1812. SJOERDS against LUSCOMBE. THE plaintiff declared upon a charter-party of affreight dis sail Saturday, Where the master of a ship covenanted in a charter-party to go to a certain port of America and receive a loading from the freighter, alongside the home the same; a tion of the restraints of ship, and bring ment made in London on the 9th of November 1807, between himself, as master of the ship Gute Sache, and the defendant, a merchant of London; whereby the plaintiff covenanted that the Gute Sache should be properly furnished as a Kniphausen (neutral) ship, and should forthwith sail from Dover to Wilmington in North Carolina, and there give notice to the freighter's agents, and receive and take on board the said ship from them complete cargo of pine-timber, &c.; and, being patched, should (wind and weather permitting) therewith to Plymouth dock-yard, and there make true delivery to the defendant of the cargo agreeably to bills of lading, (the act of God, the king's enemies, restraints of princes and rulers, and all dangers and accidents of the seas, rivers, and navigation, of what nature or kind soever, excepted.) That the ship should tarry at her loading and unloading ports 50 running days in the whole, if required, to commence on her arrival at Wilmington, and after notice by the plaintiff to the defendant's agents there that she was ready to load, to cease on her being laden there, and re-commence on her arrival at Plymouth; and having given notice that he was ready to deliver the said cargo, such cargo to be sent alongside, and taken from alongside, at the sole expense of the with an excep rulers, &c.: but the freighter covenanted ab solutely to provide the loading without any such exception; it seems that an embargo in the American port, which prevented the freighter from loading the ship did not discharge him from his cove nant: but the plea alleging dantdidprovide cargo,and was ready and wil that the defen a ling,and offered to send it alongside the the plaintiff refused to receive it there, and discharged the defendant from sending it alongside, on which issue was taken by the replication, was held not to be sustained by evidence of the master's written acknowledgment of the defendant having offered to load the cargo on board, on his (the master's) being ready to take it, for the purpose of raising the question of law on the embargo. defendant, 1812. SJOERDS against LUSCOMBE. defendant," the plaintiff giving the customary assistance with his boats and crew. In consideration of which the defendant covenanted at his own costs to procure a licence or order in council for the ship for that voyage, and that he would not only provide loading for the ship at Wilmington with a full cargo of pine-timber, &c. and receive the same from alongside of her at Plymouth within the limited days; but also would, upon a right and true delivery of the cargo agreeably to the bills of lading, pay the plaintiff freight after a certain rate, &c. The plaintiff also covenanted that it should be lawful for the freighter to keep the ship on demurrage at her port of loading and unloading for 30 running days beyond the time before limited, paying the plaintiff 5 guineas a-day. The declaration then stated that the ship, being properly fitted and documented, sailed from Dover on the voyage, and arrived at Wilmington on the 15th of June 1808, and immediately gave notice of it to the defendant's agents there, and that he was ready to take on board her cargo; that the ship remained at W. for that purpose not only for the 50 days and 30 days, &c. allowed, but for 150 days longer, being so long detained there by the defendant's agents and though the plaintiff was during all those times ready and willing to receive and take on board from the defendant and his agents the cargo in the charter-party mentioned, if sent alongside the ship, &c. and to proceed therewith to Plymouth, &c.: yet the defendant did not provide loading for the ship at Wilmington with a full cargo, &c. and send alongside the ship at W. or elsewhere any cargo of pine-timber, &c. within the days limited, &c. but made default, &c.; to the plaintiff's damage of 30007., &c. There were also other breaches assigned. The defendant pleaded several pleas, : traversing traversing the different breaches assigned; but the only plea material to the question before the Court was the 8th; in which he stated that he did provide loading for the ship at Wilmington with a complete cargo of pine timber, &c. within the days in the charter-party limited for so doing, and was then and there within those days ready and willing and offered to the plaintiff to send the same alongside the ship at W. within the days so limited, but the plaintiff then and there refused to receive the same from the defendant alongside the ship, and wholly discharged the defendant from sending the same alongside of the ship at W. within the days in the charter-party limited. To this the plaintiff replied that the defendant did not provide loading for the ship at W. with a complete cargo, &c. within the days in the charter-party limited for so doing, and offer to the plaintiff to send the same alongside the ship at W. in manner and form as in the 8th plea alleged. At the trial before Lord Ellenborough, C. J. at Guildhall, it appeared that this ship, thus chartered by the defendant, sailed in December 1807 in ballast upon the voyage in question, under the plaintiff as master, and after some delay at Cowes, in consequence of damage received at sea in April 1808, pursued her voyage to America under Kniphausen colours, and arrived at Wilmington on the 15th of June, and was ready to receive her cargo by the 24th of the same month, of which notice was given to Giles and Burgwin, the agents of the defendant, one of whom came on board to see how she could best be loaded. But at that time there was an embargo on all shipping in the American ports, which he first said he hoped would be taken off in September, afterwards in December: in fact however it continued till about April 1809, and the ship remained there 1812. SJOERDS against LUSCOMBE. for 1812. SJOERDS against LUSCOMBE. for the time mentioned in the declaration, and came away about the end of January 1809, after the following papers were signed by the plaintiff, which were proved at the trial by the defendant, who rested his defence upon them. The first of these was a paper dated "Port of Wilmington, North Carolina. I do hereby admit and acknowledge that Giles and Burgwin, agents for M. Luscombe, immediately on my being ready to take in cargo on board the Gute Sache on their account, duly offered the same in manner and place as agreed upon and subscribed by charter-party. And I further acknowledge that the said agents on behalf of M. Luscombe have at all times since continued to offer and were ready to deliver the cargo as aforesaid agreed and prescribed for shipment on board the said Gute Sache. The sole reason why the same has hitherto not been taken on board has been the refusal of permit at the custom-house to load the said Gute Sache, and which refusal is still continued to be made, predicated, as I understand, on the embargo law of the United States. Witness my hand and seal, this 4th of August 1808." (Signed and sealed by the plaintiff, and witnessed.) The other writing was: "I A. Sjoerds, master of the Gute Sache, hereby confirm the declarations made by me and under my hand and seal on the other side, under date of the 4th of August last; and further acknowledge that all the circumstances therein by me declared and admitted have ever since and do still continue to this day, as witness my hand and seal this 27th of January 1809." (Signed and sealed by the plaintiff, and witnessed.) After a verdict for the plaintiff on the 8th, and other pleas, a new trial was moved for, on the ground of the verdict being against the evidence, and disregarding the acknowledg ment ment made by the plaintiff in the papers which he had signed; the genuineness of which had been doubted at the trial, but without any foundation. But The Solicitor General and Marryat, on shewing cause, argued on the legal effect of that acknowledgment, that as the charterer does not exempt himself from liability on account of the restraints of governments, as the ship-owner does, he continued liable upon his covenant, notwithstanding the failure of loading a cargo was caused by the American embargo. Blight v. Page (a) was referred to. That notwithstanding the terms of the papers it was clear that no cargo had in fact been sent alongside the ship; nor could it have been, as it would have been seized as soon as it was put into the craft to go alongside although it might be admitted that the defendant was ready to have shipped it if a permit could have been obtained. Park, in support of the rule, contended that the plaintiff, the master of the ship, was competent to vacate the bargain, and to discharge the defendant; and that the plaintiff had so done. The paper states that the cargo was offered by the defendant in manner and place as agreed upon by the charter-party: but finding that the loading could not possibly take place, both parties agreed to abandon the charter-party: that is the fair import of the terms. Lord ELLENBOROUGH, C. J. Giving that acknowledgment its full effect, I cannot, according to the doc (a) 3 Bos. & Pull. 295, in note. 1812. SJOERDS against LUSCOMBE. |