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Decisions of the Superior Courts of New South Wales, 1788-1899

Terry v. Ritchie [1819] NSWKR 4; [1819] NSWSupC 4

shipping bond - charter party

Supreme Court
Field J., 1819
Source: Sydney Gazette, 19 June 1819[1]

This was an action of debt upon a bond in the penalty of £10,000, in which the defendant, by the description of "master of the brig Greyhound", now riding at anchor in Sydney Cove," did, on the 8th of June in the last year, bind himself to the plaintiffs "to proceed without delay from Port Jackson to Calcutta, and there select a cargo of goods agreeably to schedule and instructions thereto annexed and returned to Port Jackson with such cargo in good condition, dangers of the seas excepted, within 8 months from the day of his leaving Port Jackson." This and that the defendant should purchase the goods at the lowest prices, and of the best qualities, and comply with the annexed instructions, were the only expressed conditions of the bond, but the condition previously recited the following agreement between the parties.
Whereas the defendant is bound on a voyage to Calcutta and from thence to return to Port Jackson direct with merchandise, within the period of 8 months from the day of the commencement of the said voyage from Port Jackson; but in case from any unforeseen cause, the said vessel should be detained on her voyage longer than eight months and shall arrive at any time after, it shall then be at the option of the plaintiffs to take such goods or not. And it is agreed that the prices of the articles purchased on the said voyage, and hereby agreed to be taken by the said plaintiffs, shall be verified on oath, before a notary, or the proper officer at Calcutta, in order to shew the cost paid for such respective articles, and that such oath be subscribed at the foot of a copy of each particular invoice and further, that the said plaintiffs shall, upon the arrival of the said goods in good condition at Port Jackson, pay unto the said defendant or his assigns, over and above the full cost price of the goods at Calcutta, as expressed in the different invoices, besides the agreed commission, freight for the same in manner following (that is to say), the sum of £12.10s. per ton for the spirits and bale goods, and £10 per ton for the tea, sugar, and soap."
Upon this bond, the plaintiff assigned the following breaches: 1. that the defendant did not come direct from Calcutta to Port Jackson; 2. that he had freight on board belonging to other persons, which induced him to put in to the Derwent, and there landed a passenger; 3. that he did not mark of the goods, as instructed by the schedule of the bond; 4. that he did not verify on oath the cost of the goods; 5. that on his arrival at this port he did not deliver the goods to the plaintiffs; 6. that he sold the goods to other persons.
As to the right of the plaintiffs to assign all these for breaches, some of them not forming part of the condition of the bond, or only of the recited agreement, the learned Judge (Field) ruled, that notwithstanding the condition did not (after the words "comply with the instructions here to annexed)" go on, told "and the agreement herein before recited," yet that [?] since wherever such recitals or even in memorials annexed (M. or. 679, 8 Term Rep. 483) restrain the condition, they are taken as part of it, and since the principle upon which the law goes, is the intention of the parties (2 Saund 414, 2 New Rep 175, 6 East 507), he would permit this agreement to enlarge the words of the condition according to the plain meaning of the plaintiffs and defendants although the only precedent he could find was the case of Barclay v. Luca (1 Term Rep 291) which had been since questions rather in point of fact than law (3 Fast. 484) New rep 34, 4 Faunl 673) [?]. If this agreement were not to be construed as part of the condition, the defendant might be deprived not only of his freight and commission, but perhaps of the price of a cargo; for the condition said duly that he should bring the cargo on accord of the plaintiffs; not a word about remuneration, though these words might compel them to account. Therefore, as the words of the agreement were restrictive of the condition for the benefit of the defendant, it was but fair they should be deliberate to use for that of the Plaintiff.
As to the first and second breaches, the evidence was wrong that the defendant had not committed these acts [?] The bond did not prohibit the other; it only bound the defendant to bring all the plaintiffs goods; in order to make room for the very few tons of [?]; goods which the ship brought, it was proved that the defendant had left behind him 100 bags of [?], which he might have carried as ship necessities; and as to the 5th and 6th, it was equally clear that the defendant had always intended to bring the cargo for the plaintiff till he was forced to put into the Derwent, not to land a passenger or goods, but Fulwood and water, having had a long and stormy passage from Calcutta; and that there is vessel being found, upon survey, unsafe (from a leak irreparable there) to bring the cargo here, the cargo was sold, as partially damaged. Under these circumstances the Court was of the opinion that no ship being contemplated in the bond but the Greyhound, and the goods being the property of the defendant, and not of the plaintiffs, till the Greyhound should have safely arrived here with them within the eight-months, or after, at the plaintiffs option or not (for the bond imposed upon the plaintiffs the payment of the cost price of the goods, only upon arrival in good condition here and the plaintiffs by a letter addressed to the defendant on the day of the date of the bond agreed to allow him interest on back price 3 months after his departure from Calcutta) the defendant was protected by the exception in the bond of the "dangers of the seas," which prevented him from bringing the cargo in the Greyhound, and that he was not obliged to take up another ship to bring the cargo on here, which (if it had been the intention of the parties) would doubtless have been expressed in [?] whereas that provided only for payment of the Greyhound's freight, upon her arrival with the cargo in good condition. The fact was, that the greater part of the goods being sold at the Derwent to the agent of Messrs. Riley and Jones, of this port, the ship Surrey, which happened to be then there, was taken up by them at £3 per ton, to bring the goods here; and that both these ships are claimed to arrive at this port on the same day. This accident through a fallacious colour over the plaintiffs claim, which they had rendered more plausible by two letters addressed to the defendant and Messrs. Riley and Jones, upon these arrivals. These letters set out with the fallacy that the cargo was brought by the defendant "to this port:" if it had been, the plaintiffs would certainly have been entitled to it; but the fact was, that the defendant was prevented by dangers of the seas from bringing it to this port, and it was the persons to whom he had rightfully sold it that brought it here. The letters then offered to "take the cargo in the condition it is in, and to pave the full sums agreed in the bond, and a reasonable compensation for the trans-shipment" not a word about the Surrey's freight of £3 per ton. But even if the plaintiffs had offered that, how could the defendant have guessed at the Derwent that they would have been so extremely liberal? It was very easy to make generous offers which they were in no danger of being accepted. _?? the goods worth of the defendant' : he had a right to insure then, so as to indemnify himself for the chance of not being able to bring them here in good condition, without which the plaintiffs were not compellable to pay their price, commission, and freight. By the dangers of the seas, he was prevented from bringing them further than the Derwent; and then he had therefore a right to sell them as against the plaintiffs, whatever was his duty to his underwriters. The plaintiff's rights were gone by the dangers of the seas; and the defendant was not to speculate for them that they will take the goods as damaged. And who was to pay the Surrey's freight? Was the defendant out of his £12 10s. and £10? That freight was fixed under the contemplation that no other vessel than the Greyhound would be necessary to bring in the cargo, which, by the execution in the bond, of the dangers of the seas, it could not do. Hopeless of his own freight, and obliged to make the best he could of his cargo at the Derwent, why then was he to incur an additional outlay of £3 per ton, after he had paid which, the plaintiffs might have justly said " You are too late: your cargo is not in good condition; and even if it were, all the freight we are bound to pay is £12 10s. and £10".
The third and fourth breaches were proved to have been committed: the excuse for not marking the goods was that it was doubtful, till the arrival of the ship here, whether they would become the plaintiffs property; and the excuse for not verifying their cost was that the shipper in Calcutta refused to do it; but the law being that what a man binds himself that another shall do, that other most, or the obligor must pay damages for not being done, Mr Justice Field left it to the Court to say what damage the plaintiffs had sustained by reason of the defendants not having marked and sworn to the prices of goods which have, by the dangers of the seas, be prevented from becoming their property. That the price of such goods was not sworn to, could be no damage at all to the plaintiffs; and that they were not marked, could only reprise of them of the gratification of seeing the [?] on every package.
The Court therefore assessed the plaintiff's damages on these breaches ...

Note

[1] In one of his most detailed judgments, in this case Field J. analysed the rights under a charter party. In doing so, he once again demonstrated his sometimes impenetrable prose style.

The Supreme Court awarded damages of one farthing on one count and one shilling on another. Terry appealed to the Court of Appeals, which confirmed the judgment of the Supreme Court. See Minute Books (Court of Appeals), 16 June 1817-20 April 1824, State Records N.S.W., 4/6604 at 28-34; and see Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, 9/2219 (no. 174).

Published by the Division of Law, Macquarie University