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![handle is hein.slavery/ssactsengr0245 and id is 1 raw text is: GLAHOLM V. HAYS
[257] GLAHOLM v. HAYS, IRVINE, AND ANDERSON. 1841.
[S. C. 2 Scott, N. R. 471; 10 L. J. C. P. 98. Commented on, Tarrabochia v. Ilickie,
1856, 1 H. & N. 189. Discussed, Dimech v. Corlett, 1858, 12 Moo. P. C. 228 ; Jackson
v. Union Marine Insurance Company, 1874, L. R. 10 C. P. 133.]
By a memorandum of charter it is agreed :-that a vessel shall proceed to Trieste,
and there load a full cargo, and being so loaded shall proceed to a port in the
United Kingdom, and deliver the same, upon payment of freight at a certain rate ;
that forty running days shall be allowed the merchants (if not sooner dispatched)
for loading at Trieste, and for unloading at the port of discharge; and twelve days
on demurrage, at 61. per day; the vessel to sail from England on or before the 4th
of February next-and that the vessel shall be addressed to the charterer's agents at
the port of loading and discharge: Held, that the sailing on or before the 4th of
February was a condition precedent.
Assumpsit, upon a memorandum of charter of the Pomona, Smith, master, whereby
it was agreed that the ship, being tight, staunch, and strong, and every way fitted for
the voyage, should, having liberty to load a cargo of coals out, either to Venice or
Trieste, or both those ports, proceed to Trieste, and there load a complete and full
cargo of wheat or other lawful merchandize, the merchants finding mats for damage,
if required, if the vessel should load coals on the ship's account; the cargo to be
addressed to the charterer's agents, which the merchants bound themselves to ship,
not exceeding what the said vessel could reasonably stow and carry over and above
her tackle, apparel, provisions, and furniture ; and that the said vessel being so loaded,
should therewith proceed to a good and safe port in the United Kingdom, calling at
Cork or Falmouth for orders, or so near thereunto as she might safely get, and deliver
the same, on being paid freight at and after the rate of 9s. per quarter for wheat, with
10 per cent. thereon for primage, and other goods in fair proportion thereto, restraints
of princes and rulers during the said voyage always excepted : That the cargo should
be sent alongside and taken from alongside the said vessel at the expenses and risk of
the said freighters: That the freight should be paid on unloading and right delivery
of the cargo, one half in cash, and the remainder by approved bill at two months' date :
That forty running days should be allowed the said merchants, if the [258] ship were
not sooner dispatched, for loading the said ship at Trieste and unloading at her port
of discharge, and twelve days on demurrage over and above the said laying days, at
61. per day : The vessel to sail from England on or before the 4th of February then
next: That the vessel should be addressed to the charterer's agents at the ports of
loading and discharge: That the cash for the ship's disbursements should be advanced
free of interest or commission : And that the penalty for the non-performance of the
said agreement should be 8001. Mutual promises, and general allegation of performance.
Breach: that no agent, or other person on behalf of the defendants, for the loading of
the said vessel could be found by the said master, nor had any such agent or other
person been appointed by the defendants: and further, that the defendant did not,
nor would, within the number of days in the charter-party mentioned in that behalf,
nor did nor would any other person or persons on the behalf of the defendants, within
the said last-mentioned number of days, load the said vessel with a full and complete
cargo of wheat or other lawful merchandize, according to the tenor and effect of the
.said charter-party, and of their promise and undertaking; but, on the contrary thereof,
wholly neglected and refused to load the said vessel with any cargo or merchandize
whatsoever: and the plaintiff further saith, that by reason of the premises, the said
vessel was detained for a long space of time, to wit, for the space of twenty days after
the said lay days and days of demurrage in the said charter-party mentioned, whilst
the said master was endeavouring to procure another cargo; and that by reason of
the said defendants' not having been ready to load the said ship, and not having
appointed or provided any agent or other person for the loading of the said vessel,
the plaintiff was put to great charges and expenses, amounting, to wit, to the sum of
1001., in and about inquiring and ad-[259]-vertising for the said agents: and the
plaintiff further saith, that by reason of the defendants' not having provided any cargo
or merchandize whatsoever as aforesaid, the plaintiff not only lost and was deprived of
all the profit and advantage which he might and otherwise would have made by the
2 XN. &. G. 257.](ViewImageLocal?handle=hein.slavery/ssactsengr0245&div=1&collection=&method=preview&ext=.png&size=3)