Smith v Dart & Son

JurisdictionEngland & Wales
CourtQueen's Bench Division
Judgment Date28 Nov 1884

Queen's Bench Division

Lord Coleridge, C.J., Mathew and Smith, JJ.

Smith v. Dart and Son

Charter-party Cancellation clause Construction

360 MARITIME LAW CASES. Ct. of App.] Smith v. Dart and Son. [Q.B. Div. HIGH COURT OF JUSTICE. QUEEN'S BENCH DIVISION. Nov 27 and 28, 1884. (Before Lord Coleridge, C.J., Mathew and Smith, J J.) Smith v. Dart and Sow. (a) Charter-party-Cancellation clause-Construction -Excepted perils-Ship to arrive at port of loading free of pratique on or before a certain day- Charterer's option to cancel. The cancellation clause in a charter-party being for the benefit of the charterers, and the arrival of the ship on a date therein named being a condition precedent to the duty of the shipowner to load, the excepted perils mentioned in the charter-party have no application to such a clause, and hence, where the ship is prevented by these perils from arriving at the port of loading by the date mentioned, the charterers have the rigid to cancel. In an action for breach of charter-party, an expression of opinion by the judge that a certain port is a " safe loading place " is not a misdirection if he leaves the question to the jury. A shipowner agreed by charter-party that his vessel should "proceed to three safe loading places between C. and M., both inclusive, commencing with the easternmost place as ordered after arrival in Spain .... and them load from the charterer or his agent 7000 cases of oranges .... and being so loaded should therewith proceed, &c. . . . . (the act of God, the Queen's enemies, restraints of princes and ers, pirates, civil commotion, riots, strikes, fire, frosts, floods, and all and every other dangers and accidents of the seas, rivers, and steam navigation of what nature or kind soever during the said voyage always mutually excepted .... Should the steamer not be arrived at first hading port free of pratique, and ready to load on or before the 15th Dec. newt, the charterer has the option of cancelling or confirming this charter-party." The vessel arrived at the first loading port ordered on the With Dec, but was not free of pratique there on or before the 15th Deo., communication with the shore being impossible in the then stale of the sea and weather, whereupon on the 16th Dec. the charterers' agents gave notice to the master that they cancelled the charter-party, and refused to had the vessel. Held, in an action by the shipowner for breach of the charter-party, that the excepted perils clause could not be read into the clause providing for the arrival of the vessel at the port free of pratique on or before a certain day, and that the charterers were therefore entitled under the said clause to cancel the charter-party. This was an action brought by John William Smith, as owner of the steamship Spark, against Joseph H. Dart and Son, fruit merchants in the city of London, to recover damages which the plaintiff alleged had been incurred by him in consequence of a breach by the defendants of a charter-party made on the 14th Nov. 1881 between the plaintiff and the defendants. (a) Reported by J. Smith Esq., Barrister-at-Law. MARITIME LAW CASES. 361 Q.B. Div.] Smith v. Dart and Son. [Q.B. Div. The charter-party in question was, so far as material, in the following terms: Nov. 14, 1881. It is thin day mutually agreed between Mr. John W. Smith, owner of the good steamship called the Spark, s.s., classed 100 A 1, of the measurement of ,?? tons or thereabouts, and Messrs. Jos. H. Dart and Son, of London, merchants, that the said steamer, being tight, staunob, and strong, and ovary way fitted for the voyage, ahsil with all convenient speed proceed to three safe loading-places between Caatallon and Malaga, both inolnaive, commencing with easternmost place, as ordered, after arrival in Spain (steamer having liberty of taking outward cargo last voyage from any port to any port for owner's benefit), or so near then"-; as she may taMy got, and there load from the charterer or big agents 7000 eases of oranges other lawful merchandise, r-o oranges or other cargo to be stowed in combings of the hatches not exceeding what she can reasonably etow and carry over and above hor cabin tackle, apparel, provisions, and fumitoro, and being so loaded, shall therewith proceed to London and Hull, or so near thereto as she may safely get, and deliver the same agreeably to bills of lading, and so end the voyage, said bills of lading to be signed at any rate of 1 night, but at not less thsn chartered rate, withont prejudice to this charter-party (the act of God, the Queen's enemies, orestraints of princes and rotors, pirates, civil commotion, riots, strikes, firs, frosts, floods, and all and every other dangers and accidents of the seas, rivers, and steam navigation of what nature and kind soever daring the raid voyage always mutually excepted.). And the obar. terer does hereby promise and Ujfreo to load the said steamer with the said cargo at the port or ports of loading, and to receive the same at the port or ports of delivery as herein stated, and also pay freight as follows: Two shillings and sixpence, 2s. Sd. Hull, 2?/. ??kl. London, in foil of all port charges, dues, and pilotages, &o" other goods if shipped to pay in foil and fair proportion thereto. Payment whereof to become due and be made as follows: Cash for steamer's ordinary disbursements as port or ports of loading, not exceeding lOOt. in all, to be advanced on account of freight subject to cost of insurance only, and remaindor on right and true delivery of the cargo in cash. Seven weather working days (Sunday and holidays excepted) to be allowed the...

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