Soares and Another v Thornton
| Jurisdiction | England & Wales |
| Judgment Date | 20 June 1817 |
| Date | 20 June 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 250
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 1 Moore. 373.
SOARES AND ANOTHER V. THORNTON. June 'JO, 1817. [S. C. 1 Moore, 373.] Where the owner of a ship, by his contract, places the entire vessel for a time under the sole controul of the freighter, during that time any act of the owner of the vessel, done in fraud of the freighter, is an act of barratry.-The words "let to freight and hire" are not essential in order to constitute the freighter sole owner fqr the time.-A covenant by the owner to carry 100 tons for the freighter from P. tb O., at 61. per ton, and a covenant by the freighter that the commander might fill up the vessel with any other goods on freight, the commander agreeing that the freighter should have the preference of shipping the other goods : if the freighter fills up the vessel, he becomes complete owner for the time, and a loss by the act of the original owner is a loss by barratry. This was an action of assumpsit on a policy of insurance upon flax, valued at 52001., at and from Pernau to Oporto. In all the counts, the interest was averred to be in the Plaintiffs. In the first count the loss was averred to be by the barratry of the master. [628] In the second count, by certain perils, losses, and misfortunes, which came to the hurt, detriment, and damage of the goods. And in the third count, by perils of the aeas. At the trial before Burrough J., at the London Sittings after (a) See Manw. c. 18, a. 10. "Of the signification of these two words hawking and hunting," p. 136, in 4to edit. Lond. 1615. 7 TAUNT. 629. SOARES I'. THORNTON 251 Hilary term, 1817, the jury found a verdict for the Plaintiff, for 5001. damages, subject to the opinion of the' Court upon the following ease. The Plaintiffs, on the 20th February 1816, entered into a sealed charter-party, expressed to be between Joze de Fontes commander of the Portuguese brig " Jozfe and Maria," then in the port of London, and the plaintiffs, freighters of the aaid brig, whereby Fontes covenanted, that the brig being tight, staunch,'and substantial, and every way properly fitted, victualled, and manned, as is usual for vessels in merchants' service, and for the voyages thereinafter mentioned, should immediately take on board in London, from the freighter, seventy tons of flax, and five tons of hemp, and therewith proceed direct to Figueira, and gave notice of her arrival to the agents there of the freighter, and deliver the flax and hemp, agreeably to bills of lading, and with all dispatch sail direct to Pernau, and there take on board from the said agents or assigns 100 tons of flax, (together with the other goods thereinafter mentioned) and therewith sail direct to Oporto, and there deliver the whole 100 tons of flax, agreeably to bills of lading, and there end the voyage. And the commander agreed, that the brig should lie at Pernau for the purpose of receiving the 100 tons of flax, twenty running days in the whole, to commence on 10th of April then next, provided the brig should then have arrived at Pernau, and be ready to load on or before that period ; otherwise the lay days to commence from the day on which the brig should arrive at Peniau, being ready to load, and notice thereof given: that the vessel should go ad-[629]-dressod to the agents or assigns of the freighter, at her ports of loading and discharge; and the freighter covenanted, at his own costs, to send the seventy tons of flax and five tons of berap alongside the said brig in the port of London, and to send the 100 tons of flax alongside the brig at Pernau, within the day thereinafter limited, or days of demurrage thereinafter granted; and to receive the 100 tons of flax from alongside the brig at Oporto with all dispatch, and to pay for the freight or hire of the brig for the voyage, 21. 10s. from London to Figueira, for every ton of flax or hemp there delivered, with 5 per cent, primage, and from Pernau to Oporto, freight at 61. per ton for the flax there delivered, with 51. per cent, primage ; that the whole freight and primage from London to Figueira, and from Pernau to Oporto, should lie paid as fallows; viz. 3001. to be advanced previous to the brig sailing from London ; but in the event of the loss of the vessel during the voyage, the 3001. to be returned, the remainder of the freights and primage to be paid in cash forthwith oti the freighter receiving advice of the delivery of the flax at Oporto: provided, and the freighter agreed, that the commander should have liberty, without prejudice to that charter-party, to receive any goods on freight on board the brig at Figueira for Pernau, and there deliver them ; for loading such goods, the commander was to be allowed fourteen running daya from the brig's arrival at Figueira; and in such event, the commander agreed, that the goods should be delivered at Pernau within eight running days after arrival there ; provided further, and agreed, that the said commander might, without prejudice to that charter-party, complete the loading of the brig at Pernau with other goods, on freight, over and above the 100 tons of flax : and in such case the commander agreed, that the agents [630] or assigns of the freighter at Pernau should hive the preference of shipping the other goods, they paying freight for the other goods in proportion to the stipulated rate of freight for the 100 tons of flax; and the commander agreed, that the vessel should not be detained at Pernau any longer time over and above the lay days allowed for loading the 100 tons of flax, than should be necessary for stowing the remainder of her cargo; that the freighter might keep the vessel on demurrage at Pernau fifteen running days over and above the lay days, at 31. per day ; and by a memorandum, previous to the execution, it was further agreed...
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