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![handle is hein.slavery/ssactsengr0277 and id is 1 raw text is: SEEGER V. DUTHIE
[45] SEEGER V. DUTHIE AND OTHERS. May 1st, 1860.
[S. C. 29 L. J. C. P. 253; 30 L. J. C. P. 65; 2 L. T. 483; 6 Jur. N. S. 1095; 7 Jur.
N. S. 239; 9 W. R. 166. Adopted, McAndrew v. Chapple, 1866, L. R. 1 C. P.
648.]
By a memorandum of charter between the plaintiff, the captain and part-owner, and
the defendants, merchants, it was agreed that the ship should load in the London
Dock, and there receive and take on board all such lawful goods as might be required
by the charterers, and should therewith proceed to Geelong, and there deliver the
cargo agreeably to the bills of lading; that the captain should attend daily at the
broker's office to sign bills of lading as customary ; that the whole of the ship should
be at the disposal of the charterers for the conveyance of goods and specie (excepting
cabin and room for officers, crew, and stores); that, if gunpowder were shipped, the
same was to be taken on board where ordered below Blackwall, as customary, &c. :
in consideration whereof the charterers agreed to pay freight for use and hire of
the ship 14001., with a gratuity of 25 guineas to the master, payable before leaving
London: the freight to be paid as follows,-so much as might be payable in the
colony by bills of lading, to the extent of 8001., to be taken and received in part
.payment, and balance (6001.) in cash, less seventy days' discount from the date of
clearing from London: forty running days were to be allowed the charterers, Sundays
and holidays excepted (if the ship were not sooner dispatched), for loading the said
ship, to commence from date of her being ready at her loading berth to receive
cargo: the owner further engaged that the ship should be ready to sail for her
destined port at the expiration of the said laying days, or sooner if required by the
charterers : if the ship were not ready either on the owner's or charterers' part at
above-named dates, then demurrage to be paid by the party in default, at the rate
of 71. per diem: the ship to be ready on or before the 10th of November, or
charterers to have the option of cancelling that agreement: penalty for non-perform-
ance of the agreement, 14001: should bills of lading not represent 8001. payable in
Geelong to cover the balance due, then the difference to be paid in cash before
sailing from London.-By a memorandum in the margin of the charterparty, the
charterers were to have the option of shipping acids on deck to the extent of 5 tons
measurement at shippers' risk, to which effect a clause was to be inserted in bills of
lading :-Held, that the 6001. and the 25 guineas being by the terms of the contract
payable on the sailing of the ship, when that event happened those sums were pay-
able on request, and were recoverable upon a common indebitatus count; and that
the captain, who was a part-owner, and with whom and in whose name the contract
was made, might sue upon it alone :-Held, also, that the stipulation for the pay-
ment of the 6001. was an independent stipulation, and that the things to be done
by the plaintiff before the clearing out of the ship were not conditions precedent
to his right to sue for that sum :-Held also, that the stipulation that the captain
should attend daily at the broker's office to sign bills of lading, was not a condition
precedent to the plaintifi's right to sue for the stipulated freight :-Held also, that
the stipulation that the ship should be ready (for loading) on or before the 10th
of November, was a condition precedent :-Held also, that the demurrage clause
was not applicable to the case of a delay caused by the captain's refusal to receive
on board goods which he bonh fide but erroneously supposed that he was not bound
to receive :-Held also, that the charterers were not entitled to set off or deduct
from the plaintiff's claim in respect of the 6001. freight, the expenses incurred by
them in consequence of such refusal of the captain :-Held also,-by Byles, J.,-
that, inasmuch as the charterparty specified no particular day for the sailing of the
vessel, a delay in that respect, though it might be ground for a cross-action by the
charterers, did not disentitle the plaintiff to sue for the stipulated freight.
A decision upon a rule to reduce the damages, may be the subject of an appeal under
the 34th section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125.
This was an action for freight for the conveyance by the plaintiff for the defen-
dants, at their request, of goods in ships; and for the demurrage of a ship of the
plaintiff kept on demurrage by the defendants; and [46] for the defendants' use by
the plaintiff's permission of ships of the plaintiff; and for the hire of ships by the
8 C. B. (N. $.).45.
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