Sir Richard Hotham, Knight, and Another, against The East India Company
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 1787 |
| Date | 12 February 1787 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 1295
IN THE COURT OF KING'S BENCH
Adopted, Edwards v. Aberayron Mutual Ship Insurance Society, 1876, 1 Q. B. D. 581.
sir eichard hotham, knight, and another, against the east india company. Monday, Feb. 12th, 1787. A covenant in a charter-party "that no claim should be admitted, or allowance made, for short tonnage, unless such short tonnage be found and made to appear on her arrival on a survey to be taken by four shipwrights, to be indifferently chosen by both parties," is not a condition precedent to the plaintiff's right of recovering for short tonnage ; but is a matter of defence, to be taken advantage of by the defendants ; ancl the not averring the performance is no ground for arresting the judgment. If defendants prevent the performance of a condition precedent by their neglect and default, it is equal to performance by plaintiffs. [Adopted, Edwards v. Aberayron Mutual Ship Insurance Society, 1876, 1 Q. B. D. 581.] Covenant on a charter-party of affreightment. The declaration, after stating several parts of the charter-party, by which it appeared that the plaintiffs had let their ship, the "Royal Admiral," to the defendants for a voyage to the East Indies and back again, stated the following covenant on which the breach was assigned : "That, notwithstanding the ship was let to freight but for 903 tons, yet the Company should lade on board as many goods as the ship could bring, or was capable of taking in with safety, paying to the said owners freight for the same, according to the tonnage aforesaid." In a former part of the charter-party, stated in the declaration, is the following covenant : " And to the end the tonnage of the said ship, and the freight thereby payable, might be the better ascertained, it was thereby covenanted that no claim should be admitted, or allowance made by the defendants, for short tonaage or deficiency in loading the said ship in or for her homeward bound voyage, unless the same should be certified by the defendant's president, [639] agents, or chiefs and councils, or supercargoes, from whence she should receive her last dispatch, which said certificate the said presidents, agents, or chiefs and councils, or supercargoes respectively, should give to the master for the time being, if reasonably demanded ; and also unless such short tonnage be found and made to appear on her arrival in the river Thames upon a survey to be takeu by four shipwrights, or others to be indifferently named and chosen by the defendants and the plaintiffs ; but no such survey would be takeu or allowance made, in case bulk should be found to have been broken before demand for such short tonnage was made." The declaration then stated, that, although the defendants loaded and put on board the said ship goods, &c. to the amount of 903 tons ; and although the said ship could have brought, and was capable of taking in, with safety, goods, &c. to the amount of 100 tons more than the 903 tons, and more than were loaden and put on board the said ship by the defendants, their factors or assigns, from Bombay to London ; and although the defendants, their factors and assigns, had notice of the premises last aforesaid before the ship sailed and departed from the East Indies on her voyage to England, and were then and there required to load the said ship with the residue of the said goods, &c. so as to complete her loading, and put on board her for the said voyage what she could reasonably and safely have carried ; and although the plaintiffs offered to take in such loading, yet the defendants, their factors and assigns, absolutely refused fully to load the said ship, or to put any more goods, &c. on board her ; and the said ship, by means whereof, was obliged to sail from Bombay to London deficient in her loading to the amount of 100 tons ; neither have the defendants yet paid to the plaintiffs any freight or any sum of money for the said deficiency, but have refused, &c. The defendants pleaded first, that the ship was not capable of taking in more than 903 tons, on which issue was taken. And secondly, that the allowance claimed for short tonnage and deficiency in loading the ship, was not certified by the Company's president, agents, &c. 1296 HOTHAM V. THE EAST INDIA COMPANY 1 T...
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