By charter-party between Wright Brothers and Company and Mackill and others it was agreed that Mackill’s vessel should proceed to Glasgow and there ‘load all such goods and merchandise as the charterers should tender alongside for shipment not exceeding what she could reasonably stow and carry,’ andc. The freight was fixed at a lump sum of pounds 2200, and it was provided-‘Owners guarantee that the vessel shall carry not less than 2000tons dead weight;’ and further-‘Should the vessel not carry the guaranteed dead weight as above, any expenses incurred from this cause to be borne by the owners, and a pro rata reduction per ton to be made from the first payment of freight.’ The ship was intended for a general cargo, partly of railway locomotive machinery, and the parties agreed upon and endorsed on the margin of the charter-party a note specifying the ‘largest pieces’ of machinery, and their number, weight, and measurement, which the cargo was to contain. Wright Brothers and Company tendered a cargo not exceeding 2000 tons dead weight, including locomotives and tenders, two lots of coal, and general goods. The large pieces of machinery exceeded the number stated in the marginal note. The vessel sailed with dead weight of 1691 tons. It was admitted that her capacity equalled the guarantee, and also that 2000 tons dead weight of the cargo tendered could not have been carried without packing the coal along with the machinery, which was not done. Wright Brothers and Company claimed a deduction in the freight, and Mackill and others raised this action for the balance unpaid.
Held (rev. the judgment of the Court of Session) that the marginal note was information afforded to the shipowners for the purposes of the contract; the cargo tendered was not such as was expected, as the bulk exceeded the proportion of dead weight indicated by the marginal note, and as it was owing to this that the vessel carried less than the guaranteed dead weight, Wright Brothers and Company were not entitled to the reduction claimed, and were liable in the whole freight as stipulated.
Held further (aff. the judgment of the Court of Session), that it was not proper stowage to stow coal among machinery unless with the consent of the shippers of the coal and of the machinery, and that the onus of obtaining such consent was on the charterers.
Judges:
Lord Chancellor ( Halsbury), and Lords Watson and Macnaghten
Citations:
[1889] UKHL 782, 26 SLR 782
Links:
Jurisdiction:
Scotland
Transport
Updated: 03 June 2022; Ref: scu.635178