an action by the freighters against the shipowner. The charter was to carry from Liverpool to Leghorn. The ship left Liverpool, and on the 30th June, 1796, put into Falmouth to wait for convoy. On the 27th of July following, an embargo was issued against all ships bound to Leghorn; and the ship remained at Falmouth until the month of August, 1798, when, by permission of the government, but without the consent of the freighter, she returned to Liverpool, and discharged her cargo, which the freighter at length consented to receive, but without prejudice to the question, whether, under the circumstances of the case, the shipowner was excused from the non-performance of the contract. On the 24th of October, 1798, more than two years after it had been imposed, the embargo was taken off, and the freighter called upon the shipowner to perform his contract. This the latter refused to do, and in an action by the freighter to recover the amount paid by him for the insurance of his goods for the voyage, he obtained a verdict for the full amount. The right of the plaintiff to recover was afterwards solemnly discussed in the Court of King's Bench; and the Court was of opinion that the embargo being only a temporary restraint did not, notwithstanding the delay, dissolve the contract between the parties, and that the plaintiff had a right to recover. The principles then to be deduced from this case appear to me to be these, that if a shipowner has contracted to carry a cargo, and is prevented from so doing by an embargo or other temporary restraint, he is bound, on the restraint being removed, to fulfil his contract, if required so to do by the freighter, although the restraint may have been continued, as in the case of Hadley v. Clarke, for a period of more than two years; and that, if he neglects or refuses to do so, the freighter may recover damages. 1858. August 5. was bound to For the reasons, therefore, that I have given, and on the The shipowner authority of these cases, I am inclined to hold that the circum- fulfil his constances of the capture, detention, and even sale of the Newport, tract, or pay damages. amount to a mere temporary detention; that they do not fall within the exceptions specified in the charter-party, and that the shipowner was bound on his property being restored to him to fulfil his contract, by furnishing a suitable ship to carry on the cargo to Ambriz, and to bring back a return cargo to this country, if so required by the charterers; and on his failing to do so, that the charterers have a right of action against him. owner intitled I now come to a point which was very strongly insisted upon Is the shipat the reference, namely, that a shipowner is intitled to a part to retain the payment of freight pro ratâ itineris peracti. It was said that S. BB 1858. August 5. freight pre paid as pro ratâ the Newport had in fact arrived at Ambriz, her outward port of destination, when she was captured and taken to St. Helena ; that the 4007. advanced was for the outward freight, and that freight earned? consequently the shipowner has earned it, and is intitled to retain it as a payment pro ratâ itineris. That a shipowner is sometimes intitled to freight pro ratâ itineris cannot be denied; there are numerous cases in point to prove this; but in all these cases it will be found that he is only intitled, if the charterer accepts the goods at the shorter destination. The transaction would seem to be this:-The shipowner, who is at liberty with a view of earning his full freight, to carry on the goods to the ultimate port of destination, offers to deliver them up, and the freighter accepts them, at the shorter destination: the shipowner cannot compel the freighter to accept them, nor can the freighter compel the shipowner to deliver them up, at the shorter destination; it is a mutual arrangement between the parties, substituting a new agreement in place of the original contract. There has been But of such acceptance, in the present case, there is no evidence; by the freighter the fact, as was urged, that the owner of the cargo has claimed at the shorter his goods, and has had them restored, is no such acceptance as as to imply a is here meant; he receives his goods, as the plaintiff did in pro ratá freight. Hadley v. Clarke, subject to all claims for damages, which he may have against the shipowner. I doubt whether anything short of a dissolution of the original contract by mutual consent, plainly evidenced, would now be held to be a sufficient answer to the charterers' action for damages for breach of contract. no acceptance destination, so new contract of The contract of charter has been dissolved on terms of the repayment of paid: But what it may be asked then has been the course of the transaction between the parties? Have the charterers or by agreement freighters required the shipowner to carry on the cargo from St. Helena to Ambriz? And have the latter refused to do so? the freight pre- or have the parties mutually agreed to dissolve the contract between them, and on what terms? The only evidence we have on the subject is to be found in the affidavit of Mr. José Maria Perez, sworn the 19th of June, 1858, from which we learn that the parties have mutually agreed to dissolve the contract between them, the charterers relinquishing their right to compel the owners of the Newport to carry the cargo from St. Helena to Ambriz, on condition that the latter repay to them the 4007. stances this sti- which they have received. It is a mutual arrangement between pulation furthe parties, substituting a new agreement between them; and nishes an equithe question to be considered is, whether this agreement is so manifestly inequitable as to lead to a presumption that it had been entered into merely to defraud the captors, and that the latter ought not therefore to be bound by it. To determine how far this agreement is equitable, it will be necessary to consider looking to all the circum table measure of damages, what means the Messrs. Le Sueur had of carrying out their contract, had the charterers insisted upon its fulfilment. Looking to the character of the place, to the almost total absence of any trade from St. Helena to the west coast of Africa, and to the constantly prevailing trade winds, there can, I think, be little doubt that the best mode of getting the goods conveyed from St. Helena to Ambriz, would have been to have sent out a ship expressly for the purpose to that island. And I would ask, looking to the amount of freight agreed to be paid in the present case, whether a ship could possibly have been obtained for that purpose for less than 4007.? Whether the captors would have preferred to pay the expenses attending the hire of a ship to convey the cargo from St. Helena to Ambriz, or whether they would not rather have compromised the matter for the sum of 4007.? I think there can be but one answer to this. It may, perhaps, also be not altogether unimportant to observe that in the case of Hadley v. Clarke, the measure of the plaintiff's damages for breach of the contract was the sum paid by him for the insurance of his goods, the only disbursement which he appears to have made. So, in the present case, the 400l. advanced, may fairly be taken as a measure of the damages due to the charterers for non-fulfilment of the contract. 1858. August 5. and the shiptherefore intitled to recover owners are such damages On all these grounds, therefore, I hold that the Messrs. Le Sueur are intitled to recover from the captors this 400l., not as a repayment of freight advanced, but as damages justly due by them to the charterers for non-fulfilment of the charter- from the capparty. I hold that the charterers could have claimed the fulfil- tors. ment of the contract, and that the Messrs. Le Sueur, in compromising that claim for 400l., took the best course for their own and the captors' interests. owners are also captors the III. The next item on which there was some discussion was. The shipthe balance of freight and the gratuity to the master, amounting intitled to reto 510l. 10s. It is clear that the balance of the freight was lost cover from the to the shipowner by the capture and detention; he will conse- balance of quently be intitled to it, less certain expenses which would have chartered freight, less been necessarily incurred in earning it. These are three months' charges. discount on half the amount, in accordance with the terms of the charter-party, provisions and other payments on the coast of Africa, and inward charges in this country. These we estimate altogether at the sum of 441. 14s. 6d. We have therefore allowed this item at 4651, 5s. 1858. August 5. Nothing can be plus stores, IV. The next item is a sum of 50l. as the estimated value of the stores and provisions that would have remained at the conclusion of the voyage on the ship's return to this country. allowed for sur-Looking at the small quantity of provisions she seems to have had on board when she was sold at St. Helena, and to the improbability that she would have had any large surplus stock of provisions at the termination of the voyage, we cannot allow this item. If any stores and provisions remained at the end of the voyage, they would be included in the value allowed for the ship. nor for anticipated profits from the employment of the ship. Interest at 4 per cent. allowed from the V. Item No. 14, for the loss of the ship's employment from the period of the capture to the end of 1857, amounting to no less a sum than 8061. 3s. 6d., cannot, on any consideration, be allowed. It is a claim not for losses sustained, but for anticipated profits, which might possibly never have been made. The case of the Levin Lank (a) has decided this point. Lastly. We shall allow interest upon the amount allowed from the 1st day of January, 1855, that being the time when it may probable termi- fairly be apprehended that the return voyage would have ended, until the day of payment; and as there is no reason in the present case to deviate from the ordinary rule, we shall allow it at the rate of four per cent. per annum. nation of the return voyage to the date of payment. H. C. ROTHERY, H. M.'s Registrar." April 29. In the High Court of Admiralty. THE N. R. GOSFABRICK. Foreign Ship-Necessaries-Money advanced-3 & 4 Vict. c. 65, s. 6. A foreign ship cannot be sued (under 3 & 4 Vict. c. 65, s. 6) for money advanced to the master to enable him to come out of gaol, where he was imprisoned for a debt incurred for necessaries supplied to the ship. Butcher's meat is a necessary within the meaning of the statute. Semble, a party supplying necessaries to a foreign ship, and taking a bill in payment, is intitled, if the bill is dishonoured, to sue the ship for the original debt. THI HIS question arose on the admission of an act on petition, in which N. S. Lotinga, of Newcastle-upon-Tyne, claimed from the foreign brig, N. R. Gosfabrick, a sum of money, alleged to have been advanced for necessaries. Phillimore, Q.C., for the owners. Deane, Q.C., for Mr. Lotinga. (a) Ante, p. 45. The brig arrived in the river Tyne in December, 1857, and remained there till the 14th January, 1858, during which time Arkley, a butcher of Newcastle, supplied the vessel with meat and other necessaries to the amount of 271. Arkley, being unable to obtain payment, sued the master and lodged him in Newcastle gaol. The master sent for Lotinga, an insurance broker, who, at his request, paid Arkley for the necessaries supplied and for costs incurred, a sum of 371. The master drew a bill of exchange in favour of Lotinga on his owners, which was dishonored, whereupon Lotinga arrested the brig and commenced the present suit. 1858. April 29. 3 & 4 Vict. c. 65, s. 6. Money advanced to discharge a DR. LUSHINGTON :-I am of opinion that the meat, &c. supplied Judgment. falls strictly within the term "necessaries," and the amount due for them might have been recovered by proceedings against the ship; but there is a broad distinction between the circumstances of the present case and those of ordinary suits for necessaries supplied to ships. If Arkley was suing, I am by no means clear that he would be deprived of his remedy against the ship, because he had chosen to arrest the master, and because he had taken a bill of exchange; for the necessaries would still remain unpaid for. But here the case assumes a very different aspect : the necessaries have been paid for, and this is a claim for money advanced to discharge a debt incurred for necessaries. The 3 & 4 Vict. c. 65, s. 6, introduced a novel proceeding, the principal reason for which was the almost impossibility of foreign ships, in distress off the English coast, procuring such necessaries as anchors and cables; and I must take care not to go beyond a fair construction of the Act, for the Court had no original jurisdiction in the subject-matter. In the Sophie (a), the money was taken to have been advanced in order to procure necessaries; here it was advanced to pay a debt incurred for necessaries already procured. If the master is to be considered a necessary, it would extend the remedy to money advanced to get him out of prison for debts howsoever contracted, but that can never be the meaning of the section. I am of opinion that in the Sophie I went to the utmost extent I was at liberty to go, namely, in pronouncing for money advanced in order to procure necessaries then wanting. I must reject the petition with costs. Stokes, proctor for Mr. Lotinga. Skipwith for the owners. (a) 1 W. Rob. 368, debt incurred for necessaries is not within the statute. |