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Charterparty – Full and Complete Cargo – Shipper’s Liability.

this page was last time updated on: 15-Oct-2012

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Cases referring to this case:

Morris v Levison, 1876, 1 C. P. D. 157.1

Angfartygs A/B Halfdan v Price & Pierce Ltd - [1939] 3 All ER 672


Hunter v Fry [1819] EngR 340; (1819) 2 B & A 421; 106 E.R. 420


Covenant upon a charter-party of affreightment, made between the plaintiff and the defendant, the former being described as the owner of the ship "Hunter", of the burden of 261 tons or thereabouts, then lying in the port of London. The owner covenanted that the master should load on board, freight free, goods not exceeding 100 tons, and sail to Madeira; and that upon her arrival there, the master should discharge, if required, and also receive on board, freight free, such other goods as the agents of the freighters at Madeira might think fit; and then should proceed to the West Indies direct off Cape Henry, or to some other port in Hayti; and when arrived at a port of delivery, and after having discharged the said outward cargo, should immediately receive on board from the agents or correspondents of the freighters, a full and complete cargo of coffee, in bags and casks; but not more of the latter than should be sufficient for a ground tier, and of logwood only such a quantity as should be sufficient for dunnage, but not exceeding in the whole what the said ship could reasonably stow and carry over and above her stores, tackle, apparel, furniture, and provisions; and then that the vessel should sail direct for the port of London, and there deliver her cargo. The freighter covenanted that his agents at Hayti should immediately reload on board of the vessel, in the customary manner, such full and complete cargo, within the time therein limited. The declaration then stated that the master proceeded from London to Madeira, and from Madeira to Hayti, and discharged his outward cargo, and gave notice to the defendant that he was ready to receive a full and complete cargo of coffee, in bags and casks, &c.; and that he did receive and take on board at Hayti aforesaid, from the agents of the defendant, 28 tons of coffee, and 20 tons of logwood, being all the goods and merchandise which the agents of the defendant thought fit to load on board her, although the said ship could then and there have reasonably stowed, over and above her stores, tackle, &c, a much larger quantity, to wit, 500 tons of coffee other than and besides the coffee and logwood so laden on board the said ship at Hayti aforesaid, whereof the defendant’s agents had notice. Breach, that the defendant or his agents did not nor would reload on board the said vessel, at Hayti aforesaid, a full and complete cargo to plaintiff’s damage. Plea, that defendant did reload on board the said vessel, at Hayti aforesaid, a full and complete cargo, according to" the charter-party, upon which issue-was joined.


Wednesday, April 28th, 1819.

Abbott C.J.

I am of opinion, that the mention of a ship’s burden in the description of a ship in the charter-party, in the manner it is here mentioned, is an immaterial circumstance; although it may be made material by the allegation of fraud or other matter. Here, the freighter has not covenanted to load a cargo equivalent to the burden mentioned in the charter-party: he has covenanted to load and put on board a full and complete cargo, and to pay so much per ton for every ton loaded on board. If the covenant had been to pay a gross sum for the voyage, the freighter (upon the arrival of the ship at the foreign port) might have insisted that the captain should take on board as much as the ship would safely contain; and the owner who had covenanted to take a full and complete cargo, would not be justified in saying, that he would take no more than the register-tonnage of the ship. It is, indeed, quite impossible that the burden of the ship (as described in the charter-party) should, in every case, be the measure of the precise number of tons which the ship is capable of carrying. That must depend upon the specific gravity of the particular goods; for a ship of given dimensions would be able to carry a larger number of tons, of a given species of goods, that were of a great specific gravity, than she would of another of a less specific gravity, and the freighter would therefore pay freight in proportion to the specific gravity of the goods. Upon the whole, I am of opinion, that the owner was bound to take on board such a number of tons of goods as the ship was capable of containing without injury; and, therefore, that the plaintiff is entitled to have a verdict for 918£, which, is the difference between the sum actually paid for freight, and that which would have been payable if the shipper had loaded on board a full and complete cargo.

Bayley J.

This, in my opinion, is a very plain case. The ship, at the time of the execution of the charter-party, was lying in the port of London; the defendant, who resided there, had then an opportunity of examining the ship, and of forming his own judgment of her capacity to take a larger or a smaller cargo. It is true, that by the charter-party the owner has represented her burden to be about 261 tons; it is not, however, suggested that this representation was fraudulently made on his part. The covenant, on his part, is not merely that he will take on board 261 tons of goods, but that he will take a full and complete cargo, not exceeding what the ship can reasonably carry. And he therefore, would not have been justified in refusing to take goods beyond the amount of 261 tons, but was bound to take as much on board as the ship was capable of carrying with safety. The defendant then covenants that he will load on board a full and complete cargo; which must be taken to mean such a cargo as the ship could safely carry. The defendant in this action has merely pleaded that he had put on board a fall and complete cargo, and it has been proved that the ship would bold 400 tons, whereas he has only laden on board 260, which is 140 tons less than a full and complete cargo. For these reasons, I am of opinion, that the plaintiff is entitled to recover the difference between the freight of the goods actually laden on board, and that which by the terms of his covenant he was bound to load on board.

Holroyd J.

I am also of opinion that the plaintiff is entitled to recover. The only issue is, whether the defendant has put on board this ship a full and complete cargo; which I take to mean as much as the ship would hold and safely carry. It has been argued, that the plaintiff is estopped from recovering freight for more than 261 tons of goods, by the description of the burden of the ship as given in the charter-party. I am, however, of opinion, that neither party is estopped by such matter of description, and I think that the defendant was bound to supply a cargo of 400 tons, if the ship would carry so much. There is no hardship in this ease; for the defendant has not merely covenanted to put on board the amount of tonnage stated in the beginning of the charter-party, but he has covenanted to put on board a full and complete cargo. I am, therefore, of opinion, that the plaintiff is entitled to recover the difference between the sum which the ship has earned as the freight of the goods actually shipped on board, and that which she would have earned if a full and complete cargo had been laden on board.

Best J.

I am entirely of the same opinion. The stipulation in the charter-party is not that the owner should receive, and the freighter put on board, a cargo equivalent to the tonnage described in the charter-party; but that the one should receive a full and complete cargo, not exceeding what the ship was capable of receiving with safety, and that the other should put such a cargo on board. Now it is clear, that the freighter would be entitled to recover damages against the owner, if the latter had refused to receive on board any thing less than what the ship could carry with safety; and it seems to me, that the defendant, who has covenanted to load a full and complete cargo, is equally liable in damages, for not having laden such a cargo as the ship could safely carry. I am, therefore, of opinion, that the plaintiff is entitled to recover the sum of 918£.

 


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