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1862.

10

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owner :- And semble, that brokers with

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London Sittings.

PEREZ AND ANOTHER V. ALSOP. Trinity Term.

ACTION by shipper against master, on a bill of lading, The freight being

1st June, 1861, whereby the defendant promised the entire, is not plaintiffs that goods of the plaintiffs shipped on board his lost or waived by allowing ship at Seville should be delivered at London to the plainpart of the 2:

tiffs, or their assigns—he or they paying freight as per taken away on charter-party. payment of a portion only of Breach : non-delivery of the goods to the plaintiffs or the freight, without some their assigns, on payment of freight as per charter-party. express con

Second count, that the defendant was in possession of tract with the express or im. goods of the plaintiffs, on which he had a lien for freight; plied authority of the ship and, in consideration that the plaintiffs would pay 651. to

" Ellis and Newman, the defendant promised them to de

liver the goods to them. only the ordi. nary authority Breach : non-delivery; whereby they had to pay more freight, have than was due, in order to get the goods. no authority to enter into such

Third count: in detinue. a contract. Pleas (to each of the special counts): denying the con

tract and breach in each.

And, to the last count, setting up a lien on the goods.

Replication in denial, and new assignment-detention for different purposes; and also a further replication, setting up the agreement with Ellis and Newman, stated in the second count. Issue.

M. Smith and Dowdeswell for the plaintiff.
Collier and Hannen for the defendant.

The plaintiffs were Spanish merchants; the defendant was master of the ship.

On the 26th April, 1861, the ship, with four others, was chartered to Euthoneus, by Ellis and Newman as agents of the ship, for 1,200 tons of lead, at 16s. per ton, to sail from Seville on the 31st May, under a penalty of 51. a day for delay in being ready to load.

Euthoneus transferred their interest in the charter to the plaintiffs, who were not ready to load the cargo in time to 1862. complete within the last day.

PEREZ On the 7th June the ship sailed, the bill of lading being and Another dated on the 6th. There was thus a delay of six days.

Alsor. There was a conflict of evidence as to who was to blame for this delay.

On the 15th July, Ellis and Newman, the ship's agents, wrote to the plaintiffs that the ship had arrived, and asking them to take the lead as soon as possible.

The defendant, the captain, refused, however, to deliver the cargo until the full freight was paid, which came to 1061.

The plaintiffs claimed to deduct 301. for six days' penalty under the charter-party, which would leave 721. only due.

On the 20th July the plaintiffs went to Ellis and Newman, who said they could not settle the dispute, but that if the plaintiffs would pay 65l. on account of freight, they would give an order as to the cargo, and the matter might afterwards be settled.

The plaintiffs paid the 651. to Ellis and Newman, and got a receipt“ on account of freight,” and also a delivery order, upon which, however, the defendant, the master, refused to deliver more of their goods, the freight of which that sum would cover.

Eventually the balance was paid under protest.

Collier, for the defendant, submitted that there was no evidence of an authority to dispense with a tender of the freight, as per charter-party, according to the bill of lading; and as to the supposed set-off for penalties, even if it could be sustained, it would leave a sum still due for freight above the sum paid, but it could not be sustained, for the plaintiffs were in fault and were liable to demurrage. And although the defendant could not detain the goods for demurrage, yet as they had a right to detain them for the balance of freight, the detention was not unlawful, and the money could not be recovered. VOL. III.

P.P.

PEREZ

1862.

It appeared that the master, the defendant, had no

knowledge of the arrangement with Ellis and Newman, and Another por had in any way authorized or adopted it, but, on the ALSOP.

contrary, bad dissented from it and disclaimed it, and he had only authorized them to receive freight.

Mellor, J. (to the jury).— It may be taken that the defendant was not to blame as to the delay in loading. Then he was entitled to recover the full freight, and there is a lien for freight, although not for demurrage; so that he was not bound to deliver the goods, but on payment of the entire freight, unless by virtue of the agreement. As to which you are to consider whether it was by authority of the defendant, and whether, if so, it was absolute or only conditional. It appears that the brokers had only the ordinary authority to receive freight, and had no special authority.

If it was only conditional or provisional, then the defendant had all his original rights, and so is not liable. The first question then comes to this, whether the agreement was provisional and partial, or was to operate as a general and total release of the goods on payment only of a part of the freight.

The jury found that the agreement was partial only, and returned a

Verdict for the defendant.

HARRISON v. THE UNIVERSAL MARINE INLondon Sittings.

SURANCE COMPANY. Trinity Term. In the absence ACTION on a policy of insurance, dated the 2nd July, of any custom, 1000 underwriters " 1860, for 2,0001. on the ship Kensington, valued at

for 20001 on

10,0001., claiming for an average loss, by perils of the seas, injury to a ship’s bottom, 171. 16s. 8d. per cent. caused not by the ordinary action of the winds and waves, but by their violent action in a storm; and it is doubtful whether evidence of a custom that they are not to be liable for injuries to the bottom or below the water-line, unless caused by striking against the ground, or some foreign substance other than water, is admissible to control the construction of the policy. Semble, that it is not.

are

for

1862.

HARRISON

The UNIVERSAL

MARINE INSURANCE COMPANY.

Plea: payment of 1201., and payment into Court of 1401., at the rate of 70s. per cent.

M. Smith, Q.C., Karslake, Q.C., and Horace Lloyd, for the plaintiff.

Lush, Q.C., Brett, Q. C., and Honyman for the defendants.

On the 2nd July, 1860, the policy was entered into, the ship being then on her return from Calcutta. There was evidence that in the course of the voyage to the Cape the ship had strained in stormy weather.

On the 11th July there was a heavy storm, in which the ship was severely strained.

On the 30th July the ship put into Rio, labouring under a leak.

The ship remained there until October, for the purpose of repairs, and several surveys took place, to ascertain what were necessary. For that purpose it was necessary to have the ship “hove down,” and it was found that the copper sheathing beneath the water-line was damaged, and required to be removed and replaced, in order to get at and stop the leak.

The necessary repairs were done, and the ship sailed on her voyage home.

The ship had not struck on the ground, or against a rock, or any external substance.

In February, 1861, the ship reached London, and was surveyed.

In the statement of the average loss the underwriters objected to items for the expense of heaving down and repairing the leak, on the ground that it was not usual to pay for damage to a ship beneath the water-line, as such damage could not be caused by violence of the winds and waves, and so was not chargeable to perils of the seas, unless where caused by striking against the ground or some external or foreign substance.

1862.

HARRISON

THE UNIVERSAL

MARINE INSURANCE COMPANY.

Brett opened a case for the defence, founded on such a supposed custom.

M. Smith objected to the admissibility of the evidence, as it was adduced to alter or affect the policy.

MELLOR, J., admitted the evidence, as it had been admitted by COLERIDGE, J., in the case of a ship called the Pemberton (a); but he admitted it, subject to leave to move, and said the usage must be shown to be so general as that it must be taken to be known and submitted to by the insured.

Witnesses, chiefly average staters, or consulting average staters, were called to prove the supposed custom.

The question put was, “Is there a general practice, in settling claims for particular average, as to allowing or disallowing items of damage done beneath the water-line when the ship has not been in contact with the ground or some foreign and external substance, other than the sea ?"

The witnesses said the custom was not to allow for such damages, and in particular not to allow for injury to copper sheathing, which was always below the water level; and they said this custom had existed ever since copper sheathing had been used—more than fifty years.

When pressed as to the case of a ship cast on her beam ends, so as to leave part of her bottom exposed, and then struck by a heavy sea thereon, so as to shake and strain her and loosen her sheathing, and thus cause a leak, they

(a) A case cited from the MS. shorthand notes, in the possession of the attornies Walton and Bubb. It has recently been held, that, as the object of insurance is to afford protection against contingencies and dangers which may or may not occur, it cannot properly apply to a case in which the loss or injury must inevitably take place in the ordinary course of things; and, therefore,

that an insurance against "perils of the seas” does not cover an injury, resulting from the ordinary action of sea-water on an article exposed to that action in such a state as inevitably to receive injury from it; Paterson v. Harris, 30 L. J., Q. B. 354. And as to evidence of usage not inconsistent with the terms of the policy, see Miller v. Titherington, Ibid. Exch. 217.

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