346
353
THE HONGKONG WEEKLY PRESS, AND
[May 9, 1895, plied according to contract and the time when it party, loss for fall of market was given. Mayne Parang binding on them, Lord Esher saying, was ultimately sent to market after having been says (p. 15) In all the cases last referred to dried. Lord Campbell said that the defendant (including Ward v. The New York Central Rail had to decide that case I should have decided it For my part I do not wish to say that if I bad knew the purpose for which the threshing ma- way)" the carriage was by land. In a more re differently.' chine was wanted and it was in the contempla-oent case, however, it has been decided that the that in both the divisions, Admiralty and Queen's And at p. 341, it is stated tion of the parties damage by rain.might ensue, same principle does not apply to cases of carriage Bench, the rules, for assessing danges “are to the plaintiff's loss, bat, as regards the claim by sea." He then quotes the for loss from fall of market, he says this "is quite Parana, 1 Probate Division p. 452, and, on Apkinson, Law Reports, 8 Excheq p. 128,
case of The substantially the same." Featherstone v. Wil different, because it could not have been fore- peal. 2 Probate Division, p. 118, (8) A.D. 1877, decided in 1873, does not appear to me to seen by the parties that the market would Now fall. It was
this case has been upheld by the conflict with the later cases of the Parana and not in the contemplation of Court of Appeal in The Notting Hill (in Notting Hill. There, the plaintiff, a Newcastle the parties at the time they made the 1884), 9 Probate Division, p. 105, and I cannot merchant, entered into a charter party with contract, nor was it the natural consequence see my way to withdraw the present onse from defendants, shipowners, at West Hartlepool and of the breach of contract.” And, at p. 180, the application of the principles relating to owners of the Edith Emily, by which the latter Lord Campbell says:-"There was just as sea carriage which those cases lay down. Mr. bound themselves that the ship should, with all much chance of the market rising as falling." Robinson pointed out various differences between convenient speed, sail to Northumberland Dock, A large number of cases were cited in the course the present case and those cases, especially the on the river Tyne, and there, during the first or of the arguments, but I think it may be taken length of the voyage in the case of the Parana. second week in January, 1872, load and receive as clearly established law that, as stated A.D. But I do not think the length of the voyage, nor on board 1,300 tons of coal, which she should 1886 by Lord Esher in the case of Rodocanachi the other differences insisted on, much affect carry to Havre and there deliver. After the Milburn Brothers, Law Reports, 18 Q.B.D., the principle. The difference of principle seems execution of the charter party the plaintif wont at p 77, where the goods are not delivered at all to be based on other grounds. As Mellish (Lord to the offices of the Belside Colliery at New! by the carrier, "the damages are the market Justice) says (2 P.D. p. 121):-" It was said castle and verbally agreed, with the manag value of the goods when they ought to have that there can be no difference between the there, to take 1,300 tons of coal, at 10a, 6d'% Cơn arrived, minus the accruing freight." In that carriage of goods by railway and the carriage in the first or second week in January, 187. case the ship was lost by the negligence of the of goods by sea, but it appears to me there may The Adith Emily was accordingly put on the master and the action was for non-delivery of be a very material difference between the two "turn book" of the colliery for that time. Owing cargo. It must also be remembered that Smith cases. When goods are conveyed by railway, if to the defendant's default in sending the ship, sho Tregarthen in A.D. 1887, 56 L. J. (N. 8.), they are conveyed for the purpose of sale, it is lost her " torn" and it was impossible, secords Q.B.D., p. 437, was an action for non-delivery. usually for the purpose of immediate sale; and, if ing to the custom prevailing in the Tyne of The plaintiffs were indorsees of the bills of lading the cases are examined, I think it will be found loading ships “in turn,” for the plaintif to ob of 400 bales of cotton, per steamer Carlis Bay, that the Courts treated them as if the goods were tain his coal until he had substituted vessels to from Wilmington to Liverpool. Owing to in consigned for the purpose of immediate sale. carry it. As soon as practicable, he loaded 1,309 sufficient room only 165 were shipped, the rest No doubt if goods were consigned to a Railway tons of coal in two other ships, instead of in the coming on by another steamer, which arrived Company under such circumstances, the Rail Edith Emily, at an advanced freight of £27.10€ later. The Carlis Bay only delivered 165 and way Company may be reasonably supposed to paying also 1s. 6d. a ton extra for the coal.” It the action was for non-delivery of the rest. The know that they are consigned for the purpose of was not proved that the price of coal had risati plaintiffs were held entitled to recover the market immediate sale, and if by breach of contract on at Havre, though the plaintiff had had to value of the missing bales on the day they would the part of the company they do not arrive in more for it at Newcastle. It was held he have been delivered if shipped with the rest; time to be sold, when the owner intends them to entitled to recover the increased freight and the and as they received the missing bales a few be sold, that may possibly be a ground for giving extra amount he had had to pay for his coal. days afterwards by the other steamer, when the damages for what is called loss of market.” This case would have been a good authority tö market had fallen, the damages were reduced to Then, at p. 123, he proceeds: The difference show that, if Messrs. Carlowitz & Co. had been the extent of the market value of the missing between "cases of that kind and cases of the obliged to pay increased freight or more fog bales on the day they were delivered. Mr. carriage of goods for a long distance by sea coals at Moji, owing to the delay of the Iser în Justice Wills said: "It appears to me clear seems to me to be very obvious. In order that arriving there, they would have been entitled to that under the Bill of Lading Act, 1855, we are the damages may be recovered we must come to recover those items, but it did not decide that bound to treat this case as though the entire num-two conclusions-first, that it was reasonably cer
if the market had fallen at Havre, and...... ber of bales had been shipped on board the Carlis tain that the goods would not be sold until they the coals had realized less there, that aneh Bay. On her arrival 265 bales are missing and a did arrive; and secondly, that it was reasonably loss, incurred through the delay in sending the right of action arises for their market value. The certain that they would be sold immediately after the Edith Emily to Newcastle, could have been subsequent arrival and acceptance of the missing they arrived, and that that was known to the recovered, while the Parana and Notting Hill bales would be an answer only if taken in accord carrier at the time when the bills of lading were cases tend to show the contrary. On the whole; and satisfaction. The only result of the subse- signed." He adds:-" Goods imported by sea therefore, I am of opinion that the appeal must quent delivery is that a reduction of the dam. may be and are every day sold while they are at be allowed and that the judgment of the Cours ages is thereby effected. The cases cited (allud-sea. If the man who is importing goods finds below must be reversed. As regards costs, the ing to The Parana and The Notting Hill) are the market high and is afraid that the price may appellants having succeeded should have their distinguishable, because the right of action was fall, he is not usually prevented from selling his costs of this appeal as well as of the argument là for delay and not for non-delivery." Now, the goods because they are at sea. The sale of the Court below, but 1 give the costs of the re- learned Judge from whose decision this appeal goods to arrive, the sale of goods on transfer of ference to the Registrar to the respondents. is made said with regard to that distinction:-bill of lading with cost bills and insurance is a "With all due respect I cannot see why there common mercantile contract made every day." should be two systems or principles for assessing Now in the case of the Iser was it reasonably the damages." But I cannot forget that the certain the coals would not be sold until learned Judge in England who drew that distinc- they arrived ? The evidence is they were tion does not stand alone in calling attention to actually sold to arrive," though the arrival it, for Lord Justice Lopes, at page 70 of the Law was to be in January, and the evidence be Reports, vol. 18, in Rodocanachi v. Milburn fore the Registrar proved that in the case takes the same distinction, pointing out that the of coals imported from Japan sales were Parana was a case of delay in delivery and not made" to arrive" quite as often as after arrival. of non-delivery. It is true that a number of The decision in the Parana being upheld by cases of actions against land carriers, such as the Court of Appeal in the case of the Notting railways, were cited. No doubt, in the case of Hill is binding upon this Court, and I do not Collard v. South-Eastern Railway Co., 30 Law see any way to escape from these cases. In the Journal Exch. 393 (decided in 1861), where 13th edition of Lord Tenterden's "Treatise on hops were entrusted to the defendants for car- Merchant Ships and Seamen" (A.D. 1892) it is riage, but were delayed in carriage and delivered laid down that they apply equally "whether the in a partly damaged state through improper ex-olaim is made for breach of a charter party or a posure and had to be dried, causing further bill of lading (see p. 338), and at p. 340 occurs delay, the defendants had to pay for the loss the following passage:"The Notting Hill by occasioned by a fall in the market. If the case negligent navigation had come into collision, now under appeal had been a case of land carriage The ship was delayed for repairs and when she no doubt Collard v. 8. E. Railway Co. would reached her destination the market price of have been a strong authority in favour of the cargo had fallen heavily. Lord (then Sir J.) allowing the damage claimed. The American Hannen cited the following passage from the judg! Courts adopted a similar principle. In Mr. ment of Lord Blackburn in O'Hanlon v. The Sedgwicks's "Treatise on the Measure of Dam- Great Western Railway Co.:-The natural and ages (7th ed.), p. 110, he discusses some fair measure of damages is the value of the goods American cases, including Ward v. New York at the place and time at which they ought to have Central Railway Co., which, he says, settled the been delivered to the owner.' But notwith-"The principle is now settled that when olroum♪ question by deciding, "that where a carrier pmits to transport merchandise within a reason able time and its market value falls in the mean- time, the true rule of damages is the difference in its value at the time and place it ought to have been delivered and the time of its actual delivery." We are, however, dealing with English law and with sea carriage and no case was cited to me where for delay in delivering under a charter-
standing this language, the applicability of which he admitted, the learned President held with regret that he was bound by the Parana, as the Court of Appeal in that case had relied on a statement in the report of Mr. Rothery, the Admiralty Registrar, that it had never been the practice in the Admiralty Court to give such damages. The merchant appealed, but the Court of Appeal also held the decision in the
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The Acting Puisne Judge (His Hongar Mr. T. S. Smith)-In the charterparty under consideration attention is arrested by the insertion of a fixed date limiting the time for the loading of the cargo, and the question naturally arises-Why was a date inserted Had the subcharterers no object in placing a limits. tion upon the time of loading? In my mind there is no doubt that the object of the aub charterers in fixing a date of loading was that the cargo might be delivered at its destination in due course, allowing the usual time for load- ing and sea voyage. Mr. Andrew, in his evidence before the Acting Registrar, says, "I would 'give her four days to load and six days to come down to Hongkong." Upon the showing then of plaintiffs' agent, whether the date of loading is taken as the 15th or the 20th Janum / delivery in Hongkong would under normal off cumstances have been effected in January. I have no hesitation therefore in concluding that from the circumstance of a fixed date appearing in the contract the object, viz. delivery in Hong, kong within January, could be reasonably inferred, so that it might be taken to have been within the contemplation of both parties. In 2 P..D. 120. Mellish, L. J., in delivering the judgment of the Court of Appeal in the Parana case (quoting from Sir.Robt. Phillimore's reversed judgment)says sam stances are known to the carrier from which the object ought in reason to be inferred, so that the object may be taken to have been within the cond templation of both parties, damages may be re covered for the natural consequences of thật object," and, again, “damages for a brosch contract must be such as may fairly and resson ably be considered as arising naturally, LOUNG cording to the usual course of things, from
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