1834.

IRVING

V.

CLEGG.

dining-room included to be filled with light goods, which the Defendants bound themselves to ship, not exceeding what the vessel could reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded, should therewith proceed to Deal for orders, whether to discharge at London, Rotterdam, or Antwerp, or so near thereunto as she might safely get, and deliver the same on being paid freight for the outward cargo 300l., and for the homeward cargo at and after the rate of 47. 15s. per ton of 20 cwt. for sugar, coffee, and rice, and for pepper at 18 cwt. to the ton, nett weight at the king's beam, the tare of the sugar not to exceed 6 per cent.; and for all other goods, except those already mentioned, in just and fair proportion according to the East India Company's scale of tonnage; restraints of princes and rulers during the voyage always excepted. It was further agreed, that 100 tons of rice or sugar should be shipped previous to any other part of the loading, to ballast the vessel, and keep her in proper trim for the voyage; and that the Defendants should have permission to send a supercargo.

Breach, that Defendants did not, nor would, load or ship on board the said vessel a full and complete cargo of merchandise, according to the tenor and effect of the said charterparty and their said promise and undertaking, either at the said port called Sourabaya, or at any other port or ports in Sumatra or Java; but wholly refused and neglected so to do; and, on the contrary thereof, the Defendants loaded and shipped on board the said vessel a small and insufficient cargo, being less than a full and complete cargo by divers, to wit, 100 tons, and wholly neglected and refused to make up the deficiency in the said cargo, or to ship any more merchandise on board the said vessel, either at the said port called Sourabaya, or at any other port or ports in Sumatra or Java: by means whereof the Plaintiff_lost

and was deprived of a large sum of money, to wit, the sum of 500l., for freight, which might, and otherwise would, have accrued to the Plaintiff, if the Defendants had loaded on board the said ship such a cargo as they ought to have loaded according to the terms of the said charterparty.

Upon this charterparty it was contended at the trial, that the Defendants should have shipped a full cargo, so assorted and so complete as to render it unnecessary for the Plaintiff to ship any ballast. It was proved, however, that, though the ship was fully loaded, the Defendants had stowed such a proportion of pepper as to render it necessary for the master to ship thirty-six tons of stone ballast for the safety of the vessel, in addition to the 100 tons of rice.

A verdict having been obtained by the Plaintiff for 130%. 4s. 8d. on a count for demurrage,

Wilde Serjt., pursuant to leave given at the trial, moved to increase the damages by the sum of 380%. freight for the thirty-six tons thus devoted to ballast, as he contended, by the default of the Defendants. He referred to Wallace v. Small (a), where, under a covenant to ship a full and complete cargo in the usual and customary manner, the defendant loaded a full cargo, but with such a proportion of heavy goods that the ship was improperly burthened beyond her tonnage ; and Lord Tenterden C. J. having left it to the jury to say whether such a mode of loading was permissible, the jury gave damages for the excess.

A rule nisi having been granted,

Under

Spankie and Coleridge Serjts. shewed cause. the terms of this charterparty, the Defendants had a right to load goods of whatever description they pleased,

(a) 1 M. & M. 446. (not reported as to this point).

1834.

IRVING

CLEGG.

1834.

IRVING

บ.

CLEGG.

provided they shipped 100 tons of rice or sugar previous to any other part of the lading. If it were not intended that the Defendants should have this option, it had been unnecessary to enumerate the rate of freight for the coffee, rice, pepper, and other goods: it had been sufficient to require that the Plaintiff should have so much freight for the entire ship. In Wallace v. Small, the ship was to be loaded in the manner usual and customary at the port of Calcutta. So in Benson v. Schnieder (a), the ship was to have a full cargo of cotton pressed according to the practice. Here, no usage of loading has been referred to, either in the charterparty or on evidence. Hunter v. Fry (b) only decided that where a ship is to have a full cargo, the question o fulness is not to be determined by a loose recital in the charterparty, which describes her to be of a certain number of tons, or thereabouts. But in Moorsom v. Page (c), where, by a charterparty, the freighter covenanted to provide for the ship a full and complete cargo, consisting of copper, tallow, and hides, or other goods, on which separate rates of freight were to be paid, it was held, that, having supplied her with as large a quantity of tallow and hides as she chose to take on board, he was not bound to provide any copper, although, for the want of it, the ship was obliged to keep in her ballast, and did not make so advantageous a freight as she otherwise would have done.

To the same effect is Abbott on Shipping, 287. Roccus de navibus et naulo, (notes,) p. 72. to 75.

Wilde and Talfourd Serjts. in support of the rule. It may be collected from this charterparty, that the intention of the parties was that the ship should be made available to the extent of her burthen, to earn freight. And this especially appears from the stipulation that the

Defendants should first put in 100 tons of rice or sugar to supersede the necessity of ballast, and that the forecabin should be filled with light goods. The stipulation as to the early shipping of rice or sugar would have been unnecessary, if the owner was to renounce any portion of freight for the stowage of ballast. In Moorsom v. Page there was no such stipulation that the freighter should supply the place of ballast by goods of a certain description.

Cur. adv. vult.

TINDAL C.J. The question whether the Eliza has been loaded with a full and complete cargo upon her homeward voyage, appears to us to depend upon the construction which is to be put upon the terms of the charterparty itself; for as to any customary mode of loading upon the voyage described in the charterparty, none such is either referred to by the charter, nor is any such found by the jury.

Now, looking to the terms of the charterparty alone, it appears to us, that if it had not been for the insertion of the stipulation at the end, this case would have been governed by the decision in Moorsom v. Page (a); and that it would have been clear that, under the agreement by the freighter to furnish a full and complete cargo of merchandise, with the subsequent enumeration of the rate of freight for sugar, coffee, rice, pepper," and all other goods," the freighter would be at liberty to load the ship with whatever goods and in whatever proportion he thought proper; and that the loss of freight, if any loss arose from the necessity of putting ballast into the ship, would be a loss that must fall on the owner.

But the question arises upon the stipulation at the end of the charterparty, by which the merchant undertakes to ship 100 tons of rice or sugar previous to any

(a) 4 Campb. 103.

1834.

IRVING

V.

CLEGG.

1834.

IRVING

บ.

CLEGG.

other part of the lading; "to ballast the vessel, and keep her in proper trim for the voyage." And the question is, whether, under this stipulation, the freighter is bound to make up a full cargo of other articles in such proportions that freight shall be payable for the whole tonnage of the ship; or whether he may load a full cargo of the lightest commodities, and if any ballast is then wanting, it must be put in by the master, and occasion, pro tanto, a loss of freight. And we think the latter is the true construction of the agreement. In the first place, it is consistent with the very terms employed by the parties; and it is some violence to those terms, to hold them to extend to 136 tons, or to any other quantity that might be found necessary to ballast the ship. If the parties had intended so uncertain a quantity, we think they might have expressed themselves to that effect. In the next place, it is the duty of the owner to find proper ballast for the ship, in order to make her trim for her voyage; the agreement in question, therefore, is an agreement made for the benefit of the owner, as it relieves him from so much of the obligation as is usually thrown upon him, and ensures him a freight for what would otherwise be unproductive. But it leaves the owner still liable to that obligation, except so far as the special agreement will extend, which here, by the very terms of it, is to 100 tons only.

We therefore think, that for any ballast that was necessary beyond this, the owner is bound to supply it; and that the freighter has not stipulated in any way that he will pay freight for the tonnage of such additional ballast; or, in other words, that he was at liberty to select a full and complete cargo out of such articles as he pleased, after first putting the 100 tons of rice for ballast.

Rule for increasing the damages discharged.