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Colonial Cases

Dimech v. Corlett, 1858


Dimech v. Corlett

Judicial Committee of the Privy Council
22 June 1858
Source: The Times, 23 June, 1858

JUNE 22.

(Before Dr. Lushington, Mr. Pemberton-Leigh, Sir G. Cresswell, and Sir J. Coleridge.)
  This was an appeal from a sentence of the Royal Court of Appeal of the island of Malta. The appellant is the administrator of the Malta Navigation Company, and the respondent is a merchant of Malta.  On the 24th of February, 1854, the respondent chartered the bark Sextus, then belonging to the company, and commanded by Captain Barbara, by a charter-party, in which it was described as "coppered A. I. , of Malta, of the measurement of  423 tons register or thereabouts, now at anchor in this port."  It was agreed by the charter-party that the bark being tight, staunch, and strong, properly maintained, and in every way fitted for the voyage, should, with all convenient speed, proceed in ballast to Alexandria in Egypt, and there load a cargo, and proceed to the United Kingdom, the freight to be at certain specified rates, 40 working days to be allowed for loading and unloading, and 10 days in demurrage over and above the lay days. The bark, however, not being entirely coppered at the date of the charter-party, did not sail from Malta until the 30th of March, and did not arrive at Alexandria until the 12th of April, 1854. In the meantime, on the 12th of March, the respondent's agent at Alexandria had assigned the charter-party to Mr. Antonides, a Russian merchant, who, in consequence of the delay which had taken place afterwards, refused to accept it, a considerable fall in freights having occurred in the interval.   It was, however, decided by the Chancellor of the Austrian Consulate, before whom the matter was brought, that the cession to Antonides was valid.
  Proceedings were also commenced before the tribunal of the British Consulate at Alexandria, which refused to decide in favour of the claim of the respondent's agent, that Captain Barbara was bound to oblige Antonides to consign a cargo.
On the 11th of May Antonides gave notice to Captain Barbara that he was ready to load the Sextus on being indemnified for the delay in her sailing, but the offer was refused, and on the 24th of June Captain Barbara returned with the Sextus to Malta, earning 77 l. net freight by the voyage. A petition was then presented by the appellant, claiming 2,016 l. as penalty, costs, and damages, for non-performance of the charter-party from the respondents, which resulted in the decree now appealed against, to the effect that the owners of the bark had not fulfilled the conditions in the charter-party, that the delay which had taken place in the sailing of the boat was attributable to them, and consequently that they could not recover their claim from the respondent.
  It was contended, in support of the appeal, that the meaning of the charter-party was not that the vessel was at that date fit for the voyage, but that she should be fitted for it within a reasonable time; that this condition was fulfilled by the owners, and that the delay was not such as to frustrate the objects of the voyage.
  Mr. Bovill, Q.C., and Mr. Archbold were counsel for the appellant; Mr. J. Wild, Q.C., and Mr. Honeyman for the respondent.
  Their Lordships took time to consider their decision.

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