McKelvie v Wallace Brothers, Ltd

 
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K. B. D., C. A., H. of L.,
McKelvie
and
Wallace Brothers, Ltd.

Charter-party and bill of lading - Delivery of cargo without production of bill of lading - Detention at port of discharge -Demurrage - Sale of Goods Act, 1893 (56 57 Vict., c. 71), s. 18.

On June 26th, 1915, the defendants, W. Bros., coal merchants in Dublin, entered into a contract for the purchase of a quantity of coal from. R. & Sons, a Glasgow firm. The contract note contained no reference to demurrage; but in a letter of the same date to the vendors, the defendants intimated that they were prepared to pay a reasonable rate of demurrage. It was provided by the contract that the coal was to be supplied c.i.f. to Dublin, steamers to be discharged in twenty-four running hours from arrival. In pursuance of their contract with the defendants, R. & Sonsentered into a charter-party, dated the 6th July, 1915, and executed later with M'K., the plaintiff, for the carriage of the coal by one of his ships to Dublin. The charter-party contained the usual conditions, including a cesser and lien clause, and provided that demurrage at the rate of 15s. per hour should be paid for detention over the specified time of twenty-four running hours. The plaintiff did not execute the original contract, and the defendants were not expressly parties to the contract of affreightment with the shipowner. The vessel arrived in Dublin on the 11th of July, and the discharge of the cargo was completed on the afternoon of July 14th, thirty-six hours after the expiration of the time stipulated for discharging. A bill of lading, incorporating the provisions of the charter-party, was prepared on July 12th, signed by the plaintiff on the 13th, and posted by the shippers on the 14th to the defendants, who duly received it on July 15th, when the vessel had completely discharged her cargo, and had left the port of Dublin. In these circumstances the plaintiff sued the defendants for demurrage:Held, by the King's Bench Division (Sir James H. Campbell, C.J., and Madden and Dodd, JJ.), reversing the decision of Gibson, J., that the cargo was delivered by the ship and accepted by the defendants under the bill of lading, and upon the terms that they should pay demurrage to the shipowner at the rate agreed upon between him and the consignors. Held,by the Court of Appeal (reversing the King's Bench Division and restoring the judgment of Gibson, J.), that as soon as the coal had been put on board the vessel at Glasgow there was an...

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