Scottish Court of Session Decisions

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Cite as: [1868] SLR 6_357, [1868] ScotLR 6_357

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Friday, February 19. 1868.

Lord President

6 SLR 357

Kenneth

v.

De Caen.

Subject_1Ship—Freight—Shortshipment—Carrying Capacity—Proof.
Facts:

Circumstances in which held that a charterer had failed to prove an alleged shortshipment, in respect of which he claimed a deduction from the stipulated freight.

Headnote:

De Caen, owner of the ship “ Prince of the Seas,” chartered her, in December 1864, to Kenneth, a ship broker in Glasgow, for a voyage from Glasgow to Buenos Ayres, guaranteeing the ship to carry 550 tons dead weight. The voyage having been completed, the owner claimed the stipulated freight, and certain extra payments on account of demurrage and otherwise. The freighter claimed, inter alia, a deduction on account of an alleged shortshipment of 70 tons.

After a proof, the Sheriff-substitute (Dickson) pronounced this interlocutor;— “ Finds— (1) with regard to the first item in the account appended to the summons, that the pursuers chartered to the defender the ship ‘Prince of the Seas’ to perform a voyage from Glasgow to Buenos Ayres, in January 1865, for a slump sum of £1050, the pursuer
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guaranteeing the said ship to carry 550 tons dead weight: Finds that the voyage was completed, and that the pursuer claims the said sum, but allows deduction of £16, 10s. 9d. on account of the freight of certain crates short-shipped; and that the defender claims deduction therefrom of £133, 12s. 9d. on account of 70 tons of goods which he alleges were short-shipped on account of the vessel having carried only 479 tons 9 cw t: Finds that the defender has not proved the said short-shipment of 70 tons, and that the pursuer, on the other hand, has proved that the vessel carried a full cargo of 650 tons: Accordingly sustains the pursuer's claim to £1050, under deduction of the £16, 10. 9d. above mentioned. (2) With regard to the pursuer's claim of £49 for demurrage, finds that by the charter-party it was agreed that 35 running days were to be allowed the freighters for loading, and that the parties afterwards agreed that the said days should commence to run from 12th December 1864: Finds that the said loading was completed on the afternoon of the 14th of the following month of January, being within the period so afterwards agreed upon, but that the vessel did not go to sea on her said voyage till the 19th of the said month; Finds that it is not proved that the delay till that time was occasioned by the fault of the defender; accordingly assoilzies him from the conclusions so far as regards the said claim. (3) With regard to the pursuer's claim of £4, 7s. 6d. for watching the defender's goods when on the quay, finds that the said sum was expended by him for the said purpose, but that it is not proved that it was so expended with the defender's authority, or that the said watching was necessary for the safe keeping of the said goods, or that it is the practice of the port for the owner or master of a vessel when loading cargo to appoint watchmen at the freighter's expense over the cargo remaining on the quay: Finds, further, that the said cargo, while on the quay, was at the defender's risk, and that it lay with him, not for the pursuer, to determine whether a watchman should be put over it at his expense: Accordingly assoilzies the defender in so far as regards the said claim. (4) With regard to the claim of £5 for shifting the ship, finds that the pursuer has not proved the same; and farther, that his procurator abandoned the same at the debate: Accordingly assoilzies the defender from the conclusions in relation thereto: Farther, with regard to the defender's counter-claim, finds— (1) that he has proved that he paid £31, 4s. 6d. to the stevedore for loading the cargo, and that the said sum falls to be repaid to him by the pursuer in terms of the charter-party: Accordingly sustains the same as a counter-claim for the defender in this case; (2) Finds that the defender has not proved that he is entitled to £15, 15s. 2d. on account of commission on the charter-party, and accordingly refuses to sustain the claim therefor; (3) Finds that in the account appended to the summons the pursuer gives the defender credit for the other items in the defender's counter-account, No. 75 of process, with the exception that the pursuer allows £3, 5s. in name of discount, instead of £4 as stated in the said counter-account: Finds that the defender has not proved that he is entitled to the larger of these sums, and accordingly refuses to sustain his claim thereto; sustains the same to the said extent of £3, 5s.: Finds that the accounts between the parties having been adjusted on the footing hereinbefore set forth, and after giving the defender credit for the sum of £7, 2s. 4d. consigned by him, there remains due by the defender to the pursuer the sum of £133, 2s. 5d .: Accordingly finds the defender liable to the pursuer in the sum last mentioned, with interest as libelled: Finds the pursuer entitled to expenses, but subject to a modification of one-third of the taxed amount thereof: Appoints an account to be lodged, and remits the same to the Auditor to tax and report, and decerns.”

The Sheriff (Bell) adhered.

The defender appealed.

Clakk and Lancaster for appellant.

Shand and Balfour for respondent.

At advising—

Judgment:

Lord President— This is a pure question of fact, and I cannot say that the evidence is so satisfactory as it might have been. Our judgment must depend a good deal on where the responsibility of that unsatisfactory state of the evidence is found to rest.

The question is, whether this vessel was of the carrying capacity of which she was guaranteed to be by the charter party? The allegation of the defender is that she fell short of that by 70 tons, and that he shipped as much cargo as the owner and master would receive, and that the amount of that was less by 70 tons than was guaranteed. In the first instance, it may be fairly said that it lies with the owner to prove the real tonnage. He did assume that onus, and I think that in the first instance he discharges it pretty fairly. He had been owner of the vessel for a good many years, and so also the master had held his post for some time. They must have known her carrying capacity, and what weight of cargo she had on board when drawing the amount of water she ought to draw. They are both distinct on this point, that the tonnage was 550 tons. I cannot say there is any serious attempt to shake the evidence. As far as direct evidence is concerned, the carrying capacity of the vessel is not proved to be less. But there is another support to the pursuer's evidence. The new measurement of the vessel is 380 tons, and it is a genera], though a rough rule, that about a half more represents the actual carrying capacity. That no doubt depends on the build of the vessel, but it is not proved that this was a vessel of such a build that the rule could not apply, or that the proportion of carrying capacity to the measurement would be smaller in this than in the average case. There is evidence in the other way, for one of the skilled witnesses not only gives his evidence as to the ordinary rules, but also speaks as welt acquainted with the vessel as one to which that rule applies. That is quite sufficient for the pursuer's case in the first instance, and throws the burden of proof on the defender.

Now, what is the defender's evidence? It appears to consist very much in this— an appeal to the weighing of the cargo for payment of tonnage dues in the Clyde, the result of which was to show by the receipt for the dues, the cargo to be 479 tons, 9 cwt. But I think it is proved that that is not a trustworthy piece of evidence, and that, as to the coal, there was a very serious error, and that throws a good deal of discredit on this document. Besides, I do not think this weight has been proved. An extract from the books is not in itself good evidence. You must bring the parties who weighed the cargo, and ascertain from them whether they weighed it according to the ordinary rules, and so on. As to the existence of any space

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in the vessel beyond that occupied by the cargo, that necessarily depends on the weight of the cargo. The cargo may not half fill a vessel though sufficient for the carrying power, and there is no doubt that a considerable part of this cargo consisted of heavy goods. Upwards of 300 tons was iron or coal in some shape. This therefore was plainly a heavy cargo, and the existence of empty space proves nothing for the defender. But I attach more importance to what is wanting in the defender's evidence, and which might have been supplied. It must be kept in view that the dispute arose as to the weight of the cargo before the vessel sailed from the Clyde, the master maintaining that the vessel was fully loaded, while the shipper maintained the contrary. This was a sailing vessel. There was one course open to the shipper which would have enabled him to prove his weight, and that was to write to his correspondent at the port of discharge to have the cargo weighed. But that he did not do, and I think it was his duty to procure that information as necessary evidence in support of his defence to the action for freight. I therefore adopt the findings of the Sheriff-substitute, which I think very well express the result of the evidence.

The other Judges concurred.

Counsel:

Agents for Appellant— Stuart & Cheyne, W.S.

Agents for Respondent— J. W. & J. Mackenzie, W.S.
1869