he will when required provide a survey report declaring her to be so. In and during the voyage the master shall take all proper means to keep the vessel tight,

Where the charterer of a specified ship was entitled under the charter-party to ship wet sugar and provided a reasonable cargo of that commodity, but the ship in consequence of its pumps not being able to meet the requirements of such cargo was not reasonably fit to carry it, and the defect could only have been remedied after such a lapse of time as would have frustrated the object of the venture,-Held, that the charterer was entitled to refuse to ship the cargo, and to recover damages for the unfitness of the ship.

These were cross actions by the charterer (Richardson) and owner (Stanton) of a ship; they were, substantially, the one for not providing a fit and proper ship, the other for not loading or reloading a fit and proper cargo; and they were tried together.

The nature of the facts, which were most voluminous, was in brief and in substance as follows

The charterparty was on the "Isle of Wight" A 1 in American Lloyds, and (as far as it is at all material) provided for her going to Manila for orders and loading there or at Yloilo or Zebu, "the following cargo of lawful merchandise to be put within reach of the vessel's tackles by the freighters or their agents. A full and complete cargo of sugar in bags, hemp in compressed bales,

and

or

measure

ment goods always sufficient dead weight to ballast the vessel, and not exceeding, &c."; the freighters to pay "4l. 2s. 6d. for dry sugar, 41. 58. Od. for wet sugar, 41. 158. Od. for hemp and measurement goods" if loaded at Manila, 2/ each all round if at Yloilo or Zebu; the ton of sugar and hemp to be taken at 20 cwt. English nett weight delivered; port, &c. dues to be paid by shippers and freight to be in part paid in cash at port of loading; the master engaging "that the vessel before and when receiving cargo shall be a good risk for insurance, and

found and in every way fitted and provided for the voyage"; there was also a provision as to the ship being ready to receive cargo within days from the date of the charterparty, or the freighters to have the option of annulling it.

The ship arrived at Yloilo and a cargo of wet sugar was offered, which was nearly all shipped, when it was found that the pumps were unable to cope with the drainage to which this kind of cargo was liable, and that the ship was in danger. The cargo was thereupon unshipped and the charterers refused to reload and sent it on by another ship The Milton.

The following questions were left to the jury by the learned judge, Brett, J., and they answered them as follow

1. Did the charterers in the first place offer a full cargo?—Yes.

2. Did the charterers refuse to allow the cargo to be reshipped or any cargo after the first was discharged to be shipped and carried in the Isle of Wight ?-Yes.

3. Was the cargo shipped on board The Milton by mutual consent?—Yes.

4. Was the sugar which was offered to the captain a reasonable cargo to be offered?-Yes.

5. If not, was the defect such and so apparent, that a captain of ordinary care and skill if he meant to object to it ought to have rejected it ?—No.

6. Was the ship fit to carry the cargo which was offered to her ?-No.

7. Was the ship reasonably fit to carry a reasonable cargo of Yloilo wet sugar?— No.

8. Did the captain use reasonable skill and care in the treatment of the cargo delivered to him?-No.

9. Was the damage suffered by the sugar the result of its own defective condition without any defect in the ship or any fault of the captain ?-No.

10. Was the damage to the sugar caused by the unfitness of the ship to

carry the cargo offered to her; or by the ship being unreasonably unfit to carry a reasonable cargo of Yloilo wet sugar; or by want of reasonable care or skill of the captain in treating the cargo delivered

to him?-Yes.

11. If the ship was defective, was the captain willing and able to make her fit within a reasonable time?-Willing but not able.

12. Was he willing and able to make her fit within such a time as would not have frustrated the object of the adventure?-Willing but not able.

13. Would the ship without new pumps and having the sugar which was offered to her on board have been seaworthy ?No.

14. Would the ship without new pumps and with a reasonable cargo of Yloilo sugar on board have been seaworthy ? No.

A verdict was thereupon entered for the charterer in both actions, with leave to the shipowner to move to set them aside and a rule having been obtained calling on the charterer to shew cause why the verdicts should not be set aside and entered for the shipowner pursuant to leave reserved, on the grounds that the charterer had no right to throw up the charterparty and refuse to load a cargo; and that upon the findings the shipowner was entitled to have the verdicts entered for him; or why there should not be a new trial on the ground of misdirection of the judge in directing a verdict to be entered for the charterer on the findings, and in telling the jury there was a warranty on the part of the shipowner that the ship was fit to carry a reasonable cargo of Yloilo wet sugar and an obligation on his part and the master of the ship to have the ship in a state fit for such a cargo, and that the master should possess the necessary knowledge enabling him to deal with and manage such a cargo, and that the shipowner was bound within a reasonable time to make the ship fit to take such a cargo, and to do so within such a time as would not frustrate the objects of the adventure; or on the ground of the verdicts being against evidence, first, on the 6th, 7th and 14th questions; second, on the 8th,

9th and 10th; third, on the 11th and 12th; and why the question of the measure of damages should not be reserved for the further consideration and finding of the Court.

Sir J. Karslake, Butt and Matthew shewed cause.-The cases of Tarrabochia v. Hickie (1), Behn v. Burness (2), and M'Andrew v. Chapple (3) establish that if the defect in the ship or the breach of contract by the shipowner has the effect of frustrating the whole object of the adventure, the charterer has an answer to an action for not loading. It is said by the other side that the charterer hired a specific ship, and therefore engaged to send a cargo which she could carry; there is however no authority for such a contention. What is laid down in 1 Parsons on Shipping, 285, and 1 Bell's Commentaries, 419, citing 2 Pothier on Charterparty, shews that in the present case the shipowner having undertaken to carry wet sugar, warranted that the ship's pumps should be in a fit condition for such a cargo, though it is quite sufficient here to rely on the finding of the jury that the ship was not reasonably fit to carry the cargo, and that that frustrated the voyage. The vessel was not in a good condition to receive the cargo when it was put on board her, and seaworthiness of the ship is a condition precedentThompson v. Gilespie (4). Further, it is made a condition by the charter-party in the present case, because the freight is made payable in advance, and it is stipulated that she is a good ship for insurance, so that the charter-party answers the contention on the other side; and even assuming that under an ordinary charterparty the condition, so contended for on the other side, is implied, yet the ship must be reasonably fit for, and with reference to the cargo she has undertaken to carry. The other side is misled by taking, as analogous, the contract for a specific article; the true analogy is to the case of a contract for goods of a certain

(1) 1 Hurl. & N. 183; s. c. 26 Law J. Rep. (N.S.) Exch. 26.

(2) 3 B. & S. 751; s. c. 22 Law J. Rep. (N.s.) Q.B. 204.

(3) 35 Law J. Rep. (N.s.) C.P. 281.

(4) 5 E. & B. 209; s. c. 24 Law J. Rep. (x.s.) Q.B. 340.

kind, and to answer a certain purpose. The class of cases containing Brown v. Edgington (5) and Shepherd v. Pybus (6), and ending with Jones v. Just (7), shews that, if the goods do not answer the description, the purchaser is not bound to accept. The undertaking here is that the ship shall be so sound that she will carry the cargo safely, excepting certain spccified perils, as is stated in Readhead v. The Midland Railway Company (8) by Lush, J., in the Queen's Bench, and allowed by the Court of Exchequer Chamber. Though there may be no express decision to this effect it is assumed in all the cases. In Burges v. Wickham (9) it was held that the undertaking as to seaworthiness is relative, and that the shipowner must see the ship is fit under the particular circumstances, and Knill v. Hooper (10) is to the same effect. In Readhead v. The Midland Railway Company (8) Blackburn, J., after citing the statement of Parke, B., in Gibson v. Small (11) that the shipper of goods has a right to a seaworthy ship, says that it appears that that learned Judge thought the undertaking, as to seaworthiness, of a shipowner to a shipper of goods was co-extensive with that of the latter to his insurer; and in Tourse v. Henderson (12) it is assumed that if the cargo on board would injure that about to be loaded the owner was not bound to put it on board.

[BRETT, J., referred to the judgment of Lord Ellenborough in Lyon v. Mells (13).]

There is also a strong passage in Abbott on Shipping. It is then said that still the charterer could not reject the ship, and ought to have waited, and so that the whole object of the voyage would not be frustrated. So that the charterer is to

(5) 2 Man. & Gr. 279; s. c. 10 Law J. Rep. (N.S.) C.P. 66.

(6) 4 Sc. N.R. 444; s. c. 11 Law J. Rep. (N.s.) C.P. 101.

(7) 37 Law J. Rep. (N s.) Q.B. 89.

(8) 36 Law J. Rep. (N.s.) Q.B. 181; s. c. 38 Law J. Rep. (N.S.) Q.B. 169.

(9) 3 B. & S. 669; s. c. 33 Law J. Rep. (N.S.) Q.B. 17.

(10) Hurl. & N. 277; s. c. 26 Law J. Rep. (N.S.) Exch. 377.

(11) 4 H.L. Cas. 404.

be presented with a ship which would destroy the cargo, and yet must put the cargo on board, which is contrary to Freeman v. Taylor (14).

[BRETT, J., referred to Clipsham v. Vertue (15).]

And as respects the form in which the question between the parties presents itself to the Court, the captain discharged the cargo, but said the charterer could not cancel the charter-party, and an arrangement was made between the parties to send home by another ship, leaving the question to be decided in England whether the ship or sugar was in default.

H. James and Watkin Williams in support of the rule.-The ship was a good one, and the other side knew all about her, and they put on board a cargo of wet sugar, which no doubt they were entitled to do, and which was a reasonable one of that country's produce, but when it was on board it was found that the ship and cargo did not suit-that is a fair statement of the case. A ship may be quite seaworthy but not fit for the cargo, the two things are not the same, and the question is whether the ship was reasonably fit at the time the cargo was offered. Suppose a charterer says the ship is not fit at that time, is he entitled to throw up the charter-party? What then is a condition precedent? The result of Behn v. Burness (2), Tarrabochia v. Hickie (1), and the other cases is that if the parties choose to stipulate for this to be a condition it is one, but that, if they do not, there may be an implied one where the breach goes to the root and frustrates the object of the contract entirely.

[BOVILL, CJ., referred to Stavers v. Curling (16).]

No doubt by Dimech v. Corlett (17) a representation of the ship's locality even may be such as to amount to a condition, and it is admitted that if it can be foreseen that the ship will not be fit within a time which will allow of any benefit ac

(14) 8 Bing. 124; s. c. 1 Law J. Rep. (N.s.) C.P. 26.

(15) 5 Q.B. Rep. 265; s. c. 13 Law J. Rep. (N.S.) Q.B. 2.

(16) 3 Bing. N.C. 355; 6 Law J. Rep. (x.s.) C.P. 41.

(17) 12 Moore, P.C. 199,

cruing, a doctrine for the first time enunciated in Tarrabochia v. Hickie (1), then the charterer may throw up the charter-party, but that she cannot be made fit within a reasonable time does not necessarily gauge the matter and exhaust the case. Here there was not a specific cargo, an inability to carry which would frustrate the venture, but an open cargo is put on board, and it is found it I will not do and it is unloaded and the charterer's duty was to tell the shipowner to put the ship in a proper state. Further, here the ship was seaworthy at first, and was made unfit by the and cargo, the judgment in Blasco v. Fletcher (18) shews that having loaded it, it is too late now for the charterer to say he will not allow the cargo to be carried, and in the cross action it is a good answer to say that the goods must be suitable to the ship. First, admitting the ship was insufficient for the particular cargo, which was a reasonable one of the kind, there was no obligation to make the ship so fit. The ship was known and was taken to carry what she could carry and was seaworthy for all but one of the permissible cargoes, and this cargo, though reasonable wet sugar was not adapted to the ship, which was not specially adapted to it, and the shipowner was not bound to alter the ship, which would carry the other cargoes and even sugar, if not so wet as that offered. And the finding of negligence was found on the assumption that the shipowner was bound to accept this sugar and ought to know how to deal with it. Suppose under a charter-party for lawful merchandise heavy guns or other onerous cargo were offered, the ship need not be fit for their reception specially. Secondly, the charterers were not entitled to rescind even if the shipowner was bound to have and had not a ship fit for the cargo, for seaworthiness was not a condition precedent to receiving the cargo, and it was only necessary to be ready and willing to receive it, and the only cause of action was for not being ready or willing to receive or unseaworthiness. The shipowner was entitled to an opportunity for putting the ship in a proper condition within a reasonable

(18) 14 Com. B. Rep. N.S. 147; s. c. 32 Law J. Rep. (N.s.) C.P. 284.

time, and here no such opportunity was given, and, as the charterer refused to put the cargo on board again, it was no good to attempt to provide a remedy, so that the time which elapsed before this was done in fact is no gauge, as the shipowner would not strive to do what was useless.

BOVILL, C.J.-In these cross actions verdicts were found in favour of Richardson, the charterer, and a rule was obtained to set them aside and enter them for Stanton, the shipowner, on points reserved, or for a new trial, on the grounds of misdirection (which substantially raised the same points), and of the verdicts being against evidence. As respects the question of whether the verdicts were against the evidence, I think that on the evidence the jury were justified in finding as they. did, and my brother Brett is not dissatisfied, and therefore we ought not to disturb the verdicts on this ground. As to the question of the verdicts being entered for the shipowner on the points reserved or there being a new trial on the ground of misdirection, this question turns on the respective duties of the shipowner and the charterer. The ship was good and sound for ordinary purposes, and the cargo a proper cargo for a suitable ship. The charter-party is not quite in the ordinary form, as regards the fitness of the ship, the words ordinarily found in the beginning of a charter-party being omitted. It provides for "a full and complete cargo of sugar in bags, hemp in comand pressed bales, measurement goods,"

or

and so far nothing is said as to the nature of the sugar, but in the freight clause it is provided that the freighters are to pay "41. 28. for dry sugar, 41. 58. for wet sugar; and it is further provided "that the vessel, before and when receiving cargo, shall be a good risk for insurance,' and if required "a survey report declaring her to be so be obtained," and also that "in and during the voyage the master shall take all proper means to keep the vessel tight, staunch and strong, well manned and found, and in every way fitted and provided for the voyage.' Under this charter-party the charterer was at liberty to offer for shipment at

Yloilo wet sugar, a commodity well known there, and subject to drainage. Under such a charter-party no doubt the cargo offered for shipment is to be a reasonable one, but I am not aware of any authority shewing that it is necessary for it to be suitable to the particular ship in the state in which she is at the time of shipment. As to the illustrations given in argument of heavy guns and like matters being offered for shipment, when the provision in the charter-party is only for lawful merchandise, the answer is that the jury would most likely find that they did not constitute a reasonable cargo. Suppose the contract was one to carry horses and cattle, and the ship turned out to be suitable only for small. cattle, it could not be said that the ship offered was suitable and that small cattle should be shipped, for the ship would be bound to be suitable to receive cattle

The

generally. The verdicts in these cases not being contrary to the evidence, the findings are to be taken to be true, and it is necessary to see what they are. jury find "that the sugar which was offered was a reasonable cargo to be offered, that the ship was not reasonably fit to carry a reasonable cargo of Yloilo sugar, that the captain, though willing, was not able to make her fit within a reasonable time, and though willing not able to make her fit within such a time as would not have frustrated the object of the adventure." What is the effect of What is the effect of these findings, and what is the law applicable to them? The unfitness of the ship and the inability of the captain arose from the nature of the wet sugar, and the insufficiency of the pumps to deal with it. If the cargo had been reloaded, the pumps being still unequal to deal with it, the vessel would have been in danger, and the cargo would have been destroyed, that is, it would have melted away and changed its character. The jury find that the ship was not fit for the reception of a reasonable cargo of wet sugar, and could not have been made so without a frustration of the object of the adventure. The duty of the shipowner who has engaged to carry particular goods, is that the ship must be fit to carry what the charterer undertakes to put on board.

And I may observe that in the present case there are also provisions as to what is to be done during the voyage. The jury find that the ship was unfit to receive the cargo, and this being so, was there any obligation to load it, or the cargo having been unshipped, and the ship remaining equally unfit, was there any obligation to reload it? The proposition seems to me to answer itself. The charterer was not bound to load or reload the cargo unless the ship was ready to receive it. It has been said during the argument that the obligations of the shipowner have not been clearly laid down; this may be because the matter is too clear, but, however this may be, there still is authority as to the duty of the shipowner as respects what cargo he is bound to receive. In Lyon v. Mells (13) Lord Ellenborough said-" In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman implied by law, that his vessel is tight and fit for the purpose and employment for which he offers and holds it forth to the public; it is the very foundation and immediate substratum of the contract that it is so." It is true that his observations there are applied to the case of the public employment as a carrier, but still they are applicable, and in a later case, Havelock v. Geddes (19), where a similar question arose on a charter party, Lord Ellenborough said-" Had the plaintiff's neglect here precluded the defendants from making any use of the vessel, it would have gone to the whole consideration, and might have been insisted upon as an entire bar; because the consideration for the defendant's covenant to pay the freight would then have failed in toto." In the present cases the jury found that what occurred frustrated the whole object of the adventure, and these cases, therefore, are within the rule laid down by Lord Ellenborough. It has been said in argument that the doctrine as to frustration of the object of the adventure is new and (19) 10 East 555.