Meyer v Dresser
| Jurisdiction | England & Wales |
| Judgment Date | 06 May 1864 |
| Date | 06 May 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 1280
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 33 L. J. C. P. 289; 10 L. T. 612; 12 W. R. 983. Referred to, Grissell v. Bristowe, 1868, L. R. 3 C. P. 128; L. R. 4 C. P. 39; Maspons v. Mildred, 1882-83, 9 Q. B. D. 543; 8 App. Cas. 874.
[646] meyer v. dresser. May 6th, 1864. [S. C. 33 L. J. C. P. 289; 10 L. T. G12; 12 W. R. 983. Referred to, Grissell v. £ristuwe, 1868, L. K. 3 C. P. 128; L. R. 4 0. P. 36; Mivyxrns v. Mildred, 1882-83, 9 Q. B. D. 543 ; 8 App. Gas. 874.] 1. The consignee or goods under a bill of lading has no right to deduct from the freight payable on delivery of goods the value of articles which, though mentioned in the bill of lading, turn out not to have been put on board.-2. Hemble, that evidence of a usage to that effect would not be admissible.-3. The 3rd section of the Bills of leading Act, 18 & 19 Viet. c. Ill, does not make the bill of lading conclusive evidence against the metier that the goods were put on board.-4. The statute operates where the bill of lading is signed by the master who is part-owner, and who sues on behalf of himself and his co-owners.-5. A. orders a cargo of timber of B. at M., with directions to charter a ship to bring it to London. B. accordingly charters a ship and sends the bill of lading indorsed to A. with a draft for the invoice price, which A. accepts and pays :-tremble, that A. is u, " consignee or indorsee for valuable consideration," within the meaning of the 3rd section of the Bills of Lading Act. This was an action for freight on a charterparty and bill of lading, against the indorsee of the bill of lading. The first count of the declaration stated that, after the 14th of August, 1855, certain persons in parts beyond the seas, to wit, Messrs. Hchultz & Co., at Memel, delivered to the plaintiff certain goods, to wit, certain timber and wood, to be by the plaintiff carried and conveyed in a certain ship of the plaintiff from Memel to London under a certain bill of lading signed for the same by the plaintiff, and there delivered (the act of God, the Queen's enemies, tire, and all and every other dangers and accidents of the sea, rivers, ;and navigation, of whatever nature and kind soever, save risk of boats so far li C. B. (H. 8.) 47. MEYER V. DRESSER 1281 as ships are liable thereunto, excepted) unto the order of the said persons or to their assigns, he or they paying freight for the said goods and other conditions as per tiharterparfcy, with primage and customary average: Averment, that afterwards, and after the said 14th of August, 1855, the said persons indorsed the said bill of lading to the defendant, in order to pass the property in such goods to the defendant; and that thereupon, and by reason of such indorsement, the property in the said goods passed to the defendant: that, by the charterparty referred to in the said bill of lading, freight is made payable at certain rates therein specified, and is made payable on the delivery of the cargo, one half in cash, and the remainder by good and approved bills On London at three [647] months date: that, before this suit, all conditions were fulfilled and all things were done and had happened, and all times elapsed, necessary to entitle the plaintiff to have the freight, primage, and average paid bj the defendant according to the terms of the said bill of lading and charterparty, and to sue the defendant for the non-payment thereof thereinafter mentioned : yet that the defendant made default in paying the freight, primage, and average for the carriage of the said goods, according to the said bill of lading and charterparty; and that, although he paid the plaintiff' a portion of the freight, primage, and average payable for the carriage of the said goods, yet the defendant made default in paying the plaintiff the residue of the said freight, primage, and average, amounting to a large sum, to wit, the sum of 851. Os. 3d., whereby the plaintiff had not only lost the sum so due to him as aforesaid, bnt the use and interest of the money payable for the same. The declaration also contained counts for money agreed to be paid in consideration of the plaintiff giving up the goods without demanding payment of freight,-for hire of a ship,-and for money paid, &c. Pleas, to the first count,-first that, by the charterparty, the freight was not made payable as alleged,-secondly, non-delivery of the goods ; and to the rest of the declaration, except as to 431. 18s. 8d., parcel, &c., payment, arid as to the residue never indebted, and as to 431. 18s. 8d., payment into court. Issue thereon. The caqse was tried before Erie, C. J., at the sittings in London after Hilary Term last. The facts were as follows :-The plaintiff' was master and partowner of a Prussian iship callecj the "Rhea," two thirds of which belonged to two other persons; and in ;July, I863j entered into a charterparty with Messrs. Schultz & Co., of Memel, to carry for them a cargo of timber to Lon-[648]-don. The timber had been bought by Schultz & Co. as agents of Dresser, who is a timber-merchant in London, and they chartered the " Rhea" to carry it to London. The charterparty contained the following stipulations,-"On proper, true, and faithful delivery of the cargo agreeable to bills of lading, the captain has to receive freight on same as follows." " The captain or owner pledges the ship with all her furniture and freight, the freighter the cargo, one to the other, firmly by these presents, as special security, the latter only the cargo : it being agreed and understood that, for payment of all freight and demurrage, the captain shall have an absolute lien and charge on the said cargo." "Both parties make themselves liable for the true and faithful performance of this agreement, removing all and every objection ò or pretext contrary thereto whatever, and in witness whereof confirm it throughout ò by their respective signatures written in their own hand-writing." Bills of lading I were prepared by Schultz & Co., and aigned by the plaintiff, giving a detailed account ò of the timber shipped, including 600 pieces of oak barrel-staves, and were indorsed to I Dresaer. !The vessel sailed for London on the 16th of August, and arrived pn the ' 14th of September. Upon the discharge of the cargo, it was discovered that the 600 oak barrel-staves were not on board,-they never having in fact been shipped. The defendant there insisted upon deducting their value (411. Is. fld.) from the freight due upon the bills of lading. On the part of the defendant, witnesses were called to prove that it was the invariable custom to deduct from the freight payable the value of any missing goods ; and one of them, Dr. Zimmerman, who had been judge of an inferior court in Prussia, stated that, according to the Prussian law, the bill of lading was conclusive as to the goods being on board (articles [649] 653, 654, 655 of the Prussian Code), and that the assignee of a bill of lading had all the rights of the original shipper: articles 452-478. The defendant himself also stated that the alleged usage was not confined to the timber-trade, but that it prevailed in every trade and in every place. This evidence was admitted, subject to the plaintiff's objection. One of the plaintiffs witnesses stated that it was usual to deduct from freight any C. P. xxi.-41 1282 MEYER V. DRESSER 16 C. B. (N. S.) 660. claim which the receiver of the cargo might have in respect of goods shipped but not delivered; but he denied that there was any such usage applicable to the case of goods inserted in the bill of lading, but not actually shipped. For the plaintiff it was submitted that there was nothing to take this case out of the ordinary rule, and therefore that he was entitled to recover. For the defendatit it was insisted that the custom sworn to by himself and his witnesses entitled the defendant to deduct the value of the missing staves; and reliance w;is also placed upon the .3rd section of the Bills of Lading Act, IS & L9 Viet, c. Ill, which enacts that " every bill of lading in the hands of a consignee or indorsee for valuable consideration representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board : Provided that the master or other person so signing may exonerate himself in respect of such misrepresentation by shewing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims." The jury negatived the custom relied on by the de-[650]-fendant, and returned a verdict for the plaintiff for 371. 6s., leave being reserved to the defendant to move to enter a verdict for him. Manisty, Q. C., accordingly, on a former day in this term, obtained a rule calling upon the plaintiff to shew cause " why the verdict found for him as to so much of the issue raised by the...
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