De Mattos v Gibson
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1860 |
| Date | 07 June 1860 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 669
HIGH COURT OF CHANCERY
S. C. 30 L. J. Ch. 145; 3 L. T. 121; 7 Jur. (N. S.) 282. For previous proceedings, see 28 L. J. Ch. 165; 5 Jur. (N. S.) 347; 7 W. R. 152.
Ship. Mortgage. Right to use the Ship. Merchant Shipping Act. Injunction. Detention. Measure of Damages.
[79] de mattos v. gibson. June 6, 7, 1860. [S. C. 30 L. J. Ch. 145; 3 L. T. 121 ; 7 Jur. (N. S.) 282. For previous proceedings, see 28 L. J. Ch. 165; 5 Jur. (N. S.) 347; 7 W. R. 152.] Ship. Mortgagee. Plight to use the Ship. Merchant Shipping Act. Injunction. Detention. Measure of Damages. Semble, the mortgagee of a ship is entitled to take possession and sail her, and upon doing so becomes an owner within the meaning of the Merchant Shipping Act, 17 & 18 Viet. c. 104, and subject to all the liabilities consequent thereon. 670 DB MATTOS V. GIBSON 1 J. & H. 80. Where, on granting an injunction against the use of a ship by the owner, an undertaking for damages is given, the measure of damages would include the loss of profit by the detention of the ship. But where the injunction was against a mortgagee of a ship, which was an insufficient security, who had declared his intention to sell, and had not suggested the loss of possible profit as part of the damage anticipated : Held, that the loss of such profit was too speculative to be taken into account;, and that the measure of damage was the expense involved in the custody of the ship and the deterioration which she had suffered, together with interest in the meantime. The Defendant, Curry, was owner of a ship called the Allerton, and the Defendant, Gibson, was mortgagee thereof, with power of sale. Before the mortgage Curry had chartered the ship to the Plaintiff for a voyage to Suez, and the Plaintiff alleged that Gibson had notice of the charter-party, and in fact received the benefit of moneys paid by the Plaintiff in respect of it. The ship sailed under the charter-party, and put back for repairs; and Gibson threatened to sell her. The Plaintiff filed the bill for specific performance of the charter-party, and for an injunction to restrain the threatened sale, the Defendant stating by his answer that he did intend to sell the vessel without reference to the charter-party, and had, with that view, sent instructions for her removal to Newcastle, and not suggesting any intention to charter the vessel, or any probability of damage from being restrained from doing so. On the 17th of December 1858 Plaintiff obtained from the Lords Justices an injunction restraining the Defendant, Gibson, from removing the Allerton to Newcastle, or otherwise interfering to interrupt her voyage to Suez; the [80] Plaintiff undertaking to abide by any order as to damages that might be occasioned to the Defendant by the injunction. On the 20th of April 1859 a decree was made dismissing the bill; but the order was stayed pending an appeal, the undertaking as to damages being continued. On the 27th of May 1859 the Lord Chancellor affirmed the order of the 20th of April 1859; and, notwithstanding the order of the 17th of December 1858, referred it to the Judge to whose Court the cause was attached to deal with the undertakings as to damages in the said order contained. An inquiry as to damages was then prosecuted; and, on the 30th of April 1860, the Chief Clerk certified that £375, 8s. was the amount of damage. This result was arrived at on evidence that, on the 3d...
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