Miedbrodt v Fitzsimon; The Energie
| Jurisdiction | UK Non-devolved |
| Judgment Date | 24 April 1875 |
| Date | 24 April 1875 |
| Court | Privy Council |
Judicial Committee of the Privy Council
The Right Hons. Sir J. W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith, and Sir R. P. Collier
Miedbrodt v. Fitzsimon; The Energie
Paynter v. James L. Rep. 2 C. P. 348 3 Mar. Law Cas. O. S. 76
Merchant Shipping Act Amendment Act 1862 (25 & 26 Vict. c. 63), ss. 67, et seq.
Breach of contract of carriage of goods — Charter-party — Bill of lading
MARITIME LAW CASES. 555 PRIV. CO.] Miedbrodt V. Fitzsimon; The Energie. [Priv. Co. ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF IRELAND. March 25 and 26, and April 24,1875. (Present:The Eight Hons. Sir J. W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith, and Sir.R. P. Collier.) Miedbrodt V. Fitzsimon. The Energie. Breach of contract of carriage of goods - Charter-party - Bill of lading - Detention of cargo by master - Lien - Freight and general averege.when due - Demurrage - Merchant Shipping Act Amendment Act 1862 (25 & 26 Vict. c. 63), ss.67, et seq. - Landing and warehousing goods - Stop order for excessive amount - Duty and liability of master. Where, by a charter-party and bill of lading, freight is " to be paid on unloading and right delivery of the cargo,' the master having a lien by common law for freight and general average, and a lien by contract for demurrage, the payment of the freight and the delivery of the, goods are concur-rent acts in which all that is required from the owner of the cargo is readiness and willingness to pay at the time of delivery ; and before paying any sum for general average, the owner of cargo is entitled to be satisfied that the amount claimed is the result of a proper adjustment; and if the owner of cargo on arrival of the ship in port, and beforedischarge, refuses to pay the amount claimed for freight and general average before the amount due is finally ascertained, but offers to pay a large proportion of the freight, and, there being no doubt as to his solvency, to sign an'average bond for the payment of the general when ascertained, but the master, nevertheless, insists upon retaining the cargo on board ship until his lien for freight and general average is satisfied, deten-tion by the master is not wrongful, but quaere, can he impute the delay in the disclarge to the owner of cargo or claim for demurrage on that ground ? To justify the master of a ship in landing or warehousing a cargo under the Merchant Shipping Act Amend nent Act 1862 (25 & 26 Vict. c. 63), 8. 67, by which it is enacted that where the owner of goods imported "fails to land and take delivery thereof, and to proceed therewith with all convenient speed"by the time named in the charter-parly, &c, " the shipowner may land and unship the said goods" and warehouse them, it is not necessary that the failure of the owner of cargo should be a "wilful default" in landing, &c., but the master is at liberty to land the goods whenever the delivery of them to the owner within the proper time has been prevented by circumstances, whether the latter is or is not to blame. The provisions of the Merchant Shipping Act Amendment Act 1862 (ss. 67 and 68),giving power to a master to land and warehouse a cargo, and give notice of his lien to the warehouseman, enable the master to retain his lien, but do not extend it to charges not due at the time of landing, and if the master wilfully, and for the purpose of exacting from the cargo owner charges for which he has no lien, places upon the goods a stop order for an excessive amount, which the cargo owner is compelled to pay before he can obtain his goods, the landing and detention of the goods for that amount is a wrongful act, for which the owner of cargo may recover. Where a master lands and warehouses goods under the Merchant Shipping Act Amendment Act 1862, 556 MARITIME LAW CASES. PRIV. CO.] Miedbrodt V. Fitzsimon; The Energie. [Priv. Co. and, to preserve his lien for freight and general average, places on them a stop order for the amounts claimed, and one of those amounts is paid by the cargo owner, it becomes the duty of the master to reduce the stop order to the amount for which he can after such payment reasonably claim a lien, and his refusal to do so amounts to a wrongful detention of the cargo. Semble, that a master is not liable merely because he lands and warehouses goods under a stop order for a sum in excess of the amount due to him, if he bond fide claims a lien for that sum. This was an appeal from a decree of the Court of Appeal in Chancery in Ireland, reversing a decree of the High Court of Admiralty of Ireland. The cause was instituted in the High Court of Admiralty in Ireland, under the 37th section of the Admiralty Court (Ireland) Act 1867 (30 & 31 Vict. c. 114), by James Charles Fitzsimen, merchant, of Dublin, in rem, against the ship Energie, to recover damages for breach of contract in respect of the non-delivery of certain goods belonging to the respondent (plaintiff), and carried into the port of Dublin in the Energie. An appearance was entered in the cause by Wilhelm Gastav Miedbrodt, the waster of the Energie. The respondent's (plaintiff's) petition in the High Court, alleged that on the 8th Oct. 1872, a charter-party was entered into between the owner of tho Energie and one H. W. Plaw, as agent for Joseph Dowson and Co., of London, by which charter-party it was agreed that the said ship should load at Memel a full and complete cargo of fir timber, and should carry the same to Dublin and there deliver on being paid freight at the rate of 12. per load of fifty cubic feet, calliper measure, the usual perils excepted, the freight to be paid on unloading and Tight delivery of the cargo, the cargo to be received at the port of discbarge in fourteen running days, and if she were longer detained through any act of the receivers, the captain to be paid 6l. a day demurrage for eacb and every day the vessel was detained over and above the stipulated laying days, the captain to have an absolute lien on cargo for all freight and demurrage. That the cargo was duly shipped by the said H. W. Plaw at Memel, and the master signed a bill of lading for the same, whereby he undertook to deliver the same at the port of Dublin (the usual perils excepted), unto order or assigns, the freight to be paid for the said goods and other conditions as per charter-party. That the said H. W. Flaw duly indorsed the said bill of lading to the plaintiff, to whom the property in the said cargo thereby passed; and that the plaintiff then was and continued to be the owner of the said cargo. That the Energie having sustained some damage daring her voyage with the said cargo from Memel to Dublin, the master was obliged to cut away her masts, and the said vessel was brought into Copenhagen in a disabled condition, to be refitted, and that, to seeure the expenses of the repairs effected, a bottomry bond was executed for a large amount by the said master. That after the repairs were completed, the said vessel again proceeded on her voyage, and arrived in Dublin on the 15th April 1875. That on that date the master called upon the plaintiff and informed him that there was a claim on foot of the said bottomry bond, and that until it was settled he could not deliver the cargo. That the plaintiff thereupon required the said master then to deliver the said cargo to him, and the plaintiff offered to pay the freight due for the transportation thereof, and to sign an average statement according to the usual and acoustomed course of business; but the master stated that he bad no such statement, and refused to deliver the cargo to the plaintiff. That subsequently to the last-mentioned interview, the said master demanded an excessive and improper amount from the plaintiff as his average contribution, and refused to deliver the cargo, though frequently required to do so by the plaintiff, until tho same and freight and other charges were paid by the plaintiff. That the plaintiff tendered the amount of freight and charges properly payable by him in respect of the said cargo to the said master who declined to receive the same or to deliver the said cargo. That the plaintiff repeatedly demanded the delivery of the said cargo, and was always ready and willing to pay all sums properly payable by him, and ottered and tendered the same to the master, but, notwithstanding, the master improperly and unlawfully refused to deliver the said cargo to tho plaintiff, and landed and warehoused the same, and gave a notice in writing to the warehouse owners that the said cargo should remain in their hands, subject to a claim by the said master of 22002. for charges alleged to be payable thereon, and the said notice was not thereafter withdrawn by the said master. That the plaintiff alleged the said landing and warehousing of the said cargo was wholly illegal, and that even if the same were legal, the amount claimed by the said notice was grossly in excess of all charges to which the said master was then entitled. That various offers and tenders wore made by and on behalf of the plaintiff to the master in order to enable the plaintiff to obtain tho said cargo, but notwithstanding the same the master refused to release the said cargo, except on terms of the plaintiff paying the said sum of 22002., and the plaintiff had been obliged to pay and had paid the said sum to the warehouse owners to obtain the said cargo. That by reason of the aforesaid breaches of duty and breaches of contract on the part of the master of the Energie the plaintiff sustained heavy losses. And the petition concluded by praying the judge to pro-nounce for the damage proceeded for, and to condemn the Energie and her bail therein, and in costs, and if necessary to refer the amount of the damage to the registrar assisted by merchants. Tho answer of the appellant (defendant) set out the facts at length, averred that the sum demanded for average was 12212. 2s. 11d., and that the average statement adjusting such sum as payable by the respondent...
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