Scottish Court of Session Decisions

This action was raised at the instance of Messrs Charpentier & Bedex, joint-owners of the barque “Perseverant, ” of France, against Messrs Dunn & Sons, shipowners in Glasgow, for payment of £398, 8s. 10d. in respect of a breach of charter-party entered into between the pursuers and the defenders on September 16, 1875.

By that charter-party the pursuers undertook that their barque should load a cargo of gunpowder at Glasgow, and proceed therewith to Rio or Santos, in Brazil, and that after discharging that cargo the barque should, at the port of discharge, or at one port in Brazil not south of Santos nor north of Maranham, load a cargo of sugar or other lawful produce, and thence proceed to Cowes, &c., for orders. The freight was to be

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65s. per ton on the homeward cargo, with 5s. extra if the port of loading was shifted. This was to be the sole remuneration for the outward and inward voyages. The outward cargo was duly loaded, and was thereafter discharged at Santos. At that port a sub-charter was furnished to the master of the vessel, by which he was required to take his ship to Estancia and load there a cargo of sugar. This sub-charter-party was entered into between Watson & Co., the defenders' agents at Rio, and Joas Magolhaes, as agents for Moreira, Irmao, & Co. who were to ship the cargo.

At Santos the master of the “Perseverant” was informed by a ship's captain who had been at Estancia that the vessel would not be able to cross the bar at that port when loaded. He could not get a clearance there for Estancia, but he got one for Bahia, and set out for that port on his way to Estancia. He anchored at the Roads of Bahia, and went ashore to get a clearance for Estancia and a pilot. When so engaged he found that there would be great difficulty, if not impossibility, for a vessel of the size of the “Perseverant” in going to Estancia, and he put himself in communication with the sub-charterers, who carried on business at Bahia. He had both personal interviews and correspondence with them. The result was that they intimated to him that they would not load a cargo at Estancia unless the “Perseverant” drew no more than 10½ feet of water, or on the condition that he should load no more cargo than would enable her to cross the bar, and that he would give up all claim for dead-freight. The “Perseverant” when loaded drew about 14 feet.

The master communicated with Watson & Co. at Rio, and they insisted that he should proceed to Estancia, and maintained that the obligations of the charter-party were satisfied if he received a cargo which he could carry over the bar, although the ship was not full. They denied the right of the master to take instructions from Moreira & Co., but they did not undertake to provide any cargo other than that which Moreira & Co. were bound to provide.

In consequence the master sought other employment for the ship, and obtained a homeward cargo from other shippers at Bahia, and he now sued for damages for the breach of the charter-party.

The Lord Ordinary ( Rutherfurd Clark) issued an interlocutor decerning for payment of £70 in name of expenses.

The note to the interlocutor, after narrating the facts as given above, proceeded—“In the opinion of the Lord Ordinary the action is well founded.

1. By the charter-party the defenders had the right of naming the port at which the inward cargo was to be loaded. But they were bound to have regard to the size of the vessel, and to name a port to which she could go with safety. In the opinion of the Lord Ordinary the evidence shows that Estancia was not a suitable or safe port for a vessel of the size of the “Perseverant.”

2. Again, the defenders were not, in the opinion of the Lord Ordinary, entitled to name a port at which a full cargo could not be loaded, except on the condition that they were to pay dead freight. To hold otherwise would be to hold that they were entitled to deprive the pursuers of a material part of the earnings of the ship. For by the charter-party the freight was payable on the sugar actually delivered.

If the difficulty had occurred in such a way that the pursuers had no means of communication with the defenders, they might have been bound to go to Estancia, and after loading what cargo the ship could carry, to claim for dead freight. But the agents for the defenders, while requiring the master to go to Estancia, maintained that the ship would have no claim for dead freight—a claim which was maintained in the course of the argument in this case.

It was said that the ship might have been filled up from lighters outside the bar, but there is no evidence that this is the customary manner of loading ships, or even that it could be done.

Further, the defenders contended that the master was bound to have objected to Estancia as a port of loading when he was at Santos. It is true that while there he had, in the course of a casual conversation, heard that Estancia was not a suitable port for his ship. But it is thought that he was entitled to rely on the agents for the defenders exercising their power with due discretion and after due inquiry, and to put aside in their favour what was after all no more than a vague rumour.

3. No cargo was provided at Estancia, and none could be provided except on conditions to which it is thought the master was not bound to submit. It may be true that the master was not entitled to take his instructions from Moreira & Company alone. But he communicated with the agents for the defenders, and they did not undertake to provide any cargo except through Moreira & Company, and they approved of the conditions which that company sought to attach.

There only remains the amount of damages. The parties were not at variance on the principle on which the damages should be assessed. But the amount cannot be accurately ascertained, as it depends on the amount of the sugar which would have been delivered if a full cargo had been loaded in cases. On the whole, the Lord Ordinary thinks that he will do substantial justice by assessing the damages at £70.”

The defenders reclaimed.

At advising—