QUEEN'S BENCH DIVISION. Reported by M. W. MCKELLAR, J. M. LELY, and R. H. AMPHLETT, Esqrs., Barristers-at-Law. Friday, Feb. 11, 1876. LISTER V. VAN HAANSBERGEN. Charter-party-Undue detention in loading-Ex emption of charterer-Lien of owner. In an action by shipowner against charterer, there was a claim for undue detention in loading the ship. The charter-party contained a stipulation that as the defendant was acting on behalf of another party, his liability should cease as soon as the cargo was shipped, loading excepted, the owner and master of the vessel agreeing to rest solely on their lien on the cargo for freight, deand all other claims; which lien it was Murraye thereby agreed they should have. Held upon demurrer that, whether the owner's lien covered the claims in the action or not, the defendant was liable for all damage incurred before the cargo was completely shipped; and that the action was maintainable. THIS was an action by shipowner against charterer upon a charter-party, in the following words :Newcastle-upon-Tyne, 14th June, 1875. It is this day mutually agreed between Mr. John Lister, owner of the British or privileged good ship or vessel called the Antias of Hartlepool, of the burden of 13 keels or thereabouts, now in the river Tyne, and Messrs. Van Haansbergen and Usher of Newcastle-uponTyne, as agents to the freighters of the said ship, Messrs. A. Vander Leems, Son, and Co., for one voyage from the river Tyne to Rotterdam. That the said vessel, being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenient speed sail and proceed as directed by the said freighters and there load from the factor of the said freighter a full and complete cargo, consisting of four to five keels firebricks, and load up with Ramsay's Garesfield coke not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture, and being so loaded shall therewith proceed with the first opportunity and all possible dispatch to Rotterdam, and there deliver the same alongside any vessel, wharf, or warehouse as ordered, where she can safely deliver on being paid freight at and after the rate of 61. 5s. sterling per keel of 16 tons for the coke, at 71 10s. sterling per keel of 21 tons for the bricks for the quantity taken on board as aforesaid, and 21 2s. gratuity; the freighter paying all dues and duties on the cargo, and the ship all other charges. As soon as the cargo is shipped, the master to sign the bills of lading as presented without prejudice to this charter. This charter being concluded by the said Messrs. Haansbergen and Usher for and on behalf of another party, it is agreed that all liability of the former shall cease as soon as the cargo is shipped, loading excepted, the owners and master of the vessel agreeing to rest solely on their lien on the cargo for freight, demurrage, and all other claims, and which lien it is hereby agreed they shall have, and that the vessel is to be reported and cleared at the custom house at New. castle by the said Messrs. Haansbergen and Usher, and all money for charges or otherwise due by the owners or master shall be paid on the captain receiving despatches (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever during the said voyago always excepted). The freight to be paid on unloading and right delivery of the cargo in cash for ship's use, and the remainder by an approved bill on London at two months' date or all in cash equal thereto at master's option. Seven working days are to allowed the said merchants for unloading (if the ship is not sooner despatched) and demurrage to be paid over and above the said lying days at 21. per day penalty for non-performance of this agreement, amount of freight. VOL. III., N. S. [Q.B. Div. The vessel to be addressed to the charterer's agent at port of discharge paying the usual brokerage only. By authority of owner. J KNOTT, ppro JAMES THOMPSON. As agents VAN HAANSBERGEN and USHER. Witness, J. A. HAVELOCK. The declaration set out the material parts of the charter-party, and averred that the plaintiff carried the said cargo in the said ship to Rotterdam aforesaid, and there delivered the same in accordance with the said agreement, and all conditions were fulfilled and all things happened and all times elapsed necessary to entitle the plaintiff to have the said charter-party performed by the loading the said ship unduly detained the same defendants on their part, and the defendants in beyond the proper time provided for the loading thereof, whereby the plaintiff was deprived of the use of the same, and incurred expense in keeping the same and maintaining the crew thereof. And for a second breach the defendant kept the said ship on demurrage fourteen days over and above the said periods so agreed upon for loading as aforesaid, and thereby became liable to pay to the plaintiff 281. for demurrage as aforesaid, and has not paid the same. In the 4th plea the defendant set out the charter-party verbatim, and said that at the time of the making of the said charter-party he, the defendant, (therein described as Messrs. Van Haansbergen and Usher), was agent for the said Messrs. A. Vander Leems and Co., therein mentioned, and that he (the defendant) loaded the said agreed cargo on board the said ship. The second breach of the charter-party alleged in the declaration was demurred to on the ground, amongst others, that no demurrage was chargeable for delay beyond the time for loading. And the fourth plea was demurred to on the grounds, amongst others, that the exemption of liability clause in the charter-party did not apply to loading and liabilities incurred in respect thereto; and the plea, whilst affirming that the defendant loaded the said ship, did not allege that he loaded it within the proper time and without delay; and the fact that the defendant was acting as agent did not, under the wording of the charter-party set forth, release him from the above-mentioned liabilities. Watkin Williams, Q.C. (with him Wright), argued for the plaintiff. The exemption of the charterer's liability is expressly barred with respect to loading; he must, therefore, be liable for all matters connected with the loading. It is not sufficient that he has completed the loading; he must have done it without delay and in reasonable time. Clauses of this kind have been discussed and interpreted in Bannister v. Breslauer, L. Rep. 2 C. P. 497 Gray v. Carr, L. Rep. 6 Q. B. 522; ante, vol. 1, p. 115; Francesco v. Massey, L. Rep. 8 Ex. 101; ante, vol. 2, p. 594; Kish v. Cory. I. Rep. 10 Q. B. 553; ante, vol 2, p. 593. Herschell, Q.C. contra.-The charterer upon this agreement is responsible only for the loading of the cargo, so that the shipowner may have an effectual lien to cover all his claims. The owner may satisfy the claim based upon the alleged breach of the charter-party by recouping himself upon his lien, and the charterer is not liable for delay or demurrage in loading. BLACKBURN, J.-I do not think we require a reply from the plaintiff. The words upon which L this question is raised seem to me to have but one meaning. The defendant has engaged that the vessel shall be loaded with a full cargo within a reasonable time; or if a particular time be actually specified, then within that time. There is a twofold obligation-first, to load a full cargo; 66 secondly, to do so within the time agreed. It is contended on the defendant's behalf that the charter-party gives a lien to the shipowner for every kind of claim, both liquidated and unliquidated; the words are "the owners and master of the vessel agreeing to rest solely on their lien on the cargo for freight, demurrage, and all other claims, and which lien it is hereby agreed they shall have." I have some doubt whether all other claims" can be held to cover the unliquidated claim for unreasonable delay; but whether they do or not, the previous words do not exempt the freighter from liability for such delay; they are, "This charter being concluded by the said Messrs. Haansbergen and Usher, for and on account of another party, it is agreed that all liability of the former shall cease as soon as the cargo is shipped, loading excepted." This means that, with respect to the loading, the freighter's liability remains as if there were no exemption, and it includes the delay which takes place before the cargo is completely shipped. It is not necessary to say whether this meant to exempt the freighter from liability for every claim which the owner can enforce upon his lien, for the simple and natural interpretation of the words clearly gives the owner a remedy against the freighter for loss incurred during the shipping of the cargo. The declaration, therefore, is good, and the plea is not a sufficient answer to it. Our judgment must be for the plaintiff. LUSH and QUAIN, JJ. concurred. Judgment for plaintiff. Solicitors for plaintiff, Gold and Son. Solicitors for defendant, Williamson, Hill, and Co., for Ingledew and Daggett, Newcastle. Monday, Feb. 14, 1876. OPPENHEIM v. FRASER. Ship and shipping-Sold note-Warranty-Condition precedent" Ship now at Rangoon." In an action brought by the vendors against their vendees for refusal to accept, evidence was given to show the circumstances under which the contract was made, and that it was of vital importance that the vessel should be in the port named at the time of making the contract. The jury found, that the condition "ship now at Rangoon," had not been fulfilled, and that it was a condition absolutely vital. Held, that it was rightly left to the jury to say under what circumstances the contract was made, and that the words " ship now at Rangoon amounted to a warranty justifying the defendant in saying that there had been a failure of performance of a condition precedent and in refusing to carry out the contract. Held further, that the finding of the jury was rightly taken as an element in enabling the court to say that the words amounted to a condition precedent. THIS was an action tried before Blackburn, J. and a special jury, at the Guildhall sittings after Trinity Term on the 26th Nov. 1875, for non-acceptance by the defendant of a cargo of rice according [Q.B. Div. to contract, and brought by the plaintiffs as vendors. The contract was made on the 12th Dec. 1873 for the purchase of 1500 tons of rice. At this time intense anxiety prevailed in India, and in consequence of the famine in Bengal, and the expected prohibition of exports from Rangoon to Europe, merchants would only buy such cargoes as were then being loaded in Rangoon, or were prepared with ships then at that port for the purpose of loading. So much of the contract as is material to this case was as follows: London, 12 Dec., 1873. Sold for account of Messrs. Oppenheim and Schrader to our principals, the cargo of rice consisting of about 1500 tons in bags, or such portion thereof as may arrive by the vessel, new crop, Rangoon per Coldinghame about- tons register- -Captain, now at Rangoon, to be shipped during Dec. 1873, or Jan. 1874, on the following conditions, &c. The Coldinghame was not at Rangoon at the time of the contract being entered into, but was then upon a voyage going to Rangoon. The defendants pleaded that it was a condition precedent that the ship should be at Rangoon on the date of the contract, and evidence was given on their behalf as to the then state of trade at Rangoon, as stated above. The jury returned a verdict for the defendants, intimating that the condition as to the ship being at Rangoon at the date of the contract not having been fulfilled, and that being absolutely vital, the verdict must be for the defendants. Blackburn, J. however gave the plaintiffs leave to move to enter judgment for them, taking the finding of the jury as one of the elements on which the motion was to be made. J. C. Matthew (with him Sir H. James, Q.C., Watkin Williams, Q.C., and Myburgh), moved accordingly. You are not entitled to incorporate the finding of the jury with the contract for the purpose of construing it. There is no authority for saying that what is found by the jury as to the importance of the vessel being at Rangoon can be so incorporated. The evidence tends to leave the construction of the contract with the jury, and however important it might be that the vessel should be at Rangoon, it is not that which indicates whether that is a condition precedent or not. The question is, what did the parties really agree upon according to the words of the contract apart from the evidence? [BLACKBURN, J. cited Graves v. Legg (23 L. J. 228, Ex.; 9 Ex. 709.] The evidence does not bring the case within Graves v. Legg (ubi sup.), in which case the name of the ship was the condition precedent; and an averment of the fact of the materiality of the name of the ship appeared on the pleadings. Evidence to show that "ship now at Rangoon was of special and specific significance at this particular juncture is inadmissibleit is purely a question of construction for the court, and there is no evidence of the purpose for which the contract was made. [LUSH, J.-Here there was express evidence of particular and exceptional circumstances; surely they could be brought forward to show the nature of the contract. [BLACKBURN, J. cited Behn v. Burness (3 B. & S. 751; 8 L. T. Rep. N. S. 207; 1 Mar. Law Cas. O. S. 178, 329; 32 L. J. 204, Q. B.)] There was no agreement between the parties that the words should be a condition precedent (Jackson v. The Union Marine Insurance Company, ante, vol. 2, p. 435; L. Rep. 8 C. P. 572; 31 L. T. Rep. N. S. 789; 44 L. J. 27, C. P.) If evidence was admitted to show the intention of the parties the document itself would be of no use, the same printed form of words between A. and B. would bear a different meaning than the same form between C. and D. The words themselves are not ambiguous, but the effect of them is. [BLACKBURN, J.—It is never a fact to go the jury what the words of a contract mean, but it is a fact to go to them under what circumstances are they made, and to what do they relate.] You cannot, by evidence make words a condition precedent, and there being no ambiguity what evidence was admissible? If it were mere matter of description you could not admit such evidence; for instance if a ship were described as having a figure head painted red. [LUSH, J.-That would be a condition precedent if it were shown that she was going among pirates who had a superstition never to attack ships with a red figure head.] The contract must be read in the writing in which it is expressed, and you cannot have the writing plus parol evidence. The question, too, is independent of whether the words may or may not be a condition precedent; the parties would have gained advantage by the resale of the rice whether this particular ship was in a port or not, and if the price had not gone down these words would not have been material: (Corkling v. Massey, ante, vol. 2, p. 18; L. Rep. 8 C. P. 395; 27 L. T. Rep. N. S. 636; 42 L. J. 153, C. P.) Benjamin, Q.C. (with him Cohen, Q.C. and Patchett) were not called upon for the plaintiffs. BLACKBURN, J.-The judgment must stand. In all cases we must consider the intention ex pressed by the words, and this must depend on circumstances. In construing a will you inquire into all the circumstances, and not what the testator means to say, but what does he mean under the circumstances. The same rule applies to contracts, with this difference: everything, all the circumstances of the testator's life, are relevant in the case of a will, but in a contract only those circumstances are relevant which both parties are speaking of at the time. The question is, what the facts are, of and concerning which they are speaking in using those words, and the question must be put what are the facts ? In this case the stipulation was made that the ship was "now at Rangoon." Now is this a mere stipulation or a condition precedent which would put an end to the contract? We must construe the contract according to the state of things known; we might differ as to whether there was reference to an ordinary state of things or not. I am not sure that I should have said under other circumstances that this was not a condition precedent; but, with the evidence and considering the state of the market, the prohibition expected against the import of rice, and other things, it is important to consider these. The ship being in the port at that time is all important; they I wanted rice, they did not want a right of action. F In Graves v. Legg (uhi sup.) the question was raised by pleading the material circumstances, and the object with which the contract was entered into was in the knowledge of both parties. Baron Parke there said it was material and essential to the case. In Behn v. Burness (ubi sup.) Williams, J. says the "question appears to be properly raised by the averment in the plea that the time and situation of the vessel were essential and material parts of the contract. On the trial of the LQ.B. DIV. issue joined thereon, it was no part of the judge's duty to leave to the jury any question as to the construction of the contract, or the materiality of any of its statements. It was his function to construe the contract with the aid of the surrounding circumstances found by the jury, and to decide for himself whether the statement that the ship was in the port, supposing it to be untrue, was an essential part of the contract, or a mere representation, and to direct the jury to find for the defendant or plaintiff accordingly. The question it would seem might also be raised by pleading the material circumstances (as was done in Graves v. Legg, 9 Ex. 709), on which the defendant relies as leading to the construction which the plea seeks to put in the instrument. Unless one or other of these modes were adopted, the court, in case there should be a demurrer to the plea, or on an application for judgment non obstante veredicto, would be precluded from taking the surrounding circumstances into consideration in aid of the construction. It is plain that the court must be influenced in the construction not only by the language of the instrument, but also by the circumstances under which and the purposes for which the charter-party was entered into." The course taken in Graves v. Legg (ubi sup.) was not adopted here, the circumstances not having been pleaded; but it was left to the jury to find those circumstances, and they did find that it was absolutely vital that the ship should be Rangoon on the 12th Dec. and that the defendants' evidence upon this point was true. Hence the verdict was entered for the defendants. The case is governed by Behn v. Burness (ubi sup.); this is in point, and we can not overrule it. MELLOR, J.-I am of the same opinion. In this case Behn v. Burness (ubi sup.) is in point. Evidence is not admissible to show that the parties meant something not expressed, but the circumstances under which the contract was made must be known. We do not admit the evidence to show what the parties intended, but to show what the words mean in reference to the circumstances. I think the judgment must stand. LUSH, J.-The words "now at Rangoon are capable of being construed in two ways, but they must refer to the circumstances under which the contract was made. It was for the jury to say what they were, and they have done so, and said they were of the last importance. The selling value of the rice was much affected by the fact of the vessel being at Rangoon or not, and the words must apply to the particular circumstances. Sir H. James says different words receive different interpretations in different contracts. This is so, and Behn v. Burness shows it. The verdict must stand. Judgment for the defendants. Solicitors for plaintiff, Messrs. Hollams, Son, and Coward. Solicitor for defendants, W. J. Foster. Feb. 16 and March 6, 1876. THIS AND OTHERS v. BYERS. Ship and shipping-Liability of charterer for delay in unloading caused by foul weather. Where a given number of days is allowed to a charterer for unloading, a contract is implied on his part that from the time when the ship is at the usual place of discharge he will take the risk of any ordinary vicissitudes which may occur to prevent his releasing the ship at the expiration of the lay days. By the terms of a charter-party a vessel was to proceed for a voyage from P. to a safe port in the United Kingdom with a cargo of timber, "sixteen working days to be allowed the merchants for loading the ship at P., and to be discharged at such wharf or dock as the charterer may direct, always afloat, in fourteen like days, and ten days on demurrage over and above the said laying days at 101. per day." The ship was loaded and ordered to M.; and, having arrived at the usual place of discharge, commenced the unloading. It was the duty of the master to put the timber over the ship, and form it into rafts, so that it might be conveyed away by the charterer. In the course of unloading bad weather came on, and as the rafts could not be formed, the charterer could not convey the timber away. A delay of four days was thus caused in discharging the ship, and the shipowners claimed 401. for demurrage: Held, that, as by the charter-party a given number of days was allowed for discharging the cargo, the charterer was, under the circumstances, liable for the delay in unloading the vessel, notwithstanding such delay was occasioned by bad weather. THE declaration alleged that in consideration that the plaintiffs would deliver to the defendant certain timber forming the cargo of and carried by a certain ship of the plaintiffs then lying_and being at a certain port, to wit, Stockton-on-Tees, and would allow the defendant fourteen laying days for the unloading of the same, and ten days on demurrage over and above the said laying days; the defendant promised the plaintiffs to pay to the plaintiffs freight on the carriage of the first timber from Pensacola to Stockton-on-Tees aforesaid at certain dates agreed on between the plaintiffs and defendant, and to discharge and unload the said ship within fourteen days from the day on which the master of the said ship should signify his readiness and willingness to unload, and to pay 10l. per day demurrage for each demurrage day that the said ship should be detained by reason of the defendant not unloading the same over and above the said fourteen laying days. Breach that the defendants did not unload and discharge the said ship within the time so agreed upon as aforesaid, but kept the same on demurrage over and above the said fourteen days for a long time, to wit ten days, on demurrage, and the defendant thereby became liable to pay, but has not paid, to the plaintiffs demurrage at the rate aforesaid for ten days, and the defendant also detained the said ship one day without any payment or satisfaction to the plaintiffs on that behalf, whereby the plaintiffs were deprived of the use of the said ship during that time, and incurred expense, &c. There was also a count for money payable for demurrage of a ship. Fourth plea to first count.-That defendant was prevented from unloading and discharging the ship solely by the acts and defaults of the plaintiffs and their agents on that behalf. The case came on for trial before Grove, J. and a special jury, in London, during the Michaelmas Sittings, 1875, when the following facts were proved. The plaintiff was a shipowner, and the ac [Q.B. DIV. tion was for eleven days' demurrage, and 17. 14s. 6d. for extra dock charges. By the charter-party dated Jan. 31st, 1874, the Norwegian vessel Singleton, chartered by Messrs. Price and Pierce as agents, was to proceed to Pensacola with all convenient speed to load a full cargo of timber, and being so loaded to proceed to any safe port in the United Kingdom; sixteen working days to be allowed for loading, "and to be discharged at such wharf or dock as the charterers may direct, always afloat, in fourteen like days, and ten days on demurrage, over and above the said laying days at 10l. per day." The bill of lading incorporated the terms of the charter-party, and was indorsed by the captain. In pursuance of the charterparty the vessel proceeded to Pensacola, and was there duly loaded (bills of lading being presented and signed by the captain), after which she proceeded by order of the defendants with the cargo to Middlesborough. She arrived at the usual place of discharge on Sunday, the 28th of June, 1874, and was ready to discharge her cargo to the defendants, by whom the freight was paid the following day-viz., the 29th. The time for discharging expired on the 14th of July, but the vessel was not in fact discharged till the 25th. The vessel was thus kept eleven days beyond the time; but, as the delay of three of these days was admitted to be due to default on the part of the plaintiff, a verdict was ultimately found for the plaintiff for 817. 14s. 6d., being eight days' demurrage at 101. per day, and 17. 14s. 6d. for extra dock charges. As regards four of these days it was admitted that the delay in unloading was occasioned by bad weather which prevented the master, as was his duty, from putting the timber over the ship and forming it into rafts, and that the charterer was in consequence unable to take the timber away. The learned judge accordingly gave leave to the defendant to move to reduce the verdict by 401., if the court should be of opinion that on the true construction of the charter-party the defendant was not responsible for delay occa sioned by bad weather. The case now came on for argument. Russell, Q.C. and E. Pollock for the defendant (the charterer).-There is not an absolute contract in the part of charterers or consignees to unload within a stipulated time where they are prevented therefrom by something beyond their control. Here the inability to unload arose from something which prevented the plaintiff's themselves from performing their duty of putting the timber over the ship's side. Ford v. Cotesworth, L. Rep. 4 Q. B. 127; Ib. 5 Q. B. Abbot on Shipping (11th edit.), 269; Randall v. Lynch, 2 Camp. 356; 12 East, 179; Dobson v. Droop, 4 C. & P. 112. Herschell, Q.C. and Webster for the plaintiffs. -Where the number of lay days is fixed the discharge must take place within those days, or the consignee or charterer is responsible, unless the delay was occasioned by the default of the shipowner. The delay here was delay out of the control of either party, and for this the defendant must pay. Brown. Johnson, 10 M. & W. 331; 11 L. J. 373, P. 313; 18 L. T. 3 Mar. Law Cas. Fenwick v. Schmalz, L. Rep. 3 C. Rep. N. S. 27; 37 L. J. 78, C. P.; O. S. 64; Tapscott v. Balfour, ante, vol. 1, p. 501; L. Rep. 8 C. P. 46; 42 L. J. 16, C. P.; 27 L. T. Rep. N. S. 710; Ashcroft v. Crow Orchard Colliery Company (Li mited), ante vol. 2, p. 397, L. Rep. 9 Q. B. 540; 43 L. J. 194, Q. B.; 31 L. T. Rep. N. S. 266; Barker v. Hodgson, 3 M. & S. 267; Barrett v. Dutton, 4 Camp. 333, Cur. adv. vult. March 6.The judgment of the court (Blackburn, and Lush, JJ.) was delivered by LUSH, J.-This is an action for demurrage. The verdict was entered for the plaintiff for 81l. 148. 6d., leave being reserved to the defendant to reduce the amount by 401., being for four days detention at the stipulated rate of 10l. per day; and the question is whether, when a charter party allows a given number of days for discharging the cargo, the charterer or the ship's owner takes the risks of casualties in the weather, which interrupt the process of unloading. The charter-party was for a voyage from Pensacola to a safe port in the United Kingdom, as ordered, with a cargo of timber. The clause upon which the question turns is in these words: "Sixteen working days to be allowed the said merchants (if the ship is not sooner dis patched) for loading the ship at Pensacola; and to be discharged at such wharf or dock as the charterer may direct, always afloat, in fourteen like days, and ten days on demurrage over and above the said laying days, at 10l. per day." The ship having been ordered to Middlesborough, arrived at the usual place of discharge in the river, and commenced the unloading. It was the duty of the master to put the timber over the ship, and form it into rafts; and the charterer was to take the rafts away. In the course of unloading bad weather came on, and though the ship did not leave her anchorage, the rafts could not be formed, and the charterer could not consequently do his part in taking the timber away. The bad weather caused a delay of four days in discharging the ship; and the contention of the defendant was, that as he was not in default, but was ready to receive the timber, but the master was not ready to deliver it, the time lost in consequence of the bad weather ought not to be reckoned as part of the fourteen days. We took time to look into the authorities, and are of opinion that where a given number of days is allowed to the charterer for unloading, a contract is implied on his part that, from the time when the ship is at the usual place of discharge, he will take the risk of any ordinary vicissitudes which may occur to prevent his releasing the ship at the expiration of the lay days. This is the doctrine laid down by Lord Ellenborough in Randall v. Lynch (ubi sup.), which was upheld by this court; and it has been accepted as the guiding principle ever since: (see Leek v. Yates, ubi sup.; Harper V. M'Carthy, 2 W. R. 258; Browne v. Johnson, ubi sup, and the other cases cited in the argument.) The obvious convenience of such a rule in preventing disputes about the state of the weather on particular days, or particular fractions of a day, and the time thereby lost to the charterer in the course of the discharge, makes it highly expedient that this construction should be adhered to, [C.P. Div. whatever may he the form of words used in the particular charter. The judgment of the court will therefore be for the plaintiffs for the full amount. Judgment for the plaintiffs. Solicitors for the plaintiffs, Ingledew, Ince, and Greening. Solicitor for the defendant, Cree. COMMON PLEAS DIVISION. Reported by P. B. HUTCHINS and CYRIL DODD, Esq., Barristers-at-Law. Wednesday, Feb. 23, 1876. HOPPER v. BURNESS AND OTHERS. Charter-party-Sale of cargo at intermediate port -Freight pro ratâ itineris. Plaintiff chartered a ship to defendants to carry cargo for freight payable on delivery at the port of destination. The captain was obliged to sell part of the cargo at an intermediate port for necessary repairs. The price obtained was higher than it would have been at the port of destination. Plaintiff, having paid the proceeds of the sale to defendants under an average statement, claimed freight pro ratâ itineris on the cargo sold. Held, that defendants were entitled either to demand an indemnity for the sale of the cargo, or to treat the transaction as a forced loan, and demand the proceeds of the sale, and that having treated it as a loan, they were not liable to pay freight pro ratâ itineris. THE plaintiff's claim was for freight and money received. The plaintiff was the owner of the ship Verena, and he chartered her to the defendants to carry a cargo of coals from Cardiff to Point de Galle, in Ceylon. The freight was to be 21s. a ton on the quantity of coals delivered at Point de Galle, and if the quantity delivered should be less than the amount named in the bill of lading, the defendant might deduct the cost of the coals so deficient from the freight due. The defendants shipped a cargo of 704 tons of coal at Cardiff; the coals were by the bill of lading to be delivered to the order of the defendants. The invoice price was 1l. per ton. The ship sailed for Point de Galle, but met with bad weather off the Cape of Good Hope, and put in disabled. The captain, being unable to raise money on bottomry for the necessary repairs of the ship, sold 470 tons of coal at the Cape of Good Hope, which fetched 31. 3s. 6d. a ton, a considerably higher price than they would have fetched at Point de Galle. Forty-two tons of coal were jettisoned, and the ship, having been repaired, proceeded on her voyage, and the remainder of the cargo, 192 tons, was delivered at Point de Galle. The defendants afterwards employed Messrs. Davidson and Lindley, average staters, to draw up an average statement, and the plaintiff paid the amount which the average statement showed to be due from him to the defendants. The statement debited the plaintiff with the amount of the net proceeds of the coals sold at the Cape of Good Hope, but made no allowance to him for freight in respect of these coals. The plaintiff claimed to be entitled to freight pro ratâ itineris, in respect of the coals sold at the Cape of Goo |