Scottish Court of Session Decisions

By charter-party dated 26th February 1887 Alexander Miller, Brother, & Company, merchants, Glasgow, hired from Hugh Hogarth, the managing owner, the steamship “Westfalia” on a charter for a voyage to the West Coast of Africa and back, with the option of continuing the hire for another voyage. Hire was to be paid at 8s. per ton per month in advance. The owner undertook to provide officers and crew, and maintain the vessel in stores, and “in a thoroughly efficient state in hull and machinery for the service.” It was also provided—“That in the event of loss of time from deficiency of men or stores, breakdown of machinery, want of repairs, or damage, whereby the working of the vessel is stopped for more than forty-eight consecutive working hours, the payment of hire shall cease until she be again in an efficient state to resume her service, but should the vessel be driven into port or to anchorage by stress of weather, or from any accident to the cargo, such detention or loss of time shall be at the charterers' risk and expense. Quarantine (if any) at charterers' expense. That should the vessel be lost, any freight paid in advance, and not earned (reckoning from the date of her loss), shall be returned to the charterers. The act of God, the Queen's enemies, fire, restraints of princes, rulers, and people, and all other dangers and accidents of the sea, rivers, machinery, boilers, and steam navigation throughout this charter-party always excepted.” The ship performed one voyage, and under their option the hirers continued to send her for another voyage. She left the West Coast of Africa with a cargo of kernels and palm oil on the 14th September 1887. On the 30th September the high-pressure engine broke down, by the piston-rod breaking. She made her way to Las Palmas in the Canary Islands under sail, and by the help of her low-pressure engine. She reached Las Palmas on the 2nd October. She was surveyed there, and the surveyors declined to give a certificate of seaworthiness. News of her condition was sent to the owners. It was impossible to repair her without great delay and expense. The surveyors declined to authorise an attempt to proceed home under her low-pressure engine. After certain negotiations between the owner and the charterers an arrangement was come to by which the tug “William Joliffe” was sent to her assistance. The expense of the tug was to be treated as general average, the charterers paying in proportion to the value of the cargo, the owner in proportion to that of the vessel. The tug went out and took the “Westfalia” in tow, and left Las Palmas upon 18th October. She arrived at Harburg, her port of destination, on 31st October, and commenced discharging her cargo. The discharging of the cargo took

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until 10th November. Engines and engineers had been sent from England to Harburg, and the repairs to the vessel went on simultaneously with the cargo discharging, but the repairs were not finished until 11th November. She then left for England. The charterers paid their share of the cost of the tug.

The owners brought an action against the charterers for hire for the voyage home from Las Palmas under tow and for the time taken to unload, in all from 18th October to 10th November, which at the stipulated rate amounted to £341, 4s. 8d.

The pursuers averred—(Cond. 4) “Under the said charter-party the rate of hire payable by the defenders to the pursuers for said steamship is 8s. sterling per gross register ton per calendar month. The defenders are due to the pursuers hire at said rate for said steamship for the period from 18th October to 10th November 1887 inclusive, amounting, as per account herewith produced, to £341, 4s. 8d. At least from and after 18th October the said ship was in an efficient state to resume her service; and she was from at least 18th October engaged on her service under said charter and actively pursuing her voyage, and continued to do so till 18th November. If the said ship had not been efficient, and but for the services rendered by her upon and after 18th October, neither she nor the cargo would have reached the port of discharge till long after they did, and the defenders would thus have suffered very serious loss. The value of the services thus rendered by the said ship to the defenders, and the benefit thereby derived by the defenders, who in consequence recovered their full freight and got the said ship ready for another voyage, all precisely as if there had been no accident, amounts to not less than the amount sued for.”

The defenders in answer relied on the breakdown clause above quoted. They stated that the ship had broken down, and that they had paid their share of the cost of the tug, £867. They denied further liability.

The pursuers pleaded—“(2) In terms of the charter-party freight being due for the period from 18th October, decree should be granted as concluded for. (3) In respect of the services rendered by the said ship to the defenders on and after 18th October, which benefited the defenders to at least the extent of the sum sued for, the pursuers are entitled to decree as concluded for.”

The defenders pleaded—“(2) In terms of the clause of the charter-party quoted, no freight having been due for the period from 30th September to 10th November, the defenders are entitled to absolvitor. (3) The charter-party having between 18th October and 10th November been superseded by the average agreement, and the defenders having paid their contribution under that agreement for bringing the ship and cargo to Harburg as fixed by the average adjuster, are entitled to absolvitor with expenses.”

Proof was led. It appeared that the length of the voyage from Las Palmas to Harburg under tow did not much, if at all, exceed an ordinary voyage. The weather was thick but calm. The pursuers led evidence to show that the ship could have come home safely under the low-pressure engine alone. It appeared, however, that the ship did not at least reverse steam easily in her condition, and that she had great difficulty in getting into the harbour when she put into Las Palmas from that reason. The high-pressure engine was quite useless till repaired at Harburg.

Murphy, marine superintendent to the defenders, deponed—“Even if the ship could have been repaired at Las Palmas, it would have taken at least a couple of months to get the machinery sent out and to do the repairs.”

Upon 31st October 1888 the Lord Ordinary ( Trayner) found the defenders liable to the pursuers in the sum of £320, for which he decerned.

“ Opinion.—The ‘Westfalia’ was chartered by the defenders, they binding themselves by the charter-party to pay hire for the steamer at a certain rate per gross registered ton. It was stipulated, however, ‘that in the event of any loss of time from … break-down of machinery … the payment of hire shall cease until she be again in an efficient state to resume her service.’

The high-pressure engine of the ‘Westfalia’ broke down on the morning of the 30th September, and the ship put back to Las Palmas where she remained till 18th October, during which time she was surveyed and declared, by some of the surveyors at least, to be unseaworthy. No repairs were executed on the engine at Las Palmas, because there were no means of executing such repairs. The ‘Westfalia’ left Las Palmas on 18th October under steam, with her low-pressure engine alone working, accompanied, and in some measure assisted, by a tug steamer sent out from England. She arrived at Harburg, her port of destination, on the 31st October, where she delivered the part of her cargo deliverable there. The high-pressure engine was repaired at Harburg, and the ‘Westfalia’ sailed again for Antwerp with the remainder of her cargo on 11th November.

The pursuers seek decree for the hire of the steamer for the period between 18th October and 10th November, which the defenders refuse to pay on the ground that the ‘Westfalia’ was not in ‘an efficient state to resume her service’ during that period. I think the defenders are wrong. The service which the steamer was bound to render to the defenders under the charter-party was to carry the cargo to the port of delivery. That the ‘Westfalia’ was in a condition efficiently to render this service is best proved by the fact that she did it. The cargo was carried and safely delivered. The breakdown in the machinery had not rendered the steamer inefficient for her service, although it had made her less efficient than she had been; and had she proceeded on her voyage instead of putting back when the engine broke down (as on the evidence I am prepared to hold she could quite safely have done) I think there would have been no reason for suggesting that her full hire had not been earned.

The defenders, however, plead that they are not liable for the hire sued for, because they have had to pay more than the amount of the hire on account of the tug steamer sent out to her aid. I think this affords no answer to the pursuers' claim. The tug was sent out because, all concerned were desirous of having the ‘Westfalia’ home as soon as possible, for the reasons stated by Mr Hogarth. Had the expense of the

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tug been borne by the pursuers alone, the defenders could plainly not have pleaded that the assistance rendered by the tug had absolved them from their liability for the hire of the ‘Westfalia.’ Nor in the circumstances can they plead this, although they paid a part of the expense of the tug, for they agreed that the whole expense of the tug should be treated as general average, and it was so treated. But payment of general average, whether the amount be large or small, does not exempt a consignee from liability for freight, nor affect the ship-owner's right to his hire which comes to him in place of freight. There is no evidence whatever that the arrangement made as to average was intended to supersede or affect to any extent the rights and obligations of parties under the charter-party.

It was suggested rather than argued that the ‘Westfalia’ was unable to earn her hire from Las Palmas because she was declared to be unseaworthy. But an unseaworthy ship may earn freight, of which there was a notable instance in the case of Turner ( 1 Macq. 334), where freight was earned by a ship rendered so unseaworthy that her owners were held entitled to abandon her as a constructive loss. As I have said, the hire of the ‘Westfalia’ came to her owners in place of freight, and was earned if the service was rendered, whether the ‘Westfalia’ was seaworthy or not.

The voyage in question from Las Palmas did not exceed much, if any, the average time occupied by the ‘Westfalia’ on such a voyage. Yet it does appear from the evidence of the pursuers' own witnesses that the ‘Westfalia’ did not go at the full speed customary with her when both her engines were working. Whether this, on a strict construction of the charter-party, entitles the defenders to any deduction from the stipulated hire I am by no means clear, but I think they are in equity entitled to some deduction in the circumstances, and accordingly I will allow them £21, 4s. 8d., which is nearly equal to the amount of the steamer's hire for a day and half.”

The defenders reclaimed, and argued—This ship sailed not under an ordinary contract of affreightment, but under a special contract of hire. Under the usual charter-party the ship did not earn freight unless she delivered her cargo safely, but here the hire was paid monthly in advance even if no cargo had been procured. For such a contract see Havelock v. Geddes, February 9, 1809, 10 East. 555; Carver on Carriage by Sea, 117, 54. The only condition on which freight was to be paid was that the vessel remained in a seaworthy and efficient condition. First, was she in that condition during the period for which freight was claimed? It was admitted that from 30th September, when her high-pressure engine broke down, and the 18th October, when she left Las Palmas in tow of the tug, that she was not seaworthy. The owners did not ask for freight for that time. The surveyors would not give her a certificate of seaworthiness. It was alleged by several witnesses that she could have come home with safety working with the low-pressure boiler only, but from the difficulty that she experienced in making Las Palmas that evidence could not be trusted to. The fact was that no attempt was made to navigate her to England by her own power. The ship being thus unseaworthy and inefficient, did the sending out of the tug bring her back to an efficient condition? That could not be allowed. The vessel lay inefficient at Las Palmas. If she was to be repaired there so as to put her into an efficient condition, materials and engineers would have to be sent out there, and the time it would take to perform the necessary repairs would be two months. Instead of that the parties thought that it would be better for all interests to bring this unseaworthy ship to Europe and have her made efficient there. They entered into an agreement to do so, and the vessel was brought home and repaired so as to be efficient at Harburg. It would be hard if the defenders bad to pay both for a tug to bring the ship home and also hire, on the footing that she was an efficient ship. The vessel was not made efficient by sending out the tug, as if she had been repaired at Las Palmas. The defenders were willing to pay freight for a period equal to the usual time taken in discharging such a cargo as this. They would allow three days for that. But the putting in of the engines took 11 days and they could not be called upon to pay for the whole time.

The respondents argued—This was not different from an ordinary charter-party in the way suggested by the pursuers. The vessel was hired for a voyage to carry her cargo; she did complete the voyage and brought her cargo safe home, therefore she was entitled to earn freight. Under the charter — party the only thing that the charterers could set-off against or demand for freight was loss of time. To say that the vessel was unfit if she lost no time on her voyage was not an answer to a claim for freight. It was admitted that the vessel was not efficient during the time she lay at Las Palmas, because the surveyors refused her a certificate, but under the arrangement between the pursuers and defenders a tug was sent out. The arrival of the tug made her efficient, just as if the pursuer had sent out engineers and boilers to Las Palmas. The engines of the tug took the place of the engines on board the “Westfalia.” The time that was taken to reach Harburg was very little more, if any, than would have been taken to get there by her own steaming. Therefore she was efficient and seaworthy in the sense of the charter-party on her voyage from 18th to 31st October. The agreement was concluded on the basis of general average, and was so looked upon and used by the general adjuster at Harburg. In a general average both parties have to make a sacrifice; here the defenders paid £800 in order to get their goods home in time. The defenders could not put a claim under the agreement of average against a demand for freight by the shipowners. They had agreed to pay their share of the towage on the basis of the value of the ship and the cargo respectively, but that did not supersede the charter-party. If the defenders did not pay the freight, then they did not pay their share of the general average as regarded the value of the cargo. The pursuers claimed hire for the whole time of discharging the vessel—Scrutton on Charter-Parties, pp. 2, 3.

At advising—