Barnard v. Lord
Supreme Court
Field J., 30 March 1819
Source: Sydney Gazette, 3 April 1819[1]

This was an action for freight under a charter party, by which the Plaintiff let his vessel the Sinbad to the Defendant, for a voyage from Launceston, in Van Diemen's Land, to Botany Bay and Sydney Cove. By the charter party the Defendant covenanted to furnish for freight, but by a memorandum at the foot of the deed, it was agreed that if the Defendant should not have enough wool to fill the ship, the Plaintiff was to have the remaining freight if he had goods; if not, it was to be filled up with the Defendant's goods. The Defendant's Agent had not enough goods to fill the ship, and gave notice to the Plaintiff accordingly; upon which the Plaintiff caused a survey to be made of the deficiency; and the first question now was, whether he had a right to charge for vacant freight.
It appeared in evidence that the Plaintiff might have filled up the deficiency with Mr. James Cox's [?]; but that he rather cause so light as to endanger the safety of the vessel, and render it necessary to take ballast on board, and that he brought 30 sheep and a considerable quantity of skins for himself, a few for Messrs Jones and Riley, and a cask of fat for Mrs. Reibey. Upon this question, therefore, the learned Judge (Field) read the law from Mr. Justice Abbott's Book, that even in case of a covenant to furnish full freight the Master ought to do his best to indemnify the Merchant by filling his ship with other people's goods if he consequently can and that a Jury would take all the circumstances into their consideration, and make due allowance to the Merchant for the profit which the Master may have made by bringing the goods of other persons. The next question related to the time of paying freight for the Defendant's goods actually brought; and a Defendant contended, that as the charter party bound him to pay the freight 15 days after arrival at Sydney Cove, he was entitled to have the goods before that time, even without tendering the freight. It appeared in evidence, that the Defendant had once or twice tendered the freight to the master; but had afterwards demanded the goods of the Plaintiff himself, refuting the freight, the 15 days not having expired. But the learned Judge held, that to take away the Owner's common-law right to retain the good till payment of freight, there must be an express stipulation in the charter party that the goods shall be delivered so many days after arrival: here the only stipulation was that the freight should be payable 15 days after: the Owner's right to keep the goods on board for the 15 days was not taken away by the charter party. The Court were therefore of opinion that the Plaintiff was justified in retaining part of the Defendant's goods (as he had done) till payment of the freight of all the goods actually brought; and found their verdict for him for that amount only, considering the charge for vacant freight wiped out by the Plaintiff's refusal of other freight at Launceston, and by the profit of his sheep, skins, and other people's goods.

Note

[1] See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2218 (no. 153).