1. Claim of foreign seamen, engaged for a voyage out and home, for wages, board wages, and passage money home, out of proceeds of ship in cause of bottomry ... ... ... 279 2. Right of master, under 17 & 18 Vict. c. 104, to double pay when wages improperly withheld -Semble, objections on appeal to court not raised before registrar, cannot be entertained... 108 3. Exceptions to petition-Admiralty Court has not jurisdiction to decree payment of claim founded on customary right or special agreemert-Rule as to costs where some of the exceptions are allowed and others overruled... 133 4. Suit for foreign master's wages dismissed where consul of state to which ship belonged, not having received notice previous to institution of suit, protested against cause proceeding 144 8. Master's wages-Disputed accounts-Costs of reference to registrar where more than one-half of owner's claim for set-off and nearly twothirds of master's claim had been disallowed ... 207 9. Right of seamen to recover wages by action against master-Priority of seamen's claim to that of master-Precedence of master's wages over claim of bottomry bondholder-Liability of master, under covenant that he had authority to charge ship, freight, and cargo with amount due under bond-Effect of covenant on priority of claim for wages 10. Question as to forfeiture of wages by constant, but not occasional drunkenness, or gross error in judgment-Loss of ship's boat ... ... 261 274 11. Semble, that master's right to sue for his wages in Adiniralty Court constitutes a maritime lien 12. Master's liability for wages due to crew and for necessaries furnished by his order is not included in the term "disbursements" in Admiralty Court Act (1861), s. 10 — Admiralty Court has no jurisdiction to entertain such a claim-Reduction of bail 13. In suit for wages of foreign seamen, if consul intervenes and asks payment of wages to be made to him on their behalf, the Admiralty Court usually grants the application ... ... 14. Under ordinary circumstances, if foreign consul objects to continuance of suit by seamen for wages, the Admiralty Court will dismiss the suit-Distinction between proceeding against ship and against proceeds of ship sold 325 327 400 420 393 REPORTS OF All the Cases Argued and Determined by the Superior Courts RELATING TO MARITIME LAW. COMMENCING MICHAELMAS TERM 1860. ROLLS.] ROLLS COURT. SEVIN v. Delandes. Reported by H. R. YOUNG, Esq., Barrister at-Law. Thursday, Dec. 13. SEVIN. DElandes. Charter-party-Injunction. The court has jurisdiction to deal with questions relating to charter-parties; and so, when a charterparty has been entered into bonâ fide, it can, on a sufficient case being made, grant an injunction to restrain the breach of such a contract. 66 [ROLLS. which the ship was then actually bound. As to the real nature of these engagements, however, the evidence was contradictory; and also as to whether the ship was offered to the plaintiffs to be chartered by them as a free ship, or otherwise. But the charter-party of the 24th Nov. last was executed as above stated; and on the 4th of this month the plaintiffs obtained an order ex parte for an interim injunction restraining the defendants Mr. Delandes and Messrs. Seymour, Peacock and Co., from taking any goods or passengers on board the ship Just, of Jersey, and from advertising, navigating, or using the said ship otherwise than and except as and for charter-party, dated the 24th Nov. 1860. The present the purposes expressed and contained in the said application was for an order to continue the interim injunction so obtained. It could not be affected by the alleged "engagements;" besides, the evidence as to them was contradictory: (De Mattos v. Gibson, 4 De G. & J. 276.) insisted that this court had no jurisdiction to deal with Selwyn, Q.C. and Hetherington, for the defendants, questions arising upon charter-parties; or, at all events, it was doubtful whether there was such a power in the court. If so, the plaintiffs could not succeed in this application. When Mr. Delandes entered into the charter-party of the 24th Nov. he thought the engagements by which he believed the ship to be then bound would be provided for by the plaintiffs. That, at least, was clear from the evidence. By a charter-party, dated the 24th Nov. 1860, the plaintiffs entered into a contract with the defendant Mr. Delandes, for the navigating of a ship called the Just, of Jersey, to the coast of Africa and back; and the charter-party contained an express proviso that no goods or passengers should be taken on board for any one except the plaintiffs, and only with their written R. Palmer, Q.C. and Marten, for the plaintiffs, conconsent thereto. It appeared that the ship had returned tended that the charter-party of the 24th Nov. last was from a voyage on the 21st Nov. last, and was now clear and distinct in its terms, and complete and bindlying at the St. Katharine's-docks. On the 22nding on Mr. Delandes, and, of course, upon his agents. Nov. a charter-party was entered into between the plaintiffs and Mr. Delandes, and signed by Messrs. Gamman, as his agents, for him. On the 24th Nov. Mr. Delandes came to London, and went to his agents there, Messrs. Seymour, Peacock and Co., taking with him a copy of the signed charter-party of the 22nd Nov. Messrs. Seymour and Co. suggested some alterations, and put them down in writing on a separate paper. Mr. Delandes subsequently took that signed charter-party and the alterations to the office of Mr. Gamman, where he met Mr. Chinery, one of the plaintiffs. After some discussion another charter-party (being that dated the 24th Nov. last) was signed by Chinery and Delandes. On the 26th Nov., notwithstanding the execution of this last-mentioned contract, Mr. Delandes and his agents in London made preparations for a totally different dealing with the ship in question; and refused to carry out their agreement with the plaintiffs. The reasons given for such conduct on the part of the defendants were, that the Messrs. Seymour and Co., exclusive of Mr. Gamman, were the sole agents of the defendant Mr. Delandes; that as such sole agents they had prior to the return of the ship on the 21st Nov. entered into a contract respecting it with a Mr. Griffiths; that in pursuance of that contract either Mr. Delandes or Mr. Griffiths were to have the right to ship goods on board the Just, and that the plaintiffs, when the charter-party of the 24th Nov. was signed by Mr. Chinery, were well aware of the " engagements" by [MARI. CAS.] The MASTER of the ROLLS.-Mr. Palmer, I need not call on you for a reply. I am of opinion that this injunction should be continued, and that this court has an undoubted jurisdiction in such a case as this. Here is the absolute owner of a vessel-holding, that is to say all the 64th shares into which the interest in a ship is divisible, holding them free from any mortgage or charge whatever, so far as I see; and that absolute owner of that ship enters deliberately into a charter-party with the plaintiffs, by which he agrees with them that they shall have the chartering of this vessel on a voyage to Africa and back, and that no goods or passengers shall be taken on board but for them, and with their written consent. There is no sort of suggestion that this charter-party was improperly obtained, and it has not been denied on either side that the charter-party of the B C. B.] POLE AND OTHERS v. CETCOVITCH. [C. B. damage alleged to have been sustained by the plaintiffs in consequence of the defendant having refused to proceed with his ship and her cargo to Copenhagen, in pursuance of an agreement indorsed upon a charter-party entered into between them, and by which he (as alleged by the plaintiffs) was bound so to proceed. The cause was tried at Guildhall last Trinity Term, before Erle, C.J., when a verdict was found for the defendant. The plaintiffs and the defendant agreed by charter-party that the defendant's ship, which was at Gloucester, should, after discharging her outward cargo, proceed to Havannah, and should there load from the factors of the plaintiffs a cargo of sugar or other merfor orders, and thence as ordered, to a safe port within certain limits mentioned in the charter-party, and deliver the same on being paid freight; the act of God, restraint of princes and rulers, the Queen's enemies, fire, and all other dangers and accidents of the seas and navigation, of whatever nature and kind 24th Nov. last is the one in dispute, and which was signed by Mr. Delandes, and signed by him after he had communicated with his agents, the other defendants Messrs. Seymour and Co. I apprehend it is clear law, that if a charter-party is bona fide entered into, either party to it is entitled, on a sufficient case made, to an injunction from the court to restrain the other from infringing the provisions of their contract, and if there does not appear -as I do not see that here there does appear-anything | to impeach or invalidate that contract, the onus of proof to resist the injunction must lie upon the defendants. But what proof has been adduced in this case? It was contended that Messrs. Peacock and Co. were not bound by Mr. Delandes' acts. I do not accede to that. Ichandise, and then proceed to Cowes or Falmouth think they were undoubtedly bound by the act of their principal. Again, it was urged that certain engagements had been previously made by them-previously to the execution by Mr. Delandes of this charter-party-and that the plaintiffs were then aware of those engagements, and of their being binding upon the vessel in their hands. But the evidence as to those engage-soever, during the said voyage, always excepted. The ments, whatever they may have been, is contradictory; and even assuming for a moment that there were any such, or any such as the defendants contend, I am not at all prepared to say that they would confer any right to the carriage of goods in this vessel as against the express terms of this charter-party. If any one else is injured by the contract between these parties it is for them to consider their remedy. I think this injunction should be continued so as to restrain any act of Mr. Delandes or his agents which may be inconsistent with the terms of the charter-party of the 24th Nov. last. POLE AND OTHERS v. CETCOVITCH. Charter-party-Captain of Austrian vessel to go to certain ports as ordered by charterers-Refusal by captain to sail to a certain port, as there were cruisers belonging to France (then at war with Austria) in his way, by whom he would, in all probability, be captured. The defendant was the captain of an Austrian vessel, which was chartered by the plaintiffs prior to the war between France and Sardinia and Austria, but which broke out before the charter-party was terminated; while the war was going on the captain, who was at Falmouth, was ordered by the charterers to go to Copenhagen, which he said he could not do then, but must go somewhere else, or wait till the war was over, as he should be captured by the French cruisers; and he was eventually ordered to go to Plymouth: Held, first, that he was justified in thus delaying; and secondly, that the last order was a revocation of the original one, and therefore there was no breach of contract. This was a rule calling on the defendant to show cause why the verdict found for him should not be set aside, and a new trial had, on the ground that the judge ought to have directed the jury that, upon the facts and letters proved, there was a breach of contract by the defendant; and that he ought not to have left to them, as a ground of their verdict, whether the defendant was justified in pausing and making a stay until he received further definite orders; and also on the ground that the verdict was against evidence. The action was brought by the plaintiff's (trading under the name of Van Notten and Co.), merchants in London, against the defendant, who is the master of an Austrian vessel, to recover compensation for the ship accordingly went to Havannah, and there loaded a cargo of sugar, with which she proceeded to Falmouth, where she arrived on the 18th June 1859; at this time the war was going on between France and Austria. On the 28th of the same month, the defendant received a telegraphic message from the plaintiffs, through their agents at Falmouth, ordering him to proceed with his ship to Copenhagen without delay, and on the following day he also got a letter from the plaintiffs to the same effect. To this the defendant replied, that it would be madness for him to attempt to obey the order, as the French cruisers were on the look out, but that he must either wait at Falmouth until the termination of the war, or that he would tranship the cargo into some other vessel. The defendant then communicated with the broker in London, through whom the charterparty had been effected, who saw the plaintiffs, and offered to make an allowance in the freight if the voyage was terminated at Falmouth, or do what the defendant had already offered. These offers were refused by the plaintiffs, but they instructed an agent (Mr. Wiltshire) to see the defendant, who eventually ordered him to proceed to Plymouth and there deliver his cargo, under protest, which the defendant refused to do, but said that if the plaintiffs gave him a clean order he would go. The agent then gave him an order to go unconditionally to Plymouth, and handed him the following letters: "London, June 30, 1859. "Capt. Cetcovitch, of the Osvetitel, from Havannahı. "Dear Sir,-We request you to follow the instructions of Mr. A. G. Wiltshire as to your final port of destination. We are, &c., "P. AND C. VAN NOTTEN AND Co." "Falmouth, July 2, 1859. "Sir,-In accordance with the above authority, I have now to request you to proceed without delay to Plymouth, and to deliver your cargo to the holder of your bills of exchange. "A. G. WILTSHIRE." In pursuance of these orders the captain accordingly proceeded to Plymouth; the cargo was delivered and the freight paid, and on the 18th July the writ was issued. The 3rd, 4th and 5th pleas were :-3. Denial of breach. 4. Revocation of the order before breach. 5. Accord and satisfaction. Montagu Smith, Q.C., Watkin Williams (with him) showed cause. They cited Avery v. Bowden, 6 E. & B. 593. Bovill, Q.C., and Honyman in support of the ruleThe captain refused to go, and he gave no reason justifying such refusal; the question is, was the captain guilty of a breach of contract? We contend that he was. [BYLES, J. referred to Paradine v. Jane, Alleyne, 26.] BYLES, J.-This rule was obtained on the grounds that the learned judge was wrong in not directing the jury that upon the facts and letters there was a breach of contract by the defendant, and that he ought not to have left it to the jury to say whether the defendant was justified in delaying and making a stay until he received definite orders. Now it was insisted upon that the judge ought to have told the jury that there had been a breach of the contract; but that is not so upon the construction to be put on the letters which, in connection with other documents, where offered in evidence. The mere case of threatening not to go is no breach of the contract. I should have thought that in this case the delay was reasonable. And, as it was [Ex. CH. ERROR FROM THE COMMON BENCH. Saturday, Nov. 30. well put by the learned counsel, suppose, at the (Before COCKBURN, C.J., WIGHTMAN and BLACK says, time that the captain received his orders to sail, a storm was raging, surely he would not be obliged to go at once; and so in the case where an enemy's fleet was outside the harbour, and the captain knew that he would be sure to be taken by them, in that case could it be said that it was his duty to go out and not wait? The defendant "Let me know what your ultimate decision is," and the plaintiffs decide that he should go to Plymouth. This order he received on the 29th, and after having refused to the agent to go unless he had a clean order, obtains such order and sails on the 30th. Does it lie in the power of the plaintiffs to say that there was a breach of contract when they ordered him to go to Plymouth, and which he might well have understood to have been a waiver of the order to go to Copenhagen? It seems to me that the judge was right in leaving it to the jury to say whether the defendant was justified in pausing. I think that he was justified, and that the case of Avery v. Bowden is an authority in his favour. It was a question of fact for the jury, and I think there is no ground for a new trial, and that if it was sent down again the jury would find in the same way, and consequently it would be productive of no good. The rule, therefore, must be discharged. KEATING, J.-I am of the same opinion, and should be very sorry to interfere with the rule of law, that a man who enters into a contract must perform it. Here we must observe that the contract is not to do something on a particular day, but the defendant was to go to Falmouth and wait there for orders, and he does so, and is directed to go to a port to which, under the circumstances, he would not be likely to get safely; then a discussion takes place and the defendant speaks strongly, although he does not positively refuse to obey; now, it seems to me, that whether that which took place amounted to a breach of contract or not, was a question for the jury. It has been contended that the judge was wrong in leaving it to the jury to say whether the captain was justified in pausing; but I think he could not have otherwise left it. The case was tried before a special jury perfectly conversant with the rule of law, that a man must do what he contracts to do, and they found that the captain was justified; and they were right in finding in his favour on the third plea. Then as to the fourth plea, it was open to the consideration of the jury, whether being dispatched to Plymouth was evidence of a revocation of the original order, and they found that it was; on both points, therefore, they have found for the defendant, and the Chief Justice is satisfied with that finding. BURN, JJ. and MARTIN, BRAMWELL and CHANNELL, BB.) SEEGUR v. DUTHIE AND OTHERS. (a) Charter-party-Conditions precedent-Demurrage Set-off. By a memorandum of agreement made between the plaintiff, part owner and captain, and the defendants, the charterers of a ship, and signed by the parties, but not under seal, it was provided, amongst other things, that the said ship should load in the London-docks, and there receive all such goods as might be required by the said charterers, and should therewith proceed to Geelong; that the captain should attend daily at the broker's office to sign bills of lading; that the whole of the ship should be at the disposal of the charterers for the conveyance of goods and specie, and if gunpowder was to be shipped, it should be put on board where ordered below Blackwall, as was the custom; in consideration of which the charterers agreed to pay freight for the hire of the ship 14001, with a gratuity of 251. to the master, payable before leaving London; the freight was to be paid as follows:So much as may be payable in the colony by bills of lading to the extent of 8001., to be taken and received in part payment, and balance 600l. in cash, less seventy days' discount from date of clearing from London-forty running days to be allowed the charterers, Sunday and holidays excepted (if ship not sooner dispatched), for loading the ship, to commence from the date of her being ready at her loading berth to receive cargo. It was further agreed that the ship should be ready to sail at the expiration of the laying days, or sooner if required by the charterers; if ship not ready, either on owners' or charterers' part, at the above-named date, then demurrage to be paid by party in default at the rate of 71. per diem; the ship to be ready on or before the 10th Nov., or the charterers to have the option of cancelling the agreement. Penalty for nonperformance of the agreement, 1400l.; charterers to have the Held (affirming the decision of the court below), that the option of shipping acids on deck: stipulation that the captain should attend daily at the broker's office to sign the bills of lading, and also to receive goods on board, were not conditions precedent to the right of the owner to sue for freight: Secondly, that the defendants could not set off their claim for demurrage owing to the delay occasioned by the captain bonâ fide refusing to take acids and gunpowder on board. Declaration for freight for the conveyance by the ERLE, C. J. -I am also of opinion that this rule should be discharged. It cannot be said that demurrage of a ship of the plaintiff kept on demurrage plaintiff for the defendants, of goods in ships; and for a captain who, under his charter-party, is to wait by the defendants; and for use and hire by the defenfor orders from his charterers, is bound to sail the dants of plaintiff's ships; and for money agreed to be moment he gets his orders; for, suppose he gets a telegram from London ordering him to sail, and he knows paid by the defendants to the plaintiff for the privisomething which the owners do not-for instance, that leg of putting certain goods on board a ship of the a hostile fleet is in the offing, and that if he goes out plaintiff to be conveyed to their destination, and which he is sure to be captured-surely under these circum-goods were shipped accordingly; and for a gratuity stances he is not bound to start. Then the charterers (a) This case is reported in 36 L. T. Rep. 483, C. B. agreed by the defendants to be paid to the plaintiff as master of a certain ship, under a charter-party of such ship, made between the plaintiff and the defendants; and for money paid and accounts stated. Pleas:-Never indebted; payinent; set-off for goods sold and delivered, work and materials, money lent, money paid, and money agreed by the plaintiff to be paid by him to the defendants, by way of demurrage for default in readiness of the said ship under the said charter-party; for interest and accounts stated. Issues joined thereon. The plaintiff was captain and part owner of the Von Laffert Lehsen, chartered by the defendants to proceed to Geelong in Australia, on the terms set out in the memorandum of agreement (vide marginal note) signed by both parties, but not under seal. On the 5th Nov. 1857 the ship was ready to receive cargo at her berth in the London-docks, and the plaintiff gave notice thereof to the defendants, and that the laying days would commence next day. Thereupon the loading of the ship began. The plaintiff, who was and continued to be the captain of the ship, attended several times at the broker's office to sign bills of lading as customary; but did not attend there daily, and was some time absent on the continent. Amongst the lawful goods which the defendants required the plaintiff to load were a number of cases of lucifer matches. These goods were brought alongside the ship on the 18th Dec., and tendered for loading; but the plaintiff refused to receive them on board with acids, and they were therefore conveyed back to the warehouse. The defendants remonstrated by letter, and next day these goods were again sent alongside, and tendered for loading, and again refused by the plaintiff, and conveyed back to the warehouse. Some correspondence followed; and in the end plaintiff allowed the goods to be taken on board. All the cargo was loaded by the 24th Dec., with the exception of a ton and a-half of acids, which the defendants had notified their wish to have shipped on deck; and three tons of gunpowder, shipped below Blackwall according to the charter-party and on the 26th Dec. the ship was cleared at the Custom-house. The plaintiff refused to receive the acids and gunpowder, on the ground that the ship could not safely stow and carry more cargo than was already on board, ard gave notice to the defendants that the ship was ready to proceed to sea as soon as the ship's papers were handed by the defendants to the plaintiff. The defendants refused to give the papers, and said that the ship should not go till the acids and gunpowder were taken on board. The ship was surveyed on behalf of the plaintiff and defendants, and on the 6th Jan. 1858, in consequence of the surveyors previously employed having disagreed, Lloyd's surveyor was instructed to survey the ship, for the purpose of ascertaining whether she was sufficiently laden, and the same day he certified that she could safely carry ten tons more cargo; and thereupon the plaintiff signed bills of lading for the acids, and afterwards the gunpowder, and then sailed with the ship on the 14th Jan. for Geelong. : The defendants admitted that the refusal of the captain to receive the acids was made bonâ fide. The defendants paid to different shippers of goods 167. 188. for demurrage and expenses owing to the delay in loading, and also a further sum of 41. 4s. to surveyors. For the defendants it was contended that the plaintiff was not entitled to recover on the charter-party in respect of the money payable in London, because he had not performed the stipulations which, according to the charter-party, were to be first performed on his part, nor on any implied contract, because such contract would enure to the owners, of whom he was only one; nor in indebitatus assumpsit, because the condition was not executed, and the express contract was still open and unperformed; that if he was entitled to [Ex. CH. recover in indebitatus assumpsit, it could only be on a quantum meruit, following the scale of remuneration stipulated for, with deductions for the failure of the performance of the stipulations on the plaintiff's part; and that the defendants were entitled to set off 1681. for twenty-four days' demurrage, the laying days having expired on the 23rd Dec. 1857, and the ship not having sailed till the 14th Jan., owing to the plaintiff's default. These points were reserved by the Lord Chief Justice for the opinion of the court; a verdict was found for the plaintiff, subject to leave reserved for defendants to move to enter the verdict for them or reduce the damages. The case now came on in error. Grove, Q.C. for the appellants.-First, the condition was that lawful goods were to be received on board, and that the captain should attend daily at the broker's office, and these were conditions precedent to the payment of freight; secondly, that if the court be against the appellant on these points, yet he is entitled to demurrage of 71. per diem, and that sum he is entitled to set off: (Pordage v. Cole, 1 Wms. Saund. 320; Chaunter v. Lees, 5 M. & W. 698.) Honyman, for the respondent, was not called on. COCKBURN, C.J.-I am of opinion that the argument of the appellant on the first point entirely fails, for the same reasons as those given by the court below, and I think the appeal an idle one, and ought not to have been brought. As to the second point, the claim for demurrage is not within the terms of the charterparty. If there had been delay in sailing after the cargo had been stowed, there might have been good grounds for claiming demurrage; but this does not apply where the master declines to take goods which he thinks do not come within the terms of his charterparty, or when he thinks that he has not room to stow them. Such refusal might, however, be the subject of an action by the charterers. A claim for demurrage might be applicable in the case where there had been delay in stowing the cargo, but not where there had been a refusal by the master to take a cargo which bonâ fide he did not think was a proper one. MARTIN, B.-I am of the same opinion. As to conditions precedent it is laid down by Lord Tenterden's book (p. 266, edit. 1847): "Whether or not a particular covenant by one party be a condition precedent, the breach of which will dispense with the performance of the contract by the other, or an independent cove nant, is a question to be determined according to the fair intention of the parties, to be collected from the language employed by them. An intention to make any particular stipulation a condition precedent should be clearly and unambiguously expressed." think it would be absurd, and contrary to common sense, to be forfeited on account of the refusal and delay comsuppose that the parties intended that 14007. should plained of on the part of the shipowners. Then, as to the second point, the stipulation was, "that forty days to cominence from the date of her being ready at her should be allowed the charterers for loading the ship, loading berth to receive cargo, and if the ship be not ready on owners' or charterers' part, then demurrage to be paid by party in default.” "Being ready" means being ready with a crew to sail; here the master recould not be safely stowed, and although Lloyd's surfused to take certain goods on board, alleging that they veyor said they could, it has not been found as a fact whether he was right or wrong in his judginent. The refusal to take the goods, but the delay so caused cannot master might have been liable to an action for his be a good ground for claiming demurrage. WIGHTMAN and BLACKBURN, JJ. and BRAMWELL and CHANNELL, BB. concurred. Judgment for the respondent. |