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Colonial Cases

Yahichi v. Mourilyan and Heimann, 1875


Yahichi v. Mourilyan and Heimann

Supreme Court for China and Japan
Hornby C.J., 9 January 1875
Source: The North China Herald, 14 January 1875




Shanghai, Jan. 9th, 1875

Before SIR EDMUND HORNBY, Chief Judge.

His lordship delivered judgment to-day in the following cases:

CHAYA YAHICHI (plaintiff) appellant; WALTER MOURILYAN and CHARLES ADOLPH HEIMANN, trading as "Mourilyan, Heimann and Co.," (defendants) respondents/

On appeal from H.M.'s Court, Hiogo.


   It is not without considerable doubt that I have come to the conclusion that the judgment of the Court below must be set aside.  The ground upon which the Court proceeded was that there was no breach of the charter-party, inasmuch as the accident to the steamer fell within the clause in the charter-party, "the perils or dangers of the seas and navigation excepted," and was not the result of any neglect on the part of the master or any one on board the steamer.  It is clear from the cases with reference to these excepted clauses, that, in their absence, the master would be liable for non-performance of his contract of hire if, by reason of any accident, he failed to perform it, whether such accident was caused by circumstances over which he had or had not control.  This being so, it is clear that his original liability exists except so far as he has protected himself by the wording of what is usually called "the excepting clause." 

   In the present case, the delay which amounted to a breach of the charter was caused by an accident to the machinery while the ship was on her return voyage.  Now, accidents to the machinery are not one of the exceptions mentioned in the charter=party unless caused by the dangers of the sea or navigation, and the evidence shews that the accident took place while the sea was calm and the vessel on her regular course.  It is impossible, therefore, top say that it falls within the exceptions mentioned, by which the captain has limited his liability.  I have, therefore, to consider next, whether the delay which occurred between the 5th day of November and the 10th day of December - (the dates respectively of the happening of the accident and the bringing of the action) - is to be considered as amounting to a breach.

   The trial did not take place, it appears, until the 14th January, at which date the vessel had not arrived at Kobe, nor, indeed, did she arrive there until the 17th of February.  Now, it is impossible to read the charter-party without feeling that time was the essence if it.  The ship was to make three consecutive voyages - two days only were to be allowed for loading or discharging, after which the captain had given notice that he was ready to load or discharge, and a heavy demurrage is imposed on the charterer id he exceeds this allowance; the captain is also bound not to detain the vessel beyond this time, unless compelled by necessity.  The evidence shows that a voyage to Yokohama and back usually takes less than 10 days, allowing the time stipulated in the contract for loading and discharging, so that the vessel could have made three consecutive voyages within a month, and this, no doubt, was about the calculation of the parties.  An interval, however, elapses between the departure of the steamer on her return from Yokohama and the commencement of the suit, of 35 days, and, in fact, she does not arrive in Kobe ready to start on her second voyage for three months and a half from the termination of the first.

   This conclusively shews the extent of the accident; and I think, therefore, that the plaintiffs were justified, under the circumstances, in considering that a breach of the charter-party had been committed when they commenced their action.  There is nothing in the language of the charter-party would would lead one to assume that any delay was contemplated - on the contrary, it is clear from it that no delay was to be permitted; and as this was the evident intention of the parties, no construction must be given to it at variance with that intention.  It is unnecessary to refer to the numerous authorities to be found in the Text-books and reports, which shew that where, in a contract, no time for its performance is expressly mentioned, it is governed by what is reasonable - and what is reasonable is to be gathered from the nature of the contract itself, which should therefore be taken as a guide as to the time in which it should be performed; and in this case a delay of thirty-five days - taking it at the least - is certainly not a reasonable delay between one voyage and another, when all the three voyages might, under ordinary circumstances, have been performed within the month.

   I come now to the most difficult portion of the case - numeral, whether the plain tiff is entitled to recover the total amount of the charter money by way of penalty or liquidated damages for the breach.  I think the observations of the judges in the case of Betts v. Birch (28 L. of Ex. 267) are peculiarly applicable to this case.  Both Baron Martin and Baron Bramwell lament that the cases which have drawn a distinction between penalties and liquidated damages have in their result practically overruled the principle applicable to the interpretation of the written contracts - namely, that the proper mode of  ascertaining what a contract means is, first to ascertain what the express meaning it, and then to carry out that meaning; and that it would have been much better if Courts of Law had been left simply to ascertain what the parties had expressed, and then been permitted to compel the carrying out of such expressed bargains.  To my mind it is perfectly clear that what the parties meant b y the last clause in this charter-party is, that whoever committed a breach of it should pay to the other the total charter-money.

   I consider, however, that I am not at liberty to act upon that view with respect to this question, and however reluctant, I feel myself bound by the decided cases.  The term used in the last clause is "penalty."  The cases shew that where this word is used it is not to be held as meaning that the sum mentioned is to be paid at all events on the breach of the contract; but that the amount of damage proved to have been sustained is alone to be awarded; and the only exception seems to be, where the penalty is in the nature of a sum certain payable on the happening of one event only.  Sparrow and Paris (31 L. of Ex. 137) appears to be the latest authority on this subject.

   The question then is, is the total charter-money to be recoverable on the happening of one event only, or is it intended as a sum to secure the performance of several matters?  In the one case, although the word penalty is used it is so used as a convertible term for liquidated damagers, and the party observant could recover it from the party delinquent; in the other case, the meaning I have before given must be taken as alone applicable to it.  Now, although it may be said that the one event, upon the happening of which it becomes payable, is simply a breach, yet it is clear that it was intended to secure the performance of several matters; it was intended to secure the loading of the steamer by the charterer with a certain amount of description of cargo; it was intended to secure also that payment of a certain amount of demurrage by the charterer, on delay caused by him, as also a certain freight on each voyage; and it was intended to secure the performance of several conditions on the part of the captain.  Thus, several events are secured, and not only one, and the case thus falls within the principle enunciated in the case of Sparrow v. Paris.

   Being, therefore, of opinion that a breach of the charter-party has been committed, upon which some damage may have been sustained, I shall remit the case back to be reheard on that point, the plaintiff to be at liberty to adduce evidence of damage sustained.  As, however, he had the opportunity before of doing this, and neglected to avail himself of it, I shall leave each party to pay his own costs of this appeal.  The costs in the case below must depend on the result of the new trial.  If the plaintiff succeeds in proving damage to have been sustained, as indeed it appears to me he must do, since the bargain money was paid by him in consideration of the full performance of the whole contract, and only one-third of it has been performed - he must recover, plus such damages and bargain money, costs of the original suit and the new trial.


Source: The North China Herald, 14 January 1875


    We give to-day the texts of two judgments delivered by Sir Edmund Hornby at the Supreme Court on Saturday.

   The first is in the case of Chay-a-Sahichi v. Mourilyan Heimann & Co., appealed from the Consular Court at Hiogo, as to which his Lordship reverses the decision of the Court below.  Being of opinion that a breach of the charter-party had been committed on which some damage may have been sustained, his Lordship remits the case back, to be re-heard on that point, the plaintiff to be at liberty to adduce evidence of damage.  Each party (for reasons stated) to pay their own costs of the appeal, but costs in the original cause to depend on the result of the new trial.

   In the case of Malone v Walton, of which we gave a summary on Thursday, his Lordship allows plaintiff, late master of the Alexandra, 12s. 6d. beyond the amount paid into Court by defendant, the owner of the vessel, - each party to pay his own costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School