1939-08-28 — Page 4

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THE CHINA MAIL, AUGUST 26, 1939. -

SHIPPING COMPANY TO REPAY BACK FREIGHT

JUDGMENT WAS DELIVERED by Mr. Justice R. E. Lind-- sell this morning in the case concerning back freight, paid on shipment of a motor car but which was not de- livered when she was turned back by the Japanese as hostilities were about to break out in Swatow.

The cargo was returned to Hong Kong and the shippers had paid $120 back freight under protest, before they could take delivery in Hong Kong.

The plaintiffs, the Wai Loong Hong of No. 14, Wing Lock Street, repre- sented by Mr. F. H. Loseby, claimed return of the money from the Jeb- shun Shipping Company, charterers of the ship, represented by Mr. M. M. Watson.

Mr. Justice Lindsell said:-

In my judgment this claim inust succeed. The facts are simple and agreed and I need not recapitulate them.

OLAST 4 TIMES TO-DAY the appellant had shipped casks

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DEFENCES ON DUTCH FRONT

Amsterdam, To-day. German soldiers are feverish- ly working, putting up barbed- wire entanglements and groups of machine-gun and anti-aircraft emplacements on the Dutch-Ger- man frontier, according to re- ports from Oldehsaal, in East Holland-Reuter.

such carriage under the name of "back freight."

177)

re-

The defence. (if I appreciate it aright) was two-fold First Mr. Wat- son submitted that, leaving the bill of lading altogether out of account, the case was covered by the general prin- ciple laid down by the Privy Council in "Cargo ex Argos." In that case and in footnote (p) "semble, that, in of case the ship is prevented by except- petroleum for carriage from Londoned perils from reaching her port of to Havre. Upon the ship's arrival at destination, the ship-owner can Havre the Authorities requested the cover expenses and back freight in- captain to take her away in conse- curred in the interest of the cargo quence of the petroleum being ΟΠΙ owner: vide Notara V Henderson' board; thereupon he went to neigh- (1870) L.R.5.Q.B.346 and articles 101, bouring ports but was not allowed to | 103. stay there. Upon returning to Hav- re he unloaded his general cargo and discharged the casks of petroleum in- to a lighter where they remained for four days at the disposal of the con- signees. No bill of lading having been presented and application made to take delivery, the captain then reshipped the casks and brought them back to London.

no

NO PARALLEL

NOTHING IN SUPPORT

I have carefully read the report of the case of Notara v Henderson and can find nothing therein to support the view expressed by Scrutton.

Carver's Carriage by Sea, 6th Edn at p.109, gives a different statement of the Law:-"The cargo owner is only bound to repay expenses which have been incurred specially for the benefit of the goods. Expenditure in- On the ship-owners sueing for (in- curred on behalf of the adventure ter alia) back freight and expenses, it generally, as for example, in putting was held that where cargo has reach- into a port of refuge, can only be ed its port of destination and no ap-charged to him as a matter of general plication for delivery is made, the captain may land and warehouse it at the expense of the shipper and where that is forbidden by the port author- itles, he may in the absence of ad- vices take it to such a place as in hit judgment is most convenient for the shipper and may charge him with all expenses properly incurred, and that the ship-owners were therefore en- titled to back freight and expenses

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average contribution," and goes on to quote the Argos case in support of this more limited view.

Careful consideration has driven me to the conclusion that the wideness of the statement in Scrutton is not supported by authority and that the Judicial principle enunciated by the Committee in the Argos cargo case* amounts to no more than this, that where the consignee of cargo has had the opportunity of taking delivery at I can see no true parallel between the port of destination but has failed' that case and this. Here it was the to do so, and the cargo cannot be put ship herself that was compelled by ashore, the captain of the ship is en- an excepted peril to turn back before titled, in the absence of instructions, reaching her destination and the con- to put himself in the shoes of the the signee of the lorry never had an op- cargo owner and to deal with |portunity of taking delivery, whereas cargo in such a way as in his judg-- in the case of the Argos it was the ment, prudently exercised, appears to nature of the cargo that prevented its be in the best interests of the owner, discharge in the first Instance and and in such circumstances to charge“ when means of discharging it were him with all expenses properly in- later found the consignees did have curred whether by way of back freight the opportunity, of which they failed or otherwise. to avail themselves, of taking de- livery.

SCRUTTON DICTUM The circumstances of the two cases are thus clearly distinguishable and were it not for the statement of the law in Scrutton's Charter Parties and Bills of Lading (13th Edn) on pages 394-5 I should have had no hesitation In holding that the principles laid down in the Argos case have no!ap-. plication here.

What Scrutton says (article 185) is this:

"when the ship is either ready to deliver cargo at the port of de- stination or is prevented by ex- cepted perils from reaching such port (p), but the merchant does not take delivery or forward in- structions within reasonable time, the master.. has the power and the duty to deal with the cargo in the owners-interest and at the owners expense. He may land and ware- house it or, if that is impracticable, may carry it in his ship can charge the owner with muneration for and expenses

and re-

of

SPECIAL CONDITION"

This is the very position which the special condition chopped on the face. of the bill of lading in the present case is obviously intended to cover.. That condition reads as follows:--

"Consignees must take delivery promptly ex ship. Cargo unclaim- ed or undelivered will be returned to the port of shipment at ship- per's risk and expense., Double freightage to be charged "to ship- per."

Mr. Watson submitted as his se- cond ground of defence that the:. word "undelivered” includes any and every case of non-delivery whether on account of a consignee's default or by: reason of an excepted peril, and argu- ed that since non-delivery here was 'occasioned. by one of the perils ex- cepted by conditions 9 and/or -16 printed on the back, of the bill of lading the defendants were liable for back freight.

With this submission I am not in agreement. I am satisfied that the special condition cannot be read to (Continued "on Page 20)