Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Aberdeenshire in an action raised by John Davidson, shipowner, Cullen, against Peter Bisset & Son, contractors, Aberdeen. The summons concluded for payment of £83, being the amount of freight earned by the schooner “Mary, ” of which John Hay was master, from London to Cruden and Aberdeen, conform to charter-party and bills of lading, dated respectively 27th July and 4th August 1875, under deduction of £27, 10s. paid by the defenders, leaving £56, 11s. alleged to be due.

The charter-party contained, besides the usual clauses, the following:—The vessel was to load “a full and complete cargo of cement in bags, say not less than 100 tons, for Aberdeen. The cargo to be brought alongside and taken from alongside, at merchants' risk and expense—not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded shall therewith proceed to Aberdeen and Cruden, or so near thereunto as she may safely get, and deliver the same on being paid freight—five shillings and sixpence per ton for Aberdeen, twelve shillings per ton for Cruden, with one guinea gratuity.”

On the other hand, the bill of lading certified the shipment of 1900 sacks on board the “Mary” for Cruden and Aberdeen, and proceeded to narrate that these “are to be delivered in the like good order and well conditioned at the aforesaid ports of Cruden and Aberdeen.”

The defence to the action was a denial of liability, in respect the contract contained in the charter-party had not been fulfilled by the pursuer or the ship's captain. By it the defender averred the captain undertook to proceed in the vessel “Mary” with a cargo of cement for Aberdeen and Cruden, not less than 100 tons of which were to be left in Aberdeen, and the rest taken to Cruden. Instead of doing this, however, the pursuer or master proceeded to Cruden, in the first place, with the whole cargo, where there was not depth of water for a vessel so heavily laden to get near the shore to land the cargo. The vessel afterwards returned to Aberdeen, but the pursuer or master landed the whole cargo there, and refused to return to Cruden with any part of it, in terms of his contract, though he was asked to do so in writing. The defenders stated that they were willing to pay freight at the rate of 5s. 6d. per ton on the whole cargo, being the freight agreed on for the part to be delivered in Aberdeen, under deduction of the sums paid to account, reserving their claim for damage for part of the cargo which was delivered in a damaged state.

After a proof, the result of which sufficiently appears from the judgments in the cause, the Sheriff-Substitute ( Comrie Thomson), on 21st July 1877, pronounced the following interlocutor:—“Having considered the cause, Finds that, on a sound construction of the charter-party and bills of lading founded on, the pursuer was entitled to take his vessel in the first place to Cruden: Finds that he did so; that it was impossible for him to enter the creek, and that the defenders had made no provision for the pursuer discharging into barges or boats; that he was in consequence ordered by the defenders immediately to proceed south to Aberdeen, which he did, and there commenced to discharge his cargo; that the defenders wished him, when there still remained on board from 90 to 100 tons of cement, to return to Cruden with that quantity; that the pursuer declined to do so, on the ground that he had already implemented his contract: Finds, as matter of law, that the pursuer was justified in the said refusal, and that, having discharged the whole cargo at Aberdeen, the defenders are bound to pay the freight as stipulated: Therefore decerns in terms of the conclusions of the libel: Finds the pursuer entitled to expenses, & c.

Note.—The pursuer is the owner of a vessel which sometime ago was lying in the Thames. He wished to get a cargo to the north-east coast of Scotland, and the result of his negotiations with certain shipbrokers in London was that the charter-party was entered into. By this it was agreed that the vessel was to load 190 tons of cement in bags. These words were added—‘Say not less than 100 tons for Aberdeen.’ The charter-party then proceeded to state the ports of discharge to be Aberdeen and Cruden. In MS. there is added—The Cruden parcel to be ‘discharged or received immediately ship arrives.’ The pursuer depones that when the charter-party was being written out he objected to Aberdeen being entered first as the place to which he was to proceed, but that he was told that it did not matter, as he might go either to Aberdeen or Cruden as he thought best; and also that the matter would be put right in the bills of lading. There is no direct corroboration of this conversation, but the bills of lading themselves show that the order of the ports of discharge was altered, it being there set forth that the ship was bound for Cruden and Aberdeen; and in the clause which specifies the ports of delivery they are mentioned in the same order.

The vessel arrived at Cruden Bay; she was drawing too much water for her to get into the harbour creek; she lay to as far as she could the greater part of the day. The master went on shore and put himself in communication with those who represented the defenders. There was no means of discharging into boats, and there were no men, even if there had been boats, because it was the herring-fishing season. It seems that one of the defenders appeared in the course of the day, and he sent out to the ship the note containing these words, “On to Aberdeen.” Further, the pilot, the defender, and apparently some of his men, waved a flag or handkerchief as a signal to the pursuer to go on to Aberdeen. The pursuer did so, and discharged his cargo in that port; the defenders asked him to return to Cruden with that part of the cargo which they wished to use there, but this the pursuer declined to do.

These being the facts of the case, I am of opinion (1) that although, strictly speaking, the

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charter-party and the bill of lading ought to agree, yet there is a well understood practice which among shippers must be recognised as the law on the point, to the effect that when these documents differ on such a matter as the destination of the vessel, the bill of lading overrides and controls the charter-party.

I suppose that the basis upon which underwriters go is the bill of lading, although probably it is more correct to say that the underwriter is only bound according to the contract which is represented to him. (2) In the present case it is proved that the pursuer complied with the order of destination prescribed by what I hold to be the ruling document. He did everything that was in his power to discharge at Cruden, and it was the business of the consignees, as was expressly stipulated, to receive immediately on arrival, which they failed to do. The little port of Cruden, now greatly improved, is not, I think, mentioned in the sailing directions, and the four things which the captain knew were his own draught of water, the depth of water in the bay, the order of destination in the bill of lading, and that his merchant ordered him away on the ground that he could not discharge. I do not see he could have done otherwise than go to Aberdeen and refuse to return to Cruden.”

The Sheriff ( Guthrie Smith) on appeal recalled this interlocutor, and found on 19th October 1877:—“That through the fault of the pursuer no part of the cement in question was discharged at Cruden, but that the whole cargo, amounting to 192½ tons, was delivered at Aberdeen: That in these circumstances, under the charter-party founded on, the pursuer is only entitled to freight at the rate of 5s. 6d. per ton, and that, deducting £27, 10s. paid to account, the sum due, including £1, 1s. of gratuity, is £26, 9s. 9d.

Note.—By the charter-party produced the pursuer's vessel was to bring a cargo of cement from London to Aberdeen and Cruden, ‘say not less than 100 tons for Aberdeen, ’ meaning thereby that having discharged that quantity in Aberdeen she should proceed with the balance to Cruden, where the depth of water is limited. But the captain, thinking no doubt that this involved his returning from Cruden empty, and that there was a better chance of getting a return cargo at Aberdeen, proceeded direct to Cruden, and finding that his ship with the entire cargo on board was too deep for the harbour, never got in at all, and brought the cement all on to Aberdeen, where the whole was delivered. The Sheriff considers that in these circumstances he is only entitled to the Aberdeen freight, 5s. 6d. per ton. The Cruden freight, 12s. per ton, was never landed, and it was entirely the fault of the master himself that it was not earned. The charter-party provides that he should first go to Aberdeen. The captain himself so read it, and says he objected at the time, and the expression was altered in the bill of lading to ‘Cruden and Aberdeen.’ This is denied on the other side, but it is enough to observe that the bill of lading was not the proper document on which to make the alteration. ‘It is usual for the master to sign and give bills of lading in like manner if there were no charter-party; but nevertheless, as far as the charterer is concerned, they are little more than evidence of the delivery and receipt and shipping of the merchandise, for the charter-party is the controlling contract as to all the terms and provisions which it expresses’ (Parson's on Shipping, 287). It is the writing which proves what the contract is as to the employment of the ship, and when an alteration comes to be needed, it is quite easy to have an indorsement made on the margin. Further, even although the point had been left ambiguous, he was bound to come to Aberdeen first, if, as plainly appears from the evidence, that was the only practicable way of executing his contract. The freight to Cruden has thus been never earned, and he has rendered himself liable in damages to the charterers, namely, the cost of conveying the Cruden cement overland; but as that claim was not insisted on at the debate, he has been allowed the freight of the entire cargo calculated at the Aberdeen rate.”

The pursuer appealed to the Court of Session.

At advising—