Scottish Court of Session Decisions

This was an appeal in two conjoined actions, before the Sheriff of Edinburgh, sitting at Leith, the first, at the instance of the owners, for balance of freight of the steamer ‘Andalusia,’ from Caen to Leith; the second, at the instance of the charterers, for damages for breach of charter-party, and consequent loss of market. The second action was brought by the defenders in the first as a counter claim or set off.

The pursuers in the first action, William Gifford & Co., and William Gifford, the sole partner of that company, were ship brokers in Leith, and the defenders corn merchants there. The said William Gifford was the registered owner of the screw steamer ‘Andalusia’ of Leith. The pursuers entered into a charter-party with the defenders, who had a cargo of barley lying ready for shipment, under which the defenders chartered the said steamer for a voyage from Caen to Leith, with a full and complete cargo of barley, not over what she could reasonably stow and carry, and the defenders agreed to pay the pursuers the sum of £160 as a slump sum of freight for said steamer for said voyage, with £2, 2s. as the captain's gratuity. The terms of the charter-party, dated 12th October 1869, were as follows:—“That the said ship, being tight, staunch, strong, and every way fitted for the voyage, shall with all convenient speed sail and proceed to Caen, after discharging her present cargo and loading outwards for Caen, and there load a full and complete cargo of barley, in bulk not exceeding what she can reasonably stow and carry; and being so loaded shall therewith proceed to Leith. Four working days are to be allowed merchants for loading and discharging said cargo, to be reckoned from the date of the ship being ready to load and discharge. Mats, if necessary, to be furnished by merchants, and (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 voyage, always excepted) deliver the same to the affreighters or to their assigns, on being paid freight at the rate of £160 (say one hundred and sixty pounds sterling in slump sum, with two guineas gratuity to the captain).”

The amount of the defenders' barley lying at Caen was 1800 quarters, and this was known to the pursuers, and it was understood by them that it was the defenders' object to bring this cargo over to Leith. On the other hand, the defenders were given to understand by the pursuers that their vessel was capable of carrying that amount of cargo, and rather more. It was also in the view of both parties that Caen was a bar-harbour.

The ‘Andalusia’ accordingly proceeded to Caen, taking out a cargo of coals for behoof of the owners, and arrived there on 8th November 1869. On the 10th she was ready to take in her cargo of barley. On the 10th and 11th she took on board barley to the amount of 1175 quarters, whereupon the master refused to take on board the remainder of the defenders' cargo, or any part thereof, but dropped down the river, and crossed the bar upon 16th November.

When the vessel arrived on the 8th there was nearly 14 feet of water on the bar; on the 12th, when she dropped down the river, there was only 9 1 2; on the 16th, when she set sail, there was 12–3; and upon the 20th there was over 14. The vessel drew 13 1 2 feet with a full cargo.

The defenders, on the ground that there had been a breach of contract on the part of the pursuers in sailing without a full cargo, paid £80 to

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account, and declined to pay anything farther. The pursuers accordingly, holding that they had sailed with as full a cargo as they could reasonably carry, raised action for the balance of freight as per charter-party, amounting to £82, 2s.

On the other hand, as a counter claim, the defenders in the first action, Messrs Dishington & Co., raised an action of damages against the pursuers, Messrs Gifford & Co., in which they sued—(1) For the sum of £55, 16s. 5d., being the amount of extra freight paid by them to bring home the balance of their cargo of barley lying at Caen; and (2) for £84 as market loss on the said barley at 3s. per quarter, consequent upon a fall in the market during the delay,

These two actions were conjoined. The true question between the parties was whether the ‘Andalusia,’ in order to fulfil the contract contained in the charter-party, was bound to wait for the highest tide, and load as much as she was able safely to carry over the bar upon that day.

The following parts of the evidence are important:—Mr Gifford, of Messrs Gifford & Co., said on cross-examination—“I am shown letter from me to Mr Galway (his agent in France), dated 12th October 1869, copied in No. 75 of process, in which there occurs,—‘We have fixed the “Andalusia” for Caen at the rate of 8s. per ton for barley.’ I arrived at that rate by assuming that the ‘Andalusia’ would carry as a cargo of barley from 340 to 350 tons. I did not take quarters into account, or consider how many were to be allowed for the ton. At the time we were negotiating, I told Messrs Dishington that the ‘Andalusia’ could carry 1800 quarters of barley. I may have said that she could carry 2000 quarters. Messrs Dishington informed me that they had about 1800 quarters lying at Caen for shipment. Before Mr Traill left Leith it was agreed between him and me that if the ship could not take a full cargo of barley, she was to be filled up with light goods, so as to save detention at the bar. I do not remember whether ryegrass was mentioned. We talked about this matter both before and after the charter was concluded.… The depth of water at the Oesterham bar is from 9 to 14 feet. I consider that the ‘Andalusia’ was bound under this charter to take as much cargo as she could with safety carry over the bar at the highest tide. I think she might have so carried from 250 to 280 tons. Being referred to my letter to Mr Galway, of 8th November 1869, copied in No. 75 of process, when I speak of ‘getting over the bugbear of the bar in chartering’ I had in my mind the introducing into the charter a clause that the ship should not be loaded beyond a certain depth,—say 11 to 12 feet. On 8th November I telegraphed to Mr Galway ‘to load for the bar.’ I meant that he was not to load so deep as to cause a long detention. I meant that the captain was to take as much cargo as he could cross with at the highest tide with safety. I knew that to wait for the highest tide might cause detention for some days.”

Thomas Dishington, senior partner of Messrs Dishington & Co., deponed—“In October last our firm purchased 1800 quarters of barley in Caen, and negotiated to charter a vessel to bring it across. I was present at the interview with Mr Gifford, at which the charter-party was concluded. Mr Gifford was made aware on that occasion that the cargo he was intended to bring was 1800 quarters of barley. He never hinted that his vessel could not bring that quantity. On the contrary, he said he believed she could carry 2000 quarters. He suggested that any vacant space after taking in the barley might be filled up with light goods, such as grass seeds, it being desirable to keep the vessel light, as there was a bar at Caen. We said we were willing to take the light goods over and above the 1800 quarters of barley. There was nothing said about any part of the barley being left behind. I never contemplated any such thing.”

The Sheriff-Substitute ( Hamilton) pronounced the following interlocutor in the conjoined actions:—

“ Leith, 16 th January 1871.—Finds, in point of fact, that by the charter-party in question Messrs William Gifford & Co., the pursuers of the action for freight, undertook that the ‘Andalusia’ steamship (of which William Gifford, the sole partner of said firm, is the registered owner) should proceed to Caen, and there load a full and complete cargo of barley in bulk, not exceeding what she could reasonably stow and carry, and should deliver the same at Leith to Messrs Thomas Dishington & Co., the defenders in said action, upon payment of a slump freight of £160, with £2, 2s. of gratuity to the captain; finds that Caen is a bar-harbour, and that this was known to the parties at the time of entering into the said charter-party; finds that before the vessel sailed for Caen, an arrangement was made between Mr Gifford and Mr Traill, one of the partners of the said Thomas Dishington & Co., by which the latter (who was himself going to Caen) agreed not to load the vessel so deep as to risk her detention at the bar, but, after she should have taken in as much barley as she could safely carry, to fill her up with grass seeds or other light goods; finds that the loading of the vessel at Caen took place at sight and under the superintendence of Mr Traill, as representing the said Thomas Dishington & Co., and of Mr Galway the ship's agent; finds that the 50 bales of ryegrass mentioned in the bill of lading No. 10 of process were shipped by request of Mr Traill after the master had declared that the barley then on board was as much as his vessel could safely carry, and that they were so shipped under the arrangement with Mr Gifford above referred to; finds it not proved that Mr Trail objected that the amount of barley shipped was not a full cargo in terms of the charter-party; finds, on the contrary, that so soon as the ryegrass above mentioned had been taken on board, he accepted the bill of lading from the captain, and allowed the vessel to leave Caen without intimation that he would hold the said William Gifford & Co. liable in damages for breach of contract; and finds that no such intimation was made to the said William Gifford & Co. until after the cargo had been delivered and a payment made to account of the freight; finds, in these circumstances, in point of law, that the said Thomas Dishington & Co. are barred from now objecting to the amount of cargo carried under said charter-party, and consequently, that the claim of damages, which is their only defence to the action for freight, is untenable; therefore, in the action for freight, decerns in terms of the libel; and in the action of damages, sustains the defences, assoilzies the defenders the said William Gifford & Co. from the conclusions of the action, and decerns; finds the said William Gifford & Co. entitled to expenses in both actions; allows an account thereof to be lodged, and remits the same to the Auditor of Court at Leith to tax and report.

Note.—A careful perusal of the proof has

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satisfied the Sheriff-Substitute that the claim of damages put forward in answer to the action for freight was merely an after-thought, and had no foundation in anything that took place at Caen. The truth seems to be that Messrs Dishington & Co. were as anxious as Mr Gifford that the vessel should not be detained at the bar, and, with a view to obviate such detention, consented to a modification of the charter-party, to the extent of agreeing not to load a full cargo of barley, but to fill up the vessel with light goods. When, therefore, Mr Traill requested the master to take on board the ryegrass mentioned in the bill of lading, he virtually declared that he was satisfied with the amount of barley shipped. His subsequent conduct, and that of his partner Mr Dishington, fully bears out this view.

The Sheriff-Substitute has not thought it necessary to make any reference to the evidence led with reference to the carrying capacity of the ‘Andalusia’ and the depth of water on the Caen bar. Even as regards this part of the proof, however, he considers that Messrs Gifford & Co. have been successful in showing that the ‘Andalusia’ took as much cargo as she could reasonably be expected to carry with safety over the bar.”

The Sheriff ( Davidson) adhered on appeal.

The defenders Messrs Dishington (pursuers in the counter action) appealed to the First Division of the Court of Session.

Solicitor-General ( Clark) and Asher for them.

Scott and Trayner for the respondents.

At advising—