A ship had been requisitioned after an instalment of advance hire had become due, leading to the frustration of the charterparty. The parties disputed whether the charterers were still liable to pay the hire in full.
Held: They were. The Tonnelier case had been so long acted upon in the time-chartering business and had been followed in such a multitude of settlements of ships’ accounts, that, unless it was manifestly wrong, it ought not to be overruled.
Lord Dunedin described the principle ‘frustra petis quod mox es restiturus’ as a ‘brocard’ of the civil law and held that judgment for the full charter hire should not be given where, although the hire had been due, it could be shown that it would be repayable in part, because, as Lord Dunedin put it, ‘it would be useless to give judgment for the respondents’ for more than the sum which was not repayable. Lord Dunedin said: ‘The question must therefore, in my opinion, be thus approached: On August 10 the respondents were bound to pay a month’s hire, on August 16 the further performance of the contract became impossible. Was there or was there not an accrued right on the appellants’ part to get repayment of such portion of the hire paid on August 10 as did not, as we conveniently term it in Scotland by a word which is wanting in English, ‘effeir’ to the period from August 10 to 16. The sheet anchor of the appellants’ argument is the expression used by Rigby L.J. and the Master of the Rolls in Tonnelier’s Case , that the payment in advance is ‘provisional’; coupled with the admission which had to be given by the respondents’ counsel that had there been a delivery at a coal port in the United Kingdom in the ordinary course on the 16th that sum would have been recoverable. I confess I was much moved by that argument, but on further consideration it appeared to me that the word ‘provisional’ might be too hard pressed. I do not think that by terming the payment ‘provisional’ the learned judges meant to say that the payment in advance was not really a payment, but only a deposit, leaving the question of payment over. The payment in advance is truly payment, but it can only be a payment of what the contract says is earned.’
Judges:
Lord Dunedin, Lord Sumner
Citations:
[1921] 2 AC 494
Jurisdiction:
England and Wales
Citing:
Approved – Tonnelier and Bolckow, Vaughan and Co v Smith and Weatherill and Co CA 1897
The charterparty required the charterers to pay hire monthly in advance at the rate of andpound;709 per calendar month and at the same rate for any part of a month until her redelivery.
Held: The charterers were liable to pay a full month’s . .
Cited by:
Cited – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Lists of cited by and citing cases may be incomplete.
Contract, Damages
Updated: 15 May 2022; Ref: scu.410698
