Scottish Court of Session Decisions

In this action Aktieselskabet “Heimdal,” shipowners, Norway, registered owners of the schooner “Heimdal,” sued Crawford Noble, merchant, Aberdeen, for the sum of £1176, 16s. 3d.

The defender in March 1904 had hired the “Heimdal” from the pursuers, the charter-party being in the following terms:—

“ Aberdeen, 21st March 1904.

It is this day mutually agreed between Johan Bryde, Esq., owner of the good ship or vessel called the “Heimdal,” of Sandefjord, whereof is master, of the measurement of 220 d.w. reg. tons or thereabouts, now to be ready for loading at Peterhead between 5th July and 15th July 1904, but not later than 15th July, and Crawford Noble, Esq., of Aberdeen, affreighter, That the said ship being tight, staunch, and strong and every way fitted for the voyage, shall with all convenient speed sail and proceed to Peterhead or so near thereunto as she may safely get, and there load from the factors of the said affreighter a full and complete cargo of not exceeding 200 tons coals, provisions, &c., such cargo 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 to Kickerton Island and/or other stations in Cumberland Inlet as may be required, and there discharge cargo at charterer's stations and load produce (not exceeding 200 tons) and proceed to Peterhead or Dundee as ordered by charterer's agent or so near thereto as she may safely get, and deliver the same on being paid freight as follows:—£110—One hundred and ten pounds stg. per month for the use of the whole ship, the time to count from the day the ship is ready for loading at Peterhead (between 5th and 15th July 1904), and to cease when the home cargo is discharged, but the total hire is not to exceed £450 (four hundred and fifty pounds stg.), including laid-up hire if any. Ten pounds gratuity to the master In full of all port charges and pilotage as customary (The act of God, the King's enemies, strikes, fire, and all and every other dangers, and accidents of the seas, rivers, and navigation of whatever nature or kind soever during the said voyage always excepted). The ship or owners are not liable for any act, neglect, or default of the pilot, master, mariners, or other servants of the shipowners in navigating the ship. General average, if any, to be settled according to York and Antwerp Rules, 1890.

The cargo to be brought to and taken from alongside the ship at merchant's risk

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and expense. The freight to become due and be paid in cash, without discount, address commission, or insurance, on right and true delivery of the cargo as follows, viz.—£55 stg. on arrival of vessel to load in Peterhead, to be paid to the master, and thereafter £55 half-monthly to the owner Mr Johan Bryde, in Sandefjord, but payments not to exceed £220 until vessel returns to Scotland.… Time occupied in Cumberland Inlet in loading and discharging not to exceed four or five weeks.” [ The words printed in italics were scored through.]

There was a marginal note in the following terms—“Should vessel be disabled so as to be unable to continue the voyage, hire to cease from time of disablement until she resumes the voyage, but charterer takes the risk of any detention caused by ice. If, however, vessel should have to lie up in Cumberland Inlet on account of ice the monthly hire during such time to be £55 stg. Coals to be for charterer's a/c. Fishing when not interfering materially with the prosecution of the voyage for owner's he allowing charterer 1 3 (one-third) of the catch.”

From the averments of the parties upon record it appeared that the “Heimdal” left Peterhead on 14th July 1904, and some three weeks afterwards found herself involved in the ice in the neighbourhood of Cumberland Sound. Towards the middle of September 1904 she reached a point not far from Kickerton Island or Cumberland Inlet, her final destination, but owing to ice difficulties she did not actually reach the station and completely discharge her cargo until July 1905. In that month she loaded a home cargo and started on her return voyage, but shortly afterwards was again involved in ice and became a total loss. In these circumstances the defender paid the pursuers £220, but the latter claimed the sum sued for, as representing (1) the full hire of the vessel under the charter-party from July 1904 to the time when her cargo was fully discharged in July 1905, (2) as a quantum meruit for the use of the vessel as a collecting-house for merchandise from September 1904 to July 1905 in a manner not contemplated by the charter-party.

Pursuers averred, inter alia—“(Cond. 4) … The outward passage to Greenland proved a good one, and within three weeks of leaving Peterhead the ‘Heimdal’ arrived off Cumberland Sound, which is a large inlet on the west coast of Greenland, extending inland to a distance of 130 miles. When within twenty to thirty miles off the entrance to the Sound the ‘Heimdal’ came in contact with ice. This was on 12th August, and from this date down to 25th August the further progress of the ‘Heimdal’ was rendered impossible on account of large quantities of pack ice and numerous large icebergs, which completely blocked the entrance to the Sound. On 25th August the ice slackened, and the entrance to the Sound was reached on 26th August. After considerable difficulties caused by the prevalence of ice, which impeded rapid navigation or temporarily suspended it, the ‘Heimdal,’ on or about the 15th September 1904 arrived in the vicinity of Kickerton Island, in the Cumberland Inlet, where she anchored, but owing to the ice conditions which then prevailed, and which continued with only very brief and partial interruptions till July 1905, the vessel was not and could not be put in a position to discharge the cargo, nor could the defenders owing to the conditions foresaid take delivery of the same except in small quantities from time to time. Notwithstanding that every effort was used the discharge was not completed until 5th July 1905. The outward voyage of the ‘Heimdal’ was thus completed on that day by the final discharge of her outward cargo. On that day the ‘Heimdal,’ having completed the discharge of her outward cargo, began loading her homeward cargo, and having completed loading on 9th July 1905, she set sail on that day on her homeward voyage. … The pursuers used all possible expedition in reaching said destination. (Cond. 5) From 15th September 1904 down to 5th July 1905 the ‘Heimdal’ was detained at Kickerton Station by ice, which made it impossible for her to complete the discharge of her cargo, and thereafter to proceed on her homeward voyage. During this period the defender had the use of the ship as a warehouse for the goods which he bought from and sold to the natives, and as an alternative to the pursuers' claim in name of freight for the period after the vessel arrived in the vicinity of Kickerton Island, they are entitled in respect of this beneficial use of the ‘Heimdal’ had by defenders to a quantum meruit therefor, which along with the freight payable for the period before said arrival is not less than the sum sued for. It is also believed and averred that the defender was enabled owing to said detention to load on board the ‘Heimdal’ more cargo than if she had left as contemplated by said charter-party about October 1904, as the fruits of the hunting season 1905 were available for export. The defender having said cargo fully insured was thus in a much better position than if the ‘Heimdal’ had sailed in 1904 for Peterhead….”

They pleaded—“(1) The defender being due and resting-owing to the pursuers in the sum sued for in terms of the said charter-party, the pursuers are entitled to decree as craved with interest and expenses. (2) In any event, the defender having had the beneficial use of the said vessel ‘Heimdal’ from 14th July 1904 to 24th July 1905, is bound to pay the pursuers a quantum meruit for the same, and the sum sued for being fair and reasonable the pursuers are entitled to decree therefor with expenses”

The defender pleaded, inter alia—“(4) Under the said charter-party it is a condition-precedent to the liability of the defender to pay freight in excess of the sum of £220 that the said vessel ‘Heimdal’ shall return to Scotland and deliver her homeward cargo. (5) The said vessel ‘Heimdal’ never having returned to Scotland, the defender should be assoilzied. (6) On a

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sound construction of the said charter-party the defender's liability for freight and detention by ice is limited to £450. (7) On a sound construction of the said charter-party the defender is not liable for the hire of the ‘Heimdal’ during the period from 15th September 1904 till 5th July 1905, when she was disabled and unable to resume the voyage. (8) In any event, the defender's liability in respect of the detention of the said vessel by ice is limited to £55 per month.”

The Lord Ordinary ( Ardwall) on 5th July 1906 pronounced the following interlocutor:—“The Lord Ordinary having heard counsel for the parties in the Procedure Roll, Repels the fourth and fifth pleas-in-law for the defender, and before further answer allows to the parties a proof of their respective averments to proceed before him on a day to be afterwards fixed,” &c.

Note.—“I am of opinion that on a sound construction of the charter-party the clause which winds up in these terms—‘But payment not to exceed £220 until vessel returns to Scotland,’ was merely intended to regulate the times of payment, and does not otherwise affect the rights of parties under the contract. It may, however, still be open to argument, should the facts when ascertained permit of it, that the charter-party contemplated two voyages—an outward and a homeward voyage—and that the £220 is sufficient payment for the time occupied on the outward voyage, and that nothing is due for the homeward voyage. But, on the other hand, it may appear that owing to detention by ice the outward cargo was not discharged till long after the expiry of two months from the date of loading, and that therefore more than £220 is due even for the outward voyage. I am strongly disposed to sustain the sixth plea-in-law for the defender, but, looking to the terms of the second plea-in-law for the pursuers, and the averments by which it is professedly supported, and considering that in any view there must be a proof, I think it better to reserve the disposal of that plea till the facts are ascertained.

I may add that I consider that the proof might well be obviated or restricted in this case by a minute of admissions founded on the ship's log, which appears to have been carefully and regularly kept.”

The defender reclaimed, and argued—The charter-party was for a single voyage and not for two voyages. The voyage had never been completed, and accordingly had there been no special provision in the charter-party, and had the ordinary rule of law been applicable, no freight whatever would have been due, the voyage never having been completed—Abbott's Law of Merchant Ships and Seamen (14th ed.), pp. 743, 712; Gibbon v. Mendez, (1818) 2 B. & Ald. 17; Smith v. Wilson, (1807) 8 East 437. Admittedly, however, £220 had been earned under the special clause, but nothing more, it being a condition-precedent, to the earning of a greater sum that the vessel should have returned to Scotland. “Until” meant “unless and until.” Even if wrong on the question of the £220, under no circumstances could he be liable for more than £450, as the clause which imposed that limit was explicit and unqualified. There were no relevant averments on record to support the respondents' claim of a quantum meruit.

Argued for the respondents—The charter-party was for two voyages—Carver's Carriage by Sea, 681; Mackrell v. Simond, (1776) 2 Chit. 666. The hirers were accordingly liable for the whole of the outward voyage, which did not finish until the whole cargo had been discharged. The clause as to £220 was meant to regulate the time and not the amount of payment, and the clause as to £450 was meant to apply only to an ordinary voyage with its ordinary incidents — e.g., delay caused by fishing, but not to a casus improvisus, such as that which had occurred. In any case, on the principle of quantum meruit, the defender was due a considerable sum for the use he had made of the vessel as a storehouse.