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					                Maritime Law Digital – Scotland, Session Cases Third Series List



                    Scotland, Session Cases Third Series

List of Cases

Third series – Principal reporter, Norman MacPherson. Published between 1861
and 1873 in 11 volumes.

This is cited by the volume number and name “MacPherson” (the original principal
editor) using the abbreviation “M”. In older books the abbreviation Macph is often
found. It is now usual to put the years of the case in round brackets. Thus: Bell v Gow
(1862) 1 M 183.

Many, but not all, of the cases reported in this series, were reprinted in the Scots
Revised Reports (published 1900-01). This reprint is similar in format to the English
reports, but with many cases not reprinted because they were considered to be no
longer of practical value.

In this digital publication all of the maritime law cases are included, whether
reprinted in the Scots Revised Reports or not.

Where a case was the subject of an appeal to the House of Lords, the effect of the
appeal is indicated following the reporter’s summary of the case.




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             Maritime Law Digital – Scotland, Session Cases Third Series List


ABCDEFGHIJKLMNOPQRSTUVWXYZ


A
Advocate, Lord v Clyde Steam Navigation Co (1873) 11 M 440
Anderston Foundry Co v Law (1869) 7 M 836

B
Bell v Gow (1862) 1 M 183
Benn and Co v Porret (1868) 6 M 577
Birkett, Sperling & Co v Engholm & Co (1871) 10 M 170
Birrel v McCulloch and Fyfe (1866) 5 M 94
Broadhead v Yule (1871) 9 M 921
Bruhn v Grunwaldt (1864) 2 M 335
Buchanan v Barr and Shearer (1867) 5 M 973

C
Carlyle v Macalpin’s Trs (1864) 2 M 882
Colvin v Dixon (1867) 5 M 603
Cooper v Barr and Shearer, The Joan Cunllo (1873) 11 M 651

D
Denholm v London and Edinburgh Shipping Co (1865) 3 M 815
Drain & Co v Scott (1864) 3 M 114

E

F
Flensburg Steam Shipping Co v Seligmann (1871) 9 M 1011

G
Gifford & Co v Dishington & Co (1871) 9 M 1045
Gourlay v Watt (1870) 9 M 107
Grant v Grant (1867) 6 M 155

H
Havilland, Routh & Co v James and George Thomson (1864) 3 M 313
Henderson v Simey (1865) 3 M 883
Hertz v Itzig (1865) 3 M 813
Hillstrom v Gibson and Clark (1870) 8 M 463


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              Maritime Law Digital – Scotland, Session Cases Third Series List


I
Inglis and Bow v Smith and Aikman (1867) 5 M 320

J

K
Knight v Freeto (1863) 2 M 386

L
Leitch v Wilson (1868) 7 M 150
Leith, Hull and Hamburg Steam Packet Co v Lord Advocate (1873) 11 M 597

M
Macfarlane v Robb & Co (1870) 9 M 370
McLean and Hope v Munck (1867) 5 M 893
Moes, Moliere and Tromp v Leith and Amsterdam Shipping Co (1867) 5 M 988
Morison and Milne v Bartolomeo and Massa (1867) 5 M 848
Morison and Milne v Massa (1866) 5 M 130

N
New Steam Tug Co v McClew (1869) 7 M 733
North-Western Bank v Bjornstrom (1866) 5 M 24

O
O’Neil v Rankin & Sons (1873) 11 M 538

P
Petersen v McLean and Hope and Hertz (1868) 6 M 218
Pirie & Sons v Warden (1871) 9 M 523

Q

R
Ranking & Co v Tod (1870) 8 M 914
Robertson v Dennistoun (1865) 3 M 829
Roy v Hamilton and Co (1867) 5 M 573




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              Maritime Law Digital – Scotland, Session Cases Third Series List


S
Shankland v Athya & Co (1865) 3 M 810
Stephens v Duncan (1862) 1 M 146
Strickland v Neilson and MacIntosh (1869) 7 M 400

T

U

V

W
Watson v Shankland (1871) 10 M 142
Wolthekker v Northern Agricultural Co (1862) 1 M 211

X

Y
Youle v Cochrane (1868) 6 M 427

Z




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                   Maritime Law Digital – Scotland, Session Cases Third Series



Gifford & Co v Dishington & Co

(1871) 9 M 1045

43 Sc Jur 554, 8 SLR 665

COURT OF SESSION, INNER HOUSE, FIRST DIVISION

1871 – July 19, 1871.

Ship – Charter-Party – Freight

A vessel was chartered to load at a foreign port with a full and complete carg o of barley, in bulk not
exceeding what she could reasonably stow and carry, and, being so loaded, to proceed to a home port
to discharge. The port of loading was known by both of the parties to the charterparty to have a bar -
harbour. The charterer had 1800 quarters of barley for shipment, and the owners of the vessel
informed him that she could carry the whole. After 1175 quarters had been shipped the captain
declined to take more, on the ground that otherwise the vessel might not get safely over the bar. It
appeared that by waiting a few days for a higher tide the vessel could have safely taken much more
of the grain, if not the whole.

– Held that the terms of the charter-party implied that the ship was to take as much grain as she
could with safety carry across the bar at the highest spring-tide, and that not having done so, the
charterer was entitled to recover damages from the owners for breach of contract.

WILLIAM GIFFORD and COMPANY, Pursuers and Respondents – Scott, Trayner.
THOMAS DISHINGTON and COMPANY, Defenders and Appellants – Solicitor-General (Clark), Asher.
Et e contra.

IN the month of October 1869 Messrs Dishington and Company, corn-merchants in Leith,
having 1800 quarters of barley lying at Caen, in Normandy, ready for shipment to this
country, chartered the steam-ship Andalusia from Messrs Gifford and Company, ship-brokers
in Leith. The charter-party provided “that the said ship, being tight, staunch, strong, and every
way fitted for the voyage, shall, with all convenient speed, sail and proceed to Caen, after
discharging her present cargo and loading outwards for Caen, and there load a full and
complete cargo of barley, in bulk not exceeding what she can reasonably stow and carry; and,
being so loaded, shall therewith proceed to Leith. Four working days are to be allowed
merchants for loading and discharging said cargo, to be reckoned from the date of the ship
being ready to load and discharge. Mats, if necessary, to be furnished by merchants, and (the
act of God, the Queen’s enemies, fire, and all and every other dangers and accidents of the
seas, rivers, and navigation of whatever nature and kind soever during the said voyage,
always excepted) deliver the same to the affreighters or to their assigns, on being paid freight
at the rate of £160 (say one hundred and sixty pounds sterling in slump sum, with two guineas
gratuity to captain). The freight to be paid, on unloading and right delivery of the cargo, in
cash. Demurrage over and above the said lying days at £10 per day.”


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                 Maritime Law Digital – Scotland, Session Cases Third Series



The vessel proceeded to Caen, where she arrived on the 8th November 1869; and after
discharging a cargo of coals, she shipped, on the 10th and 11th of November, 1175 quarters of
the barley belonging to Dishing-ton and Company; but the master refused to take more, on the
ground that the vessel was loaded deeply enough for getting safely across the bar at
Oesterham, which is the entrance to Caen harbour. He accordingly, on the 12th of November,
dropped down to Oesterham, where he found only 9 feet of water on the bar, while the vessel
drew 12 feet 8 inches. After waiting four days, and having shifted the cargo in order to alter
the trim of the vessel, the Andalusia crossed the bar on 16th November in 12.34 feet of water,
and proceeded on her voyage to Leith.

With a full cargo the Andalusia would have drawn 13½ feet of water; and from the tide
register kept by the harbour-master at Oesterham, it appeared that the depth of water on the
bar, and the state of wind and weather, from the 8th to the 22d of November inclusive, was as
follows:–

[1046]
November Height of   English
Dates,   Tides.      Feet,     Wind’s
1869.                          Quarters.
         Met.
         Centim.     Inches.
8        4 22        13.89     S.W.        High wind; could enter.
9        3 85        12.68     S.W.        Do.
10       3 53        11.62     N.N.N.      Fair breeze.
11       3 05        10.04     North.      Do.
12       2 85        9.30      Calm.       Foggy.
13       3 15        10.37     South.      Light breeze.
14       3 ‘40       11.19     S. W.       Strong breeze.
15       3 68        12.11     S.W.        Do.
16       3 75        12.34     South.      Do.
17       4 03         13.26    N.N.E.      Fair breeze; could enter.
18       4 05        13.33     S.E.        Light breeze; could enter.
19       4 12        13.56     West.       Do. could enter.
                                           Strong breeze; very high sea;
20       4 30        14.15     N.N.E.      pilots would hesitate on account of
                                           the great swell.
21       4 25        13.99     North.      Fair breeze.
22       4 15        13.66     South.      Strong breeze; could enter.



While the Andalusia was at Caen Messrs Gifford and Company made arrangements for her
carrying a cargo of sugar from Ghent to Greenock, as soon as she had fulfilled her contract
with Messrs Dishington and Company. The vessel arrived at Leith on the 21st of November
1869, when Dishington and Company took delivery of the barley, and paid £80 to account of
freight, but refused to pay the balance, on the ground that the vessel had not taken a full


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cargo, such as she could reasonably stow and carry, in terms of the charter-party. In these
circumstances Gifford and Company raised an action against Dishington and Company in the
Sheriff-court for the balance of the freight and captain’s gratuity; and, on the other hand,
Dishington and Company raised a counter action to recover damages which they alleged they
had sustained through the failure of Gifford and Company to implement their contract; viz –

(1) The freight of a small sailing-vessel, chartered to bring to Leith the remainder of the barley left at Caen,
                                                                                                        £55 16s 5d.
And (2) Loss on the barley (estimated at 3s per quarter) caused by a fall in the market during the delay,
                                                                                                         84 0 0

                                                                                                      £139 16 5

The actions were conjoined, and a proof was taken, in the course of which Peter Stocks, the
master of the Andalusia, deponed –

“On Wednesday, 10th November, we commenced to take in cargo of barley for Dishington and Company.
The loading continued until we took in the amount mentioned in the bill of lading. I then ordered the loading
to be stopped. I did so because I considered that if I took more cargo on board I should not be able to cross the
bar at Oesterham, the entrance to Caen harbour. ... I told Mr Traill one of the partners of Messrs Dishington
and Company, who was superintending the loading of the cargo, that the vessel was deep enough, and that if
more cargo was taken she might strike on the bar. Mr Traill said we must avoid that, and that the ship should
proceed on the voyage.. Mr Train did not ask me to take in any more cargo. He did not intimate to me that he
would not pay the stipulated freight. He said nothing to me about freight. He [1047] did not say that he
would hold my owners liable in damages. ... I asked Mr Traill for some bags to put part of the barley in, to
prevent the cargo shifting during the voyage. Mr Traill got me some bags, and offered to get me some rye-
grass, which, he thought (and I agreed with him), would answer my purpose better than the bags. We took in
the rye-grass after stopping the loading of the barley. It was not of much weight. It was consigned to Messrs
Dishington as well as the barley.”

Mr William Gifford, of the firm of Gifford and Company, deponed –

“In October last I had sundry meetings with Messrs Dishington, with a view to their chartering the Andalusia.
After much discussion, the charter-party was entered into between us. Before it was concluded, Messrs
Dishington had proposed to charter the vessel at so much per ton. I refused this offer, as I knew there was a
bar at Caen, and a difficulty in getting over it when vessel fully laden. I am shown letter from me to Mr
Galway (the ship’s agent), dated 12th October 1869, in which there occurs –

       ‘We have fixed the Andalusia for Caen at the rate of 8s per ton for barley.’

I arrived at that rate by assuming that the Andalusia would carry as a cargo of barley from 340 to 350 tons. I
did not take quarters into account, or consider how many were to be allowed for the ton. At the time we were
negotiating I told Messrs Dishington that the Andalusia could carry 1800 quarters of barley. I may have said
that she could carry 2000 quarters. Messrs Dishington informed me that they had about 1800 quarters lying at
Caen for shipment. Before Mr Traill left Leith it was agreed between him and me that if the ship could not
take a full cargo of barley she was to be filled up with light goods, so as to save detention at the bar. I don’t
remember whether rye-grass was mentioned. … I consider that the Andalusia was bound under this charter to
take as much cargo as she could with safety carry over the bar at the highest tide. I think she might have so



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carried from 250 to 280 tons. Being referred to my letter to Mr Galway of 8th November 1869, when I speak
of ‘getting over the bugbear of the bar in chartering,’ I had in my mind the introducing into the charter a
clause that the ship should not be loaded beyond a certain depth – say 11.12 feet. On 8th November I
telegraphed to Mr Galway ‘to load for the bar.’ I meant that he was not to load so deep as to cause a long
detention. I meant that the captain was to take as much cargo as he could cross with at the highest tide with
safety. I knew that to wait for the highest tide might cause detention for some days.”

Mr Traill, of the firm of Dishington and Company, deponed –

“I entered into negotiations with pursuers to charter the Andalusia. I had several verbal communings with Mr
W. Gifford on the subject. I told him what quantity of barley we had for shipment. ... I asked him what the
Andalusia could carry. He said he thought about 2000 quarters of barley. Ultimately I agreed t o charter the
vessel for a full and complete cargo. I understood that I was entitled to fill up with barley, but, as something
had been said about the bar at Oesterham, I expressed my willingness to load only the 1800 quarters, and to
fill up any vacant space there might be with light goods. I said I did not care so long as I got the barley
carried. I know nothing about the bar, except from hearsay. Mr Gifford seemed to be well acquainted with it. I
knew nothing about the draught of water of the Andalusia. In no part of my conversations with Mr Gifford
was it contemplated that any of the 1800 quarters should be left behind. The slump freight stipulated in the
charter-party was £160. I calculated that that was at the rate of 1s 9d a quarter for the whole quan tity of 1800
quarters, a sum which I was prepared to pay. Taking the cargo at 2000 quarters, the freight was at the [1048]
rate of 8s a ton. Mr Gifford never hinted to me that the vessel could not carry 1800 quarters of barley over the
bar. ... The master wished to trim his cargo, and asked me to let him have some of the barley in bags, which I
had promised to do if necessary. ... I gave him fifty bags, and then the master asked for other fifty bags, which
I also gave him. ... I expressed myself strongly against his refusing to take in more barley in bulk. He gave me
no reason at that time for not taking the bulk. He referred me to Mr Galway, to whom I spoke very strongly. I
said I could now see Mr Gifford’s object in chartering for a slump sum, but that most certainly if he would not
take a full cargo I would not pay a full freight. I said nothing about damages to Mr Galway. I had no intention
at that time to claim them. Mr Galway said it was an unfortunate affair both for us and for the ship, but that he
had no doubt it would be arranged amicably when I returned to Leith. In consequence of this statement I took
no formal protest. After seeing Mr Galway I returned to Captain Stocks and urged him to take in more barley
in bulk, but he declined to do so, saying that after he had taken in a few more bags the vessel would be deep
enough ‘to go’ to sea, or ‘to get’ to sea. I do not remember which of these expressions he used. After this he
took in 150 more bags, taking them by fifty at a time. He also took in fifty bales of rye-grass, which T
purchased on the day they were put on board, the captain saying that he could take them though he could not
take heavier goods. There was room enough in the vessel for more than the 1800 quarters of barley. I did not
want the rye-grass, and would not have purchased it but for the captain’s refusal to take the whole of the
barley.”

The Sheriff-substitute (Hamilton), on 16th January 1871, pronounced an interlocutor
containing, inter alia, the following findings:– “Finds that before the vessel sailed for Caen an
arrangement was made between Mr Gifford, and Mr Trail, one of the, partners of the said
Thomas Dishington and Company, by which the latter (who was himself going to Caen)
agreed not to load the vessel so deep as to risk her detention at the bar, but, after she should
have taken in as much barley as she could safely carry, to fill her up with grass seeds or other
light goods: Finds that the loading of the vessel at Caen took place at sight, and under the
superintendence of Mr Traill, as representing the said Thomas Dishington and Company, and
of Mr Galway, the ship’s agent: Finds that the fifty bales of rye-grass mentioned in the bill of
lading were shipped, by request of Mr Trail, after the master had declared that the barley then


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                 Maritime Law Digital – Scotland, Session Cases Third Series


on board was as much as his vessel could safely carry; and that they were so shipped under
the arrangement with Mr Gifford above referred to: Finds it not proved that Mr Traill objected
that the amount of barley shipped was not a full cargo in terms of the charter-party: Finds, on
the contrary, that so soon as the rye-grass above-mentioned had been taken on board, he
accepted the bill of lading from the captain, and allowed the vessel to leave Caen without
intimation that he would hold the said William Gifford and Company liable in damages for
breach of contract; and finds that no such intimation was made to the said William Gifford
and Company until after the cargo had been delivered, and a payment made to account of the
freight: Finds, in these circumstances, in point of law, that the said Thomas Dishington and
Company are barred from now objecting to the amount of cargo carried under said charter-
party, and consequently that the claim of damages, which is their only defence to the action
for freight, is untenable: Therefore, in the action for freight, decerns in terms of the libel; and
in the action of damages, sustains the defences, assoilzies the defenders, the said William
Gifford and Company, from the conclusions [1049] of the action, and decerns: Finds the said
William Gifford and Company entitled to expenses in both actions,” &c.

To this judgment the Sheriff (Davidson) adhered, and Messrs Dishington and Company
appealed, and argued;– The shipowners’ obligation under the charter-party was to load the
vessel with as much grain as she could safely carry across the bar at the highest tide. It was
proved that if the master had waited until the 20th of November, instead of crossing the bar
upon the 16th, the ship could have safely taken the whole of the barley. Gifford and Company
had failed therefore to implement their contract, and were liable in damages. If they did not
choose to wait for the highest tide, they ought to have employed lighters at their own expense.

Argued for Gifford and Company;– The ship was to take a cargo which she could safely
carry. Both parties were aware of the existence of the bar at the time when they executed the
charter-party, and its terms were framed with special reference to this peculiarity of the port
of loading. The proof shewed that the ship took as much cargo as she safely could. The master
would have shipped more, had he not anticipated danger, an opinion shared by the shippers,
who accepted the bill of lading without objecting to the amount of the cargo, and filled up the
vessel with light goods, to enable her to prosecute her voyage without detention. As it was,
the ship was loaded so deeply that the master had to wait four days at the bar; he was not
bound to wait for the highest spring-tide; to do so might have involved a long detention, and
serious loss to all parties: The voyage commenced when the ship left Caen, and there was no
obligation on the owners to lighten her during the voyage.

At advising, –

LORD PRESIDENT (INGLIS). The appellants, on 12th September 1869, chartered the
vessel Andalusia belonging to the respondents, in terms of a charter-party of that date, by
which it was agreed that the vessel, then about to arrive at Leith, should sail from that port to
Caen, “and there load a full and complete cargo of barley, in bulk not exceeding what she can
reasonably stow and carry; and, being so loaded, shall therewith proceed to Leith,” and the


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                   Maritime Law Digital – Scotland, Session Cases Third Series


cargo was to be delivered to the affreighters or their assigns, “on being paid freight at the rate
of £160 (say one hundred and sixty pounds sterling in slump sum, with two guineas gratuity
to captain).”

The charter-party thus gives no information as to cargo or freight beyond this, that, on the one
hand, the vessel was to proceed to Caen, and there load a full and complete cargo of barley, in
bulk not exceeding what she could reasonably stow and carry, and, on the other hand, the
charterers were to pay a slump freight of £160. But it is by no means incompetent, and it is
very necessary here to attend to the circumstances in which the contract was made, and the
purpose for which the vessel was chartered by the appellants. The appellants had 1800
quarters of barley lying at Caen, ready for shipment to Leith. Their object in chartering a
vessel was to bring that barley home, and that was distinctly stated, and it was understood that
this vessel was fitted to bring home this quantity of barley. I do not say that the contract is to
be read as imposing on the shipowners an absolute obligation to bring it all home, whether the
vessel could do so with safety or not, but the object of the charterers was to have it all brought
home, and it was understood that the vessel was able to bring it. But, on the other hand, it is
plain that there were possible difficulties in the way of transporting this cargo, which were in
view of both parties. Both parties knew that Caen was a bar-harbour, and therefore that the
vessel’s carrying capacity was not what she could carry at sea, but what she could carry over
the bar. It has not even been suggested that the vessel could cross the bar, and then with an
incomplete cargo be filled up outside. But that difficulty, though present to the minds of both
parties, was not thought by the respondents to be very serious, [1050] for on 12th October
1869 they wrote to their correspondent at Bruges,

      “We have fixed Andalusia for Caen at the rate of 8s per ton for barley from Caen to Leith, and will
      load her out with coals on our account.”

Now, if this slump freight was calculated at the rate of 8s the ton, the result is that 2000
quarters of barley, giving five quarters to the ton, would come to £160, and therefore they
must have thought themselves substantially under an obligation to bring home to Leith the
whole of the barley which the appellants had then lying at Caen. In point of fact all that this
vessel brought home was 1100 quarters of barley, leaving 700 still at Caen, and therefore all
that the appellants got from the charter-party, in return for their £160, was the forwarding to
Leith of 1100 quarters of barley instead of 1800. To this they naturally objected, and refused
payment of the full freight. The respondents, however, insisted on fulfilment of the contract,
and payment of full freight, in consequence of which the appellants raised an action of
damages, in which they maintained that the Andalusia and its owners had committed a breach
of contract, and had not carried as full a cargo as the vessel might reasonably have carried.
There is not much doubt as to the obligation of the shipowners. On the one hand, they were
not bound to load the vessel to such an extent that she could not safely pass the bar; but, on
the other hand, as the appellants maintained, and I think justly, they were bound to load her to
such an extent as to carry the greatest quantity of barley consistently with passing the bar
safely at the highest tide; and the question is, have they done so? I do not think they have.
That that was their obligation they cannot well dispute now, for Gifford himself says,


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“I consider that the Andalusia was bound under this charter to take as much cargo as she
could with safety carry over the bar at the highest tide ... I meant that the captain was to take
as much cargo as he could cross with at the highest tide with safety. I knew that to wait for the
highest tide might cause detention for some days.”

The state of the tides appears clearly from the statement of the harbour-master. The vessel
arrived at Caen on 8th November, and passed the bar with thirteen feet odd of water. If she
had loaded in two days, she would have been ready to sail on 11th November, but she could
not do so, for the tide was too low, and detention was plainly inevitable. The question comes
to be, how long was she bound to wait, or was she justified in sailing on the 16th with such a
cargo as enabled her to pass the bar on that day? If she had waited till the 20th she would have
had fourteen feet of water. Whether that would have allowed her to carry out the whole 1800
quarters of barley I do not know, and there is no evidence to show, but she sailed on the 16th,
when there was only twelve feet of water, and it is at all events clear that by waiting till the
20th she could have taken out a fuller cargo. Was she justified, then, in going out on the 16th?
That depends on why she went out on that day. It was in order to save time, but, as Gifford
says,

“I consider that the Andalusia was bound under this charter to take as much cargo as she could with safety
carry over the bar at the highest tide,”

and that means the highest of a series of tides. Now, it is clear that she did not wait until the
highest of the series of tides, and it is no sufficient excuse that such waiting would have led to
four days’ detention, because when a vessel goes to a bar-harbour, and undertakes to load a
full cargo, consistently with safety in passing the bar, the meaning is just what is stated by
Gifford. The vessel must watch her opportunity, and seize the most favourable time for
crossing the bar. Therefore, I think, there was failure by the Andalusia to fulfil the obligation
in the charter-party.

It rather appears, too, that there was in this case a secret motive for the vessel quitting Caen
without waiting till the highest tide; I do not say an improper motive, for it is always proper to
save the time of a vessel, but the respondents had a cargo of sugar waiting for her at Ghent,
and they wanted to fulfil their contract there as speedily as possible. But that did not justify
the master in leaving Caen before the highest tide.

The Sheriff-substitute and the Sheriff put their judgment on a ground I cannot adopt. The
Sheriff-substitute finds that “before the vessel sailed,” &c. (quoted, ante, p 1048). I think that
is a misreading of the communings of the parties. What was meant was that if, after as much
barley as possible was taken on board, [1051] there was still storage room, it might be filled
up with light goods, such as would not add to the difficulty in passing the bar, not that grass
seeds were to be substituted for barley, in order to avoid detention. Therefore, I cannot concur
in holding the appellants barred from asserting their claim.



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Two claims are before us: On the one hand, a claim for the balance of freight; and, on the
other hand, a claim for damages. I am not inclined to sustain the claim for damages to the full
extent. The expense of bringing home the remainder of the barley must be allowed to the
appellants. But then they ask for “market loss and other loss on the said barley, in
consequence of failure to fulfil said contract, at 3s per quarter, £84.” The way in which they
get that result is by showing that the difference in market value at the time of arrival of the
Andalusia, and of the said ship, was 3s per quarter. But then if the Andalusia had brought
home the entire cargo, she would not have arrived so early as she did, because she would not
have left before 20th November. The amount of loss cannot be reduced to a certainty, but I
am disposed to make a slump allowance of £30 for this head of damage, making the total sum
due to the appellants to be £85 16s 5d, the result being to leave a balance due to them of £3
16s 5d, after deducting the balance of freight sued for per contra.

LORD DEAS and LORD ARDMILLAN concurred.

LORD KINLOCH. By the charter-party between the pursuers and the defenders the ship
Andalusia was chartered to the defenders for a voyage to Caen, “and there to load a full and
complete cargo of barley, in bulk not exceeding what she can reasonably stow and carry; and,
being so loaded, shall therewith proceed to Leith.” The freight was to be a lump sum of £160.
The question is, whether the pursuers, the shipowners, took on board a sufficient cargo, or
whether they improperly refused cargo, and are hence liable in damages.

I would decide this question exclusively by the terms of the charter-party, taken in connection
with the admitted circumstances of the case. It is admitted that Caen is a bar-harbour, and that
this was known to both parties when entering into the charter-party. What the vessel could
“reasonably stow and carry” therefore necessarily implied what she could safely carry so as to
get over the bar. This, I think, is unsusceptible of dispute. But I think it can as little be
disputed that, in order to accomplish this object, the vessel was bound to take advantage of the
best time, and highest tide within her power; and to wait for such occurring – at all events, for
a reasonable period. I consider it to be the unquestionable duty of the master of a ship to wait
for the wind or tide necessary for accomplishing his voyage, – at all events, if this does not
imply a period of extraordinary endurance. It is the just application of this principle, that if the
voyage implies the crossing of a bar, with or without a cargo, he shall wait for the tide which
shall enable him successfully to do so. This principle has been frequently enforced. The
owners of vessels have been found liable in damages where, in coming towards a bar-harbour
to load, they have abandoned the voyage without waiting for the time or tide necessary to
enable them to cross the bar. They must be equally liable in damages if they leave the port of
loading with a short shipment, in consequence of their not waiting for the tide which would
enable them to cross the bar with the stipulated cargo.

In the present case I think the Andalusia left the harbour of Caen with less than her proper
cargo, in consequence of her not waiting for the tide which would assuredly have enabled her
to cross the bar with a much larger quantity of barley. She arrived at Caen on 8th November


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                 Maritime Law Digital – Scotland, Session Cases Third Series


1869. She shipped less than 1200 quarters of barley, and left the port on the 12th, which was
the time of neap or lowest tide, when there was not 9½ feet of water on the bar. In
consequence she could not cross the bar when she reached it, and had to remain off the bar till
the 16th, when she crossed safely, there being then 12i feet of water on the bar. But if she had
remained in harbour till the 19th, she would have found upwards of 13i feet of water on the
bar, which, according to the evidence, would have enabled her to cross with 1800 quarters on
board, the quantity which the charterers say she should at the least have brought away. The
same, and [1052] still greater sufficiency of water was to be found on the 20th, 21st, and 22d,
although on the 20th the state of the weather might have prevented her crossing. I think the
master acted improperly by leaving on the 12th, the day of the very lowest tide, with less than
1200 quarters on board. I think it fairly to be presumed that by waiting for the proper tide (of
which there was no difficulty of his informing himself) he could have safely stowed and
carried 1800 quarters of barley. I am of opinion that he should have so waited, and that the
charterers are entitled to claim damages for his not having brought this quantity, which is
proved to have been offered for his acceptance.

It has been contended that the master’s proceedings were sanctioned by Mr Train, one of the
partners of the charterers’ house then at Caen. I cannot hold this proved. Mr Traill distinctly
objected to the vessel leaving without her fall cargo. He did not indeed take a formal protest
before a notary; and, after stating his objections, seems to have made the best he could of the
situation. But I cannot hold that anything happened having the effect of cutting off the claim
of damages for short-shipment.

The practical result is, that the pursuers, Messrs Gifford & Co, are only entitled to claim the
slump freight, under deduction of the damages sustained by the short-shipment; comprised
partly of the expense of sending the balance of the cargo by another vessel, and partly of loss
of market through the delay in its arrival. I consider the amount of damages rightly estimated
by your Lordship.

THE following interlocutor was pronounced:– “Recall the interlocutors of the Sheriff and
Sheriff-substitute, dated respectively the 16th and 23d January 1871: Find that the appellants
chartered the steam-ship Andalusia from the respondents on 12th September 1869, to proceed
to Caen, and there load a full and complete cargo of barley, in bulk not exceeding what she
could reasonably stow and carry, and convey the same to Leith, and there deliver the same to
the appellants on payment of the slump freight of £162 2s: Find that the harbour at Caen is a
bar-harbour: Find that the Andalusia sailed from Caen on her homeward voyage, under the
charter-party, loaded with a cargo of barley not exceeding 1175 quarters: Find that the barley
lying at Caen belonging to the appellants, and which they employed the Andalusia to carry to
Leith, amounted to 1800 quarters: Find that 1175 quarters was not such a full and complete
cargo as the Andalusia could carry over the bar at the highest spring-tide, and sail with, safely
to the port of delivery, but fell far short of being such full and complete cargo: Find in law
that the respondents thus committed a breach of contract, for which the appellants are entitled
to recover damage: Assess the damage at £85 16s 5d: Find that of the total amount of freight


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                Maritime Law Digital – Scotland, Session Cases Third Series


(£162 2s), there was paid to account £80, leaving a balance of freight due to the respondents
of £82 2s: Therefore decern against the respondents for payment of the balance, £3 14s 5d,
due to the appellants after deducting the balance of freight unpaid from the amount of damage
found due as above: Find the appellants entitled to expenses both in this and the inferior
Courts; allow accounts,” &c.

Agents: D.M. & J. Latta SSC; Murdoch, Boyd & Co SSC.




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