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

Hunt v. Loane; Loane v. Hunt [1820] NSWKR 13; [1820] NSWSupC 13

shipping, charter party

Supreme Court
Field J., Fourth Term 1820
Source: Sydney Gazette, 30 December 1820

These were cross actions for breach of a charter party, dated at Hobart Town, 22nd May, 1820, by which the parties mutually bound themselves in the penalty of £3000, Captain Hunt to let to Mr. Loane and Mr. Loane to hire of Captain Hunt, the ship Eliza, of 511 tons, for 12 months certain, at 21s. per ton per month, the payment of the same to be quarterly, and the first payment to be made within ten days after the arrival of the said ship at Sydney, and continue to pay one quarter in advance. The first payment was duly made, but Captain Hunt brought his action and assigned breaches for the second due in advance on the 22nd August, third on the 22nd November. Mr. Loane, having by some negligence omitted to plead, was let in to do so at the trial, and pleaded in bar, and besides the general issue & payment, that the ship was not properly manned and provided with boats to lade cargo, that she did not sail from this port in a reasonable time, that she put back unnecessarily, and that she deviated from her passage to the Derwent in order to catch whales. Although these pleas, not being conditions precedent to the payment of a hire of the ship, the subject of a cross action, were demurrable, yet Captain Hunt having taken issue upon them in his replication, the Court suffered evidence to be given upon them, in assessing the damages due to Captain Hunt; but upon the trial of the first cause, Mr. Loane failed to prove any one of his plans, and it appearing that the second and third payments were not made in advance. Captain Hunt obtained a verdict for the penalty as security for subsequent breaches; and the Court assessed the damages upon the breach in non-payment of the second instalment at only one shilling (the instalment appearing upon balance of accounts between the parties to have been paid to Captain Hunt), and upon the breach in non-payment of the third instalment at £250 11s. 8d. In assessing these damages the Court deducted £ 100, which Captain Hunt charged as a remuneration for collecting previous to the charter party more than £800 worth of freight, of which Mr. Loane had the benefit, and also the hire of the ship from 23rd of October to 24th November, during which time Captain Hunt refused to receive Mr Loane's orders till he had paid the balance then claimed with costs. The learned Judge (Field) was of opinion that unless Captain Hunt had stood upon his charter-party for his payment in advance, as a condition precedent to the whole letting of the ship, which it might be considered, he had no right in point of equity to have damages assessed him, for the use of his ship during that month, in which he refused Mr. Loane the use of it till a disputed balance between them should be adjusted.
At the trial of the cross action, which lasted from eleven o'clock till nearly seven, Mr. Loane assigned, besides the breaches pleaded by him in the first cause, an unnecessary delay in landing here the second cargo from the Derwent, Captain Hunt's refusal from the 24th October till then to proceed to the Huon River for cargo, ought to receive his orders and his employing his men and boats for the benefit of himself and others. This gave Mr. Loane all the advantages of a new trial; and as it appeared upon both trials that the Eliza struck upon a sunken rock in the River Huon, when last at the southward, employed in collecting Mr. Loane's spars, his Attorney (Mr. Garling) contended that he was either entitled to a deduction of hire for the time she was repairing this damage, if the accident was occasioned by the master's fault, or to the loss of freight which the underwriters would be liable to pay, if it was not. It was clearly proved at both trials that the pilot was in charge of the ship; and the Court thought that in a river so little navigated as the Huon, no blame was imputable to any body for the accident; and as to insurance, the evidence of the existence of a policy even upon the ship was only hearsay, and it did not appear at all whether the freight was insured. At any rate, the benefit of no policy on freight was stipulated by the charter-party to relieve Mr. Loane; and it appeared from the case of Havelock v. Giddes, 10 East, 555, quoted by Mr. Norton for Captain Hunt, that if the ship becomes out of repair from an accident, while in the employ of the freighter and not in the employ of the master or owners, the freighter has no right to deduct anything out of the freight. In the course of things (said Lord Ellenborough) it was to be expected that the ship might want repairs in the course of twelve months, and when the freighter was making his bargain, he should have stipulated to deduct the time, which might be exhausted in those repairs. In this case, Mr Justice Field said, the charterer, so far from stipulating for any deduction for accidental loss of time, agreed to pay the freight in advance, which (if he had done) he would not have been able to recover it back, and would thus have saved the underwriters on freight from liability to indemnify the assured for this partial loss. At the second trial the Court upon the new evidence, were of opinion that Captain Hunt did not sail from Port Jackson within a reasonable time, and having sailed, did unnecessarily put back into this Port from Saturday the 15th and Monday the 17th July, in consequence of the Neptune's arrival from England soon after the Eliza had sailed; and they therefore found a counter verdict for Mr. Loane for the penalty as a security for future breaches on the part of Captain Hunt, and assessed the damages on these breaches at £321 19s.

Hunt v. Loane - Loane v. Hunt

Supreme Court
Field J., Third Term 1821
Source: Sydney Gazette, 15 September 1821

The following judgement in these causes was delivered by Mr. Justice Field:
These are new trials of cross actions for breach of a charter-party, which were granted upon Mr. Norton's application on the half of Captain Hunt; and he contended that the Court should not, in point of law, have disallowed him a month's freight of the ship Eliza, during which time the Captain refused Mr. Loane the use of her by reason of non-payment of the balance due on the charter-party; for Mr. Norton maintains that, by the terms of the deed, the freight was to be paid in advance, and that therefore the payment of the freight was a condition precedent to the letting of the ship; and he shews that he did stand upon his charter-party for payment in advance, for the first letter he wrote to Mr. Loane at the time said: "I am instructed by Captain Hunt to apply to you for balance of his account rendered, and to inform you that unless you immediately comply with the terms of your charter-party, by advancing the money due him, he will hold you liable for the breach, and commence an action for the penalty." Upon this point, the Court granted Captain Hunt a new trial, and also opened the evidence to Mr. Loane, who, at the late Circuit to Van Diemen's Land, cause the pilot of the River Derwent and in its branches to be examined, cutting the ship's striking on a funk and rock in the River Huon, which cause the loss of a months time in repairing the damage thereby sustained. At Van Diemen's Land, Mr. Raine was also examined concerning Captain Hunt's charge of £100 as a remuneration for collecting freight previous to the charter-party, which the Court had allowed Mr. Loane to deduct, and a sum of £46 15s. [?] For freight of goods consigned to Mr. Savage, which they had allowed him to surcharge Captain Hunt with. Not withstanding this further evidence, the present Court see no reason to disturb the verdict on account of the first of these sums; but it now appearing by the further examination of Mr. Lord that the second sum has never been paid to Captain Hunt, and that the goods were shipped as Mr. Loane's, and consigned to Mr. Savage, in part payment for a quantity of merchandise bought of him by Mr. Loane and Mr. Raine, the Court did not think this a case in which the master was bound to get the freight of the consignee before he delivered the goods, and they leave this item to be settled in the accounts between Mr. Loane and Mr. Savage, especially as the bill of lading runs_" freight being settled in account with Mr. Loane." the Court also think the evidence of Michael Mansfield; the Derwent pilot, coupled with that of the sailors who were examined at the former trial, most clear and convincing that the accident in the River Huon happened by the fault of the Master, and that therefore the freighter has a right to deduct for the loss of time, during which the accident was being repaired. As the Court are of opinion that Captain Hunt should not have been disallowed the month's freight, during which he justly refused Mr. Loane the use of the vessel, his verdict will still remain nearly the same as to hire of the ship; for it is a month's wrong deduction from Captain Hunt against a month's wrong allowance to him. The former time was from the 23rd October to 24th November, and the latter from the 20th of September to the 21st October. This will give Captain Hunt one more day's hire, and he is entitled to another day, which was deducted from him by mistake at the former trial, making an addition of £34 8s. 4d. to his former verdict of £ 250 11s. 8d. - these sounds, added to the - £46 15s. restored for the freight of Mr. Savage's goods, makes his total verdict £831 15s.

Published by the Division of Law, Macquarie University