Robertson v G. L. Jackson and Others
| Jurisdiction | England & Wales |
| Judgment Date | 23 December 1845 |
| Date | 23 December 1845 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 1006
IN THE COURT OF COMMON PLEAS.
S. C. 15 L. J. C. P. 28; 10 Jur. 98. Recognised, Llyod v. Guibert, 1865, L. R. 1 Q. B. 126. Distinguished, Tapscott v. Balfour, 1872, L. R. 8 C. P. 53. Applied Bruner v. Moore, [1904] 1 Ch. 311.
1006 ROBEBTSON V. JACKSON .2C.B.412. [412] bobertson v. G. L. jackson and others. Dec. 23, 1845. [S. C. 15 L. J. C. P. 28; 10 Jur. 98. Eecognised, Lloyd v. Guibert, 1865, L. E. 1 Q. B. 126. Distinguished, TapscoU v. Balfour, 1872, L. E. 8 C. P. 53. Applied, Bnmer v. Moore, [1904] 1 Ch. 311.] By a charter-party, A., the owner, agreed that the ship should proceed to the Tyne, and there load a cargo of coals, and proceed therewith to Algiers, and deliver the same there, on payment of certain freight. B., the charterer, engaged that the vessel should be unloaded at a certain average rate per day; and that, if detained for a longer period, he would " pay for such detention at the rate of 51. per diem, to reckon from the time of the vessel being ready to unload, and in turn to deliver." -According to the general regulations of the port of Algiers, vessels may commence unloading as soon as they enter within the mole : but, by a special regulation of the French government, coals destined for the use of the marine department are required to be unladen at a particular spot, and in a given order:-Held, that evidence was admissible to shew that the words " in turn to deliver" had by the usage of the particular trade acquired a known meaning in reference to this special regulation with respect to coals for the use of the French marine department, although A. was not cognizant of the fact of the coals having been shipped under a contract with the French government; but that the testimony of three or four witnesses, speaking to a course of business that had only grown up within about five years, and with reference to charter-parties the language of which was not identical with that of the charter-party in question, was insufficient to establish such general usage.-Held, also, that the special regulation as to the unloading of coals-for the French marine department, was to be considered one of the regulations of the port, binding upon all vessels entering the port. Indebitatus assumpsit, for the use of a certain vessel of the plaintiff on demurrage. Plea, non assumpserunt. The cause was tried before Tindal, C. J., at the sittings at Guildhall after last Hilary term. The plaintiff, it appeared, was a merchant and ship-owner residing at Pembroke, in South Wales; the defendants are ship and insurance brokers in London, carrying on business under the firm of G-. L. Jackson & Sons. On the 10th of December, 1841, the following memorandum of charter was entered into between the parties:- "Memorandum of charter-party. It is this day mutually agreed between W. Eobertson, owner of the good ship or vessel called the ' Cambria,' of the burthen of 347 tons register measurement, or thereabouts, now in the port of London, and G. L. Jackson & Sons, of Lon-[413]-don, as agents, that the said vessel, being tight, staunch, and strong, and every way fitted for the voyage, shall, with all possible dispatch, proceed direct to Carr's or West Hartley spout, on the Tyne, and there receive on board, in the usual manner, from the agents of the charterers, a full and complete cargo of coals which they bind themselves to ship, not exceeding what she can reasonably stow and carry over and above the tackle, provisions, and furniture; -and, being so loaded, shall therewith proceed to Malta or Algiers, at charterers' option, or so near thereto as she may safely get, and deliver the same (a) there, on being paid freight at and after the rate of 171. sterling per keel, in full; the coals to be taken alongside, free of expense to the ship; (the act of God, the Queen's enemies, fire, restraint of princes, and all and every dangers and accidents of the seas, rivers, and navigation, of what nature or kind soever during the said voyage, always excepted). The freight to be paid by an approved bill on London, at three months from the delivery of a certificate to the charterers, signed by the consignees, of the right and true delivery of the whole cargo agreeably to bills of lading, less such cash as they may have advanced to the master, which he is at liberty to draw to the extent of under the fiat, was an election to relinquish the action against G. and G.; and that, the principal debtors being thus entitled to be discharged, if rendered pursuant to the condition of the bond, the sureties were entitled to summary relief on motion. (a) The charter-party was a printed form. It originally contained the words "at the dep6t," but these words were objected to by the plaintiff, and were struck out. 2C.B.H4. ROBERTSON V. JACKSON 1007 1001., free of interest, and less the usual commission of 5 per cent, for procuring this charter. The charterers engage that the said vessel shall be loaded in regular turn as customary, also that she shall be unloaded, weather permitting, at the average rate of not less than twenty tons of coal per diem, Sundays excepted; and, if detained, on their part, during a longer period, they engage to pay for such detention at the rate of 51. per diem, to reckon from the time of the vessel being ready [414] to unload, and in turn to deliver. The ship to be consigned to the charterers' agents at the port of delivery, on the usual terms. Penalty for non-performance of this agreement, 5001. It is further agreed that, after the discharge of the coals, the ship shall proceed direct to Palermo for orders whether to load there, or at any other usual loading place in the two Sicilies (Terra Nova excepted), a full and complete cargo of wheat, or other lawful merchandize, for a safe port in the United kingdom, calling at Cork or Falmouth for orders, if required, for the freight of 6s. per quarter of wheat, or 28s. per ton of 20 cwt. of brimstone, net at the Queen's beam, and for all other goods in proportion to these rates, in full, an extra 6d. per quarter of wheat to be paid should the vessel load wheat at any other place than Palermo. Forty running days are allowed for loading and unloading the homeward cargo, from the vessel being in pratique, and ready to load and unload. The ship to be consigned to the charterers' agents, who are to have the option of cancelling the charter-party, should the vessel not reach Palermo on or before the 1st day of March next. Mats for the proper dunnage of the cargo, to be provided at the charterers' expense. It is agreed that no more than 5 per cent, commission is to be charged on the homeward cargo, which is to be sent alongside and taken from alongside free of expense to the ship. Cash to be advanced the master at his loading port abroad for ship's use, not exceeding 1001., against his draft on his owner." The following memorandum was indorsed on the...
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