McLean v Fleming
| Jurisdiction | England & Wales |
| Judgment Date | 03 April 1871 |
| Date | 03 April 1871 |
| Court | House of Lords |
House of Lords
The Lord Chancellor (Hatherley), Lord Chelmsford, Lord Westbury, and Lord Colonsay
McLean and another v. Fleming
Kirchner v. VenusENR 12 Moo. P.C. 361
Phillips v. RodieENR 15 East, 155
Pearson v. GoschenENR 17 C. B., N. S. 352
Gray v. Carr ante p. 115 L. Rep. 6 Q. B. 522
Birley v. Gladstone 3 Mau. & Sel. 205 2 Mar. 401
Charter-party — Dead freight — Deficiency of cargo
160 MARITIME LAW CASES. H. of L.] McLean and another v. Fleming. [H. of L. HOUSE OF LORDS. Reported by Douglas Kingsford, Esq., Barrister-at-Law. Monday, April 3,1871. The Lord Chancellor (Hatherley), Lord Chelmsford, Lord 'Westbury, and Lord ColONSAy.) McLean and Another v. Fleming. (Jharter-party - Dead freight - Deficiency of cargo - Lien - Indorsees of bills of lading also chartered - Quantity specified in bill of lading. Dead freight" means componsation, liquidtated or unliquidated; for the loss suffered by the shipowner. by the failure on the part of the charterer to supply a full carge and the amount payable in respect thereof, where it is unliquidated, is such reasonable:amount as the shipowner would have earned, after deducting such expenses as he would have incurred a full cargo had been shipped. A lien on the cargo actually shipped for: dead freight may be created by express stipulation in the charter-party, Where a charter-party is entered into on behalf of the indorsees of the bills of lading given under the charter, so that they are the actual charterers, they are bound by a stipulation as to lien in the charter-party. Bills of lading signed by the master are primd facie evidence that the quantities, named therein were received on. board by him; the onus of rebutting this presumption and of shouting that a, less quantity than that specified was rectived lies on a ship-owner, (a) . (a) The exact words of the charter party, so far as they are material, are as follow: " It is this day mutually agreed between Samuel Donaldson, of the good whip or vessel Persian, of Liverpool, of tie measurement of 598 tons or thereabouts, now lying at this port (Constantinople), whereof himself is master, and Mr. A. Carmusi, of this city, freighter of the said vessel, that the said. ship, being tight, staunch, and strong, and in every way fitted 'for the voyage, shall with all couvenient speed, after discharging her present cargo, bo made ready to sail and proceed to Onnish, Kerrasonnda, in a third place of Marmora, and to fill up in a fourth place below, vis., Enos, Khero, Orfano, Port Lagos, Salonica, Smyrna, scala Nnova, at charterer's option, or so near thereunto as she may safely get, and there load iron the agent of the said freighter a full and completed cargo of cattle bones in bulk, the captain to sign bills of. lading at each port, at the option of the freighter, not exceeding what she can ressonably stew and carry over and above hot tackle, apparel, provision, and famiture; and being do leaded, chall therewith prcced to a safe port in the United Kingdom, orders on signing bills of lading on the last port, or lay days to commsence, and deliver the 3ame, on being paid freight as follows - viz., at the rate of, say, 35s. (thirty-five shillings). sterling English per ton of bones of 20 owt. Delivered in full. . . . The captain or owner to hare an absolute lien on the cargo for all freight, dead freight, and demurrage. - The cargo to be brought to and taken from alongside, &c. . . . The freight to be paid on unloading and right delivery, of the cargo, half in cash, and the remainder by approved bills, &c, . . . sixty rnnning days, &c.' for loading and nnloading, &c. . . . Penalty for non-parformance of this agreement, amount of freight. Charterers binding thomselves to ship at Onnieh and Kerrasounds from 170 to 200 tens of said bones. It is understood that the ship is to be loaded in four of the above places." On reference to the case of Gray v. Carr (ante p. 115), it will be' seen that the charter parties in the two cases aw almost identical, more especially is those parts giving a lien for dead freight. Brett, J., commenting on McLean v. Fleming in his jndgment in Gray v. Carr, say "The charter party was in respect of the carriage of a uniform cargo, and the freight was payable at a fixed sum per ton, and the charter party ascertained the amount of the carge that was to be loaded;" and he distingnished the two cases. In Gray v. Carr it will be seen that the charter parly (as to the cargo actually shipped) was in respect of a uniform cargo, that is, of oak staves; that the freight was payable at a fixed sum per 100 pieses of oak staves; and that the charter party, by giving the ship's tonnage, gave the same means' of ascertaining, in that case, the amount of cargo that was to be loaded in the same way as it was given in McLean v. Fleming. In fact, in McLear v.Fleming the actual amount of cargo shipped was only ascertained by weighing at the port of discharge and in that sence the damages were unliqui. dated; The fact that it might have been easier to measure the damages in' the one -case...
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