Rodocanachi v Milburn
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1886 |
| Date | 25 November 1886 |
| Court | Court of Appeal |
Court of Appeal
Lord Esher, M.R., Lindley and Lopes, L.JJ.
Rodocanachi, Sons, and Co. v. Milburn Brothers
Charter-party and bill of lading, discrepancy between Contract between charterer and owner of ship Cargo lost by negligence of master
100 MARITIME LAW CASES. PRIV. CO.] RODOCANACHI, SONS, AND CO. V. MILBURN BROTHERS. [CT. OF APP. Supreme Court of Judicature COURT OF APPEAL. Nov. 24 and 25, 1886. (Before Lord Esher, M.R., Lindley and Lopes, L.JJ.) RODOCANACHI, SONS, AND Co. V. MlLBURN Brothers, (a) APPEAL PROM THE QUEEN'S BENCH DIVISION. Charter-party and bill of lading, discrepancy between-Contract between charterer and owner of ship--Cargo lost by negligence of master- Exception in bill of lading-Construction of charter-party-Measure of "damages-Sale of cargo "to arrive"-Advanced freight. The charter-party contains the contract between the owner and the charterer of a ship; and, unless it expressly provides that that contract may be varied by the out of lading, the shipowner will not. be relieved from liability by an exception in the bill of lading which is not in the charter-party. In an action by the charterer against the shipowner for failure to deliver, the measure of damages is the market value of the cargo at the port of destination at the time when the ship would in due course have arrived independently of any circumstances peculiar to the plaintiff, less any freight which has not been prepaid. A charter-party contained the following clause: " The master to sign bill of lading at any rate of freight, and as customary at port of loading, without prejudice to the' stipulations of this charter-party, receiving the difference, if less than the rates specified therein, at port of loading against his receipt for the same." The cargo having been shipped, a bill of lading was signed by the master, acknowledging that the cargo was chipped in good condition, and was to be delivered in a like condition at the port of destination, but excepting the shipowner from all liability in consequence of " any ad, neglect, or default whatsoever of the pilot, master, or mariners." This exception was not in the charter-party. The cargo was lost during the voyage by the negligence of the master. In an action by the charterers against the owners, of the ship for damages for the loss of the cargo, the jury found that it was usual to sign bills of lading with a similar exception, but that there was no special custom in that respect at the port of loading. (a) Reported by A. H. Bittlerton, Esq., Barrister-at-Law. MARITIME LAW CASES. 101 CT. OF APP.] RODOCANACHI, SONS, AND CO. V. MILBURN BROTHERS. [CT. OF APP. Held (affirming the judgment of Manisty, J.), first, that the clause in the charter-party did not mean that the master was to sign a bill of lading containing the provisions that were customary at the port of loading, but that he was to sign in the manner customary at the port of loading ; secondly, that, if the clause in the charter-party meant that the master was to sign a bill of lading in the form customary at the port of loading, the jury had found that there was no customary form at the port of loading, and that finding was in accordance with the evidence; thirdly, that, supposing the bill of lading that was signed to be in a form customary at the port of loading, and the clause in the charter-party to give authority to the master to sign a bill of lading in such a form, there were no express words in the charter-party incorporating the provisions of the bill of lading with those of the charter-party; that, in the absence of such words, the charter-party was the contract between the owner and the charterer of the ship; and that, consequently, the shipowner was not relieved from liability by the exception in the bill of lading. After the charter-party had been entered into, but before bills of lading had been signed, the charterers had contracted to sell the cargo on its arrival at the port of destination at 71. 2s. 6d. per ton. Held (reversing the judgment of Manisty, J.), that the measure of damages was not the amount at which the cargo had been sold, less freight, but the market value of the cargo at the port of destination at the time when the ship would in due course have arrived (which was 71. 7s. 6d.' per ton), less unpaid freight. The charter-party contained a clause providing that" sufficient cash for ship's disbursements to be advanced if required to the captain by charterers on account of freiqht at current exchange subject to insurance only." Under this clause' the charterers advanced 160l. (less premiums for insurance thereon) to the captain at the port of loading, the whole freight being 7851. The charterers aid not insure the 160l. Held (reversing the judgment of Manisty, J.), that, in estimating the damages, the amount to be deducted from the value of the cargo was unpaid freight and not advanced freight as well. This was an action by the charterers of the Redesdale against her owners for damages for the loss of a cargo of seed. By the charter-party the ship was to proceed to Alexandria, and there load a cargo to be delivered at a port in the United Kingdom. The 10th clause of the charter-party was as follows: The master to sign bill of lading at any rate of freight, and as customary at port of loading, without prejudice to the stipulation of this charter-party, receiving the difference, if less than the rates specified therein, at port of loading, against his receipt for the same. The 13th clause was: Sufficient cash for ship's disbursements to be advanced, if required, to the captain by charterers on account of freight at current exchange subject to insurance only. The cargo having been shipped, a bill of lading was signed by the master acknowledging that the cargo was shipped in good order and condition, and was to be delivered in a like condition at the port of...
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