Scottish Court of Session Decisions

This was an action by John Broadhead, master of the ship “Puck,” against T. B. Yule, merchant, Leith, concluding for £45, 7s. 9d., as a balance of an account-current between them. The defender denied that he acted as agent for the pursuer in collecting freight, or in any other matter than as broker in the ship's customhouse business; and he explained that “the ‘Puck’ was chartered by Messrs Scott & Allan of Leith by charter-party, dated 13th April 1870, to convey a cargo of wine and other lawful merchandise for Yarmouth and Leith, the freight payable by the charterers on the right delivery of the cargo being at the rate of 32s. per imperial ton of 252 gallons of wine delivered for what she could carry; but the captain was to be obliged, without prejudice to the charter, to sign on presentation bills of lading, at any rate of freight which the charterers could succeed in obtaining, and the ship was to be addressed to the charterers' agents in Cadiz, Yarmouth, and Leith; that the ship was accordingly addressed to the defender in his capacity of agent in Leith for the charterers; that on the out-turn of the cargo it was found that one butt of wine, of the estimated value of £45, received by the pursuer in good order and condition at Cadiz, had been crushed by the pursuer during the voyage, through the fault of the pursuer or those for whom he is responsible, and that the pursuer had failed to carry the same in safety, in terms of his contract of carriage. The charterers declined to authorise the defender to settle the freight on their behalf, except on the footing of his retaining in his hands on their behalf the £45 to settle the price of the said butt of wine; and to this the pursuer consented. An account upon this footing was accordingly made up by the defender, and the balance appearing therein was paid to the pursuer on 29th July 1870, as per receipt produced. That subsequently to that date the charterers, through the defender, succeeded in effecting an arrangement regarding the said butt of wine, whereby Messrs Wauchope, Moodie, & Hope, of Leith, the owners thereof, accepted in full £33, 7s., and the difference betwixt that sum and the £45 in his hands the defender, though in nowise bound to do so in a question with the present pursuer, has all along been willing to pay to the pursuer, and offered to do so before the service of this action.”

The Sheriff-Substitute ( Hamilton), after a proof, pronounced the following interlocutor:— “Finds the defender, as broker, or otherwise acting for the pursuer, collected the freight due to the pursuer under the charter-party, and that he is bound to account to him therefor; Finds that the items of the account annexed to the summons are not objected to; Finds that the sum of £33, 7s. mentioned in the minute of defence, does not form a proper charge against the pursuer, the same having been paid to Messrs Wauchope, Moodie & Hope without the pursuer's knowledge or authority: Therefore, and with reference to the foregoing findings, decerns against the defender in terms of the libel: Finds the pursuer entitled to expenses, allows an account, &c.

“ Note.—This is a very clear case. By the charter-party with Messrs Scott & Allan the pursuer was to be paid freight at the rate therein mentioned on delivery of the cargo; and although there was a clause binding the master to sign bills of lading at any rate of freight which the charterers could obtain, yet, as this was to be without prejudice to the charter, the pursuer's right of lien remained complete, and he was not bound to give delivery of any particular portion of the cargo except upon payment of the freight stipulated in the relative bill of lading. In collecting and granting discharges for the freight due by the various consignees, the defender necessarily acted as the pursuer's broker or agent, and was bound to account to him in the first instance, and not to the charterers. Accordingly, in the account-current which he rendered to the pursuer after the discharge of

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the cargo, he expressly debits himself with the amount payable to the pursuer under the charter-party, thus negativing by anticipation the defence now stated. As the defender admittedly settled with Messrs Wauchope, Moodie & Hope without authority from the pursuer, and indeed without communicating with him, he is not in this action entitled to obtain credit for the sum so paid.”

The Sheriff ( Davidson) adhered.

The defender appealed.

Trayner for him.

Scott for the respondent.

At advising—