Thompson and Others against Gillespy
| Jurisdiction | England & Wales |
| Judgment Date | 01 June 1855 |
| Date | 01 June 1855 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 459
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 24 L. J. Q. B. 340; 1 Jur. N. S. 779.
[209] thompson and others against gillkspy. Friday, June 1st, 1855. Declaration stated that a charter party was made by plaintiffs, owners of a ship then at Sunderland, and defendant, whereby it was agreed that the ship, " being tight, staunch and strong, and every way fitted for the voyage," should at Sunderland load a cargo from the merchant's factor, and, being so loaded, should therewith proceed to Constantinople for orders, to deliver there, or at other places named, being paid freight at rates named; "one fourth of the freight to be advanced to the owner's agent in London, on the ship having sailed, less 51. per cent, for insurance, interest and commission." That defendant caused the ship to be loaded, and "the ship, being so loaded, sailed, to wit for Constantinople, pursuant to the said charter party;" that plaintiffs did atid were ready to do all things necessary on their part, and all things necessary happened and were done, to entitle plaintiffs, by their agent in London, to receive, and render defendant liable to pay to him, the fourth part of the freight, less 5 per cent. &c.: yet defendant had not paid it. Plea: that the ship was not, at the commencement of the voyage, tight, staunch and strong, and every way fitted for the voyage, and that, by reason of the premises, the ship and the cargo were wholly lost.- 460 THOMPSON V. GILLESPY 5 EL. & BL. 210. Held, on demurrer, a good plea: for that the sailing of the ship in a seaworthy condition was made by the charter party a condition precedent to the payment of the fourth of the freight. But that the plea could not be supported on the ground of avoiding circuity of action.-Defendant also pleaded that plaintiff not only sent the ship to sea in an unseaworthy state, but that, after she was so sent, plaintiffs permitted the master to leave the ship and go on shore, and permitted her to be near the shore without a master or sufficient crew; and she, by reason of the premises, sunk and was lost, and the cargo was wholly lost.-Held, on demurrer, a bad plea : inasmuch as it did not traverse the sailing of the ship according to the charter party ; and the subsequent misconduct of the plaintiff was ground only for a cross action.-Defendant also pleaded that the ship did not sail as alleged ; on which issue was joined.- On the trial, it appeared that she loaded in Sunderland dock, and, being duly cleared, crossed the bar, came out of Sunderland harbour into the roads, and there cast anchor three miles from Sunderland: the shrouds and cables were not in a proper condition for sailing; the bills of lading not signed ; the mate was not on board ; and the master soon after left her. There was no intention that she should afterwards return to the harbour. She was lost on the night of the day she so cast anchor, none of the above mentioned deficiencies having been supplied.-Held that, upon these facts, it appeared that the ship had not sailed, but merely gone into the roads to complete her preparations for sailing: arid that defendant was entitled to the verdict. [S. C. 24 L. J. Q. B. 340; 1 Jur. N. S. 779.] The first count of the declaration alleged that a charter party was made and entered into by and between plaintiffs and defendant, of which the following is a copy. "London, 14th October, 1854. It is this day mutually agreed between Messrs. E. Thompson & Sons, owners of the good ship or vessel called the ' Mary Graham,' whereof is master, of the tneasure-[210]-ment" &c. "now at Sunderland, and Thomas Gillespy, of London, merchant, that the said ship, being tight, staunch and strong, and every way fitted for the voyage, shall, with all convenient speed, at Sunderland load from the factors of the said merchant, in the customary manner and in regular turn, a full and complete cargo of Londonderry or Latnbton s Walls End coals, whichever is readiest; which the said merchant binds himself to ship, not exceeding what she can reasonably stow and carry, over and above her tackle" &c.: "and, being so loaded, shall therewith proceed to Constantinople for orders, to deliver there, or Stenea or Beicos Bay, or at Varna, or a safe place in the Black Sea, or so near thereunto as she may safely get, and deliver the same, in her regular turn, into craft, steamer or depot ship, at any wharf or pier where she may safely lie, as may be directed by the consignee, being paid freight on the quantity delivered in the manner after mentioned at the rate of 341. per kiel of 21£- tons, if discharges at Constantinople, Steuea or Beicos " &c. (other rates for a discharge elsewhere), " in full of all port charges, consulages, pilotages, Ramsgate and Dover dues : the act of God " &c. "excepted. The balance of freight to be paid by an approved bill on London, at three months' date from the production of the consignee's certificate of the right delivery of the cargo at as aforesaid, agreeably to bills of lading, or in cash equal thereto, at charterer's option." Then followed stipulations as to rate of unloading, running days for the same, and demurrage for excess; and other clauses not now material. "One fourth of the freight to be advanced to the owner's agent in London, on the ship having sailed, [211] less 5 per cent, thereon for insurance, interest and commission : penalty for non-performance of this agreement, the estimated amount of freight." Signed by defendant and plaintiffs. Averment: that the persons in the said charter party mentioned and described as Messrs. R. Thompson & Sons were and are plaintiffs, and that the person therein mentioned and described as Thomas Gillespy was and is defendant. That defendant caused the ship to be loaded with a full and complete cargo of coals, to wit pursuant to the said charter party; and that the said ship, being so loaded, sailed, to wit for Constantinople, pursuant to the said charter party. That plaintiffs did, and were ready to do, all things necessary on their part, and that all things necessary happened and were done, to entitle plaintiffs, to wit by their agent in London, to receive, and to render defendant liable to pay to their agent in London, the one fourth part of the said freight by II EL & BL. 212. THOMPSON V. GILLESPY 461 the said charter party agreed to be advanced to the plaintiffs' agent in London, on the ship having sailed, less 51. per cent, thereon for insurance and commission. That the said one fourth part of the freight, less 51. per cent, as aforesaid, amounted to a large &c., to wit 2141. Yet defendant hath not paid the same, or any part thereof, to plaintiffs, or to their agent in London. Second count, for money payable by defendant to plaintiffs for freight for the conveyance by plaintiffs for defendant, at...
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