant for 888 HAVELOCK V. GEDDES 10 EAST, 559. performance : and particularly the plaintiff binding to the defendants the said ship, freight, tackle, &c. (the perils and dangers of the seas, rivers, &c. all inevitable accidents whatever, and capture by enemies, and the detention and restraint of rulers, &c. being excepted :) and the defendants binding to the plaintiff the goods put on board the ship. The defendants then pleaded, 1. non est factum. 2dly, that the ship was not at the expence of the plaintiff forthwith or within a reasonable time after the charter-party made tight and strong, and well and sufficiently equipped, &c. for a voyage or voyages of 12 calendar months to foreign parts; whereby she was delayed1 and hindered from proceeding on a voyage from London to- St. Domingo, and was detained on her said -voyage at Portsmouth for an unreasonable length of time, viz. for 4 months, during all which time the defendants lost the use and benefit of the ship, and were put to great expence in repairing her and making her tight and strong and fitting her for such voyage; and also that thereby certain goods of the defendants on board the ship were wetted and damaged ; wherefore they pray judgment of the plaintiff's action. 3dly, the defendants [559] pleaded as to the first breach, that during the 12 calendar months therein mentioned, viz. on the 1st of November 1806 certain goods of the defendants were shipped on board the vessel to be carried from London to St. Domingo; and that at the time of shipping them the vessel was not tight and strong, and well...
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