The pursuer sued for freight for carrying a cargo of flour for the defender from Perth to Aberdeen. The pursuer did not insert sufficient planks to line the hold and protect the cargo from contact with the bilge water. He claimed that it was not customary to do so. When the flour was unloaded, part of the cargo was found to have been damaged by the bilge water. The cargo was sold, the damaged part at a reduced price. The reduction in value exceeded the freight. The pursuer sued for the freight before the Judge Admiral and the defender pleaded his loss by way of defence. The Judge Admiral was satisfied that the damage to the flour had been due to the pursuer’s fault in failing to line the hold properly. In view of the fact that the defender’s loss exceeded the freight, he assoilzied the defender. At the First Division, the pursuer argued that his claim for the freight was liquid and that the defender had to pay that liquid debt – leaving him to bring any claim for damages in a separate action.
Held: The First Division rejected that argument. The defender was saying that the pursuer was in breach of contract because had failed to make appropriate arrangements for carrying the flour to Aberdeen. So the pursuer had to show that, in the circumstances, he had earned the freight by duly performing his contract to carry the flour. Since his claim for freight was therefore illiquid, the defender was entitled to plead in defence the illiquid claim for loss which he had suffered as a result of the pursuer’s failure to make appropriate arrangements for carrying the flour.
Citations:
(1830) 9 S 113
Cited by:
Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Lists of cited by and citing cases may be incomplete.
Scotland
Updated: 06 May 2022; Ref: scu.410711