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1815.

HARMAN

v.

GANDOLPH

The decision in Leer v. Yates seems to stand upon legal, and, properly understood, upon equitable principles. The hardand Others. ship is incidental, and one of those rigours to which law, from the necessary generality of its provisions, is by its nature subject. The consignee, it is said, is ready to receive the goods in the proper time; he applies for them, and by the neglect of others, for whose conduct he did not stipulate, he cannot obtain them. The running days expire, and he is

called upon
to pay a heavy
charge for demurrage. It is
added, that this delay, so com-
mon, and indeed almost neces-
sary in the port of London,
must have been in contempla-
tion of the ship-owner, and,
therefore, that the sufferance
of it is an implied condition
of his contract; that this in-
convenience, and of course
the implied condition, applies
still more forcibly to a ge-
neral ship; it is a misfortune
pressing equally on both par-
ties, the freighters and the
owner. There is no ground
for the presumption of a de-
fault in the consignee. Why
should he be made responsible
where he has no controul?
Still less, why should he be
made responsible for the de-
fault of all other consignees in

the general lading? If an injury, why should not the owner partition it amongst the several parties according to their respective interests? Why, indeed, is the owner entitled to any compensation? Each party performs his duty in the contract. The consignee claims within the proper time, and the owner delivers the goods as soon as he is able. In order to entitle himself to compensa. tion for demurrage, he must claim under an express or implied condition, or by some positive default on the part of the consignees. With respect to default, none is pretended; and with regard to the contract, it is nudum pactum. The words which are supposed to create the obligation are the words of the captain, the servant of the owner, who signs the bill of lading, and delivers it to the shipper. The defendant does not sign it; but it is said, that by accepting this bill of lading, and claiming the goods under it, he accedes to the terms; and that therefore this action may be sustained on the general count for demurrage. It cannot be disputed that the acceptance of the bill of lading binds the consignee to pay the freight, and any demurrage occasioned by wilfulness or neglect; but can it bind him to

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dering one consignee responsible for the default of another, for whom he does not stipulate, and over whom he has no controul. Again, before the owner can call upon the consignee to answer in damages for a nonfeasance, of what he morally could not do, he, the owner, must shew that he was ready to deliver; that the goods were in a situation to be capable of delivery at the time. This at least is a concurrent, if not a condition precedent.

The answer to this argument seems to be in substance: 1st. That between the owner of the vessel and the consignee of the goods there is no necessity for an express contract. Though there be no original privity of contract between the parties, yet the taking of the goods from the ship under the bill of lading is evidence of an agreement, in ipso tempore, to pay the freight, &c., according to the terms of the bill of lading. That the bill of lading indeed is not signed by the consignee,

but it is delivered to the shipper abroad, and by him presumed to be transmitted in due mercantile course to the consignee at home; by taking to the goods, he accedes to the terms of the bills of lading under which he takes them, and concludes the contract by executing it. Dobbin v. Thornton, 6 Esp. 16. Cock v. Taylor, 13 East, 399.

In

2. In ordinary cases, where demurrage is claimed, the question is twofold. Did the delay arise from the default of the freighter? Was it the act, or delictum, of the owner himself? But there is a middle case, that in which neither is in default; and in which the question is, which party is bound by the incidents of chance, or of any cause not within his own controul. this case (which is the present) as the loss must be sustained by one party, the inquiry is, who is to bear it? And here we must have recourse to general principles; a person who hires any chattel, whether it be a horse, a house, or a ship, may be said to detain it, if at the end of the stipulated time he does not return it to the owner. He is responsible for all incidental circumstances which may prevent him from

1815.

HARMAN

2.

GANDOLPH

and Others.

1815.

HARMAN

v.

GANDOLPH and Others.

so doing. In the present case it is totally an indifferent circumstance that the ship is a general ship; all and every one, each singly for himself, is bound to clear within the stipulated time. If any one do not clear his goods, no matter from what cause (the ship being there with them) he detains the vessel, and renders it impracticable for the owner to make use of her for other purposes. Any one, therefore, in this default, is liable for the detention of the vessel. Thus, in Randall v. Lynch, 2 Camp. 352. it was determined by Lord Ellenborough, that if by reason of the crowded state of the London Docks, a ship is detained there before she can be unloaded a longer time than is allowed for that purpose by the charter-party, the freighter is liable for this detention to the owner of the ship.

The cause of detention therefore is immaterial, if the owner be not in fault. If it be incidental, it is an incident belonging to the consignee; it is his mischief, his loss, his misfortune. It is so much longer time beyond the contract taken from the owner; and being the casualty, if not the act of the consignee, he must pay for it. Though there may be no mutuality or privity between the consignees, yet, in regard to the owner, the delay or impediment of one is effectually the same as the delay or impediment of all.

In respect to mercantile contracts, however, whatever may be the hardship in any particular case, the mischief will not be extensive; as contracts will gradually assume a form suitable to all possible contingencies.

1815.

A

BARTON . GLOVER.

June 28.

Where a

person binds

himself in an

agreement to

sum of money

breach of the

it is therein

SSUMPSIT.-Plaintiff and defendant were coach proprietors, at Croydon. On the 2d of April, 1815, they entered into an agreement, pay a certain the substance of which was, that in consideration in case of a that Barton would pay to the defendant the sum terms of it on of 175l.; 50l. to be paid in money, and the residue his part, and in bills of a month from the date of the agree- stated "that ment, the defendant would withdraw his stage tioned is to be coach from the road, and not engage or concern liquidated da himself in driving any other stage coach on the mages," Semble road from Croydon to London. The following tion upon the was the clause in the agreement on which the Jury are bound question arose :-

the sum men

considered as

that in an ac

agreement, the

to give the plaintiff the whole money; and that such

be considered

but as damages

parties.

"And for the due and punctual performance of sum is this agreement, each of the said parties to these as a penalty, presents does hereby agree to bind himself to the ascertained other of them in the sum of 500l. to be considered between the and taken as liquidated damages, or sum of money forfeited or due from the one party to the other, who shall neglect or refuse to perform his part of the agreement.

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Best, serjeant, in addressing the Jury for the plaintiff, insisted that he had a right to a verdict for the whole penalty, in case he should shew a breach of the agreement. Fletcher v. Dyche, 2 T. R. 32.

1815.

BARTON

v.

GLOVER.

The Solicitor General, contrà.-The 500l. is merely intended as a penalty. It is not because the parties use the term liquidated damages that, for every breach of the agreement however slight, the whole penalty can be exacted. Penalties can' seldom be enforced conscientiously; courts of law lean against them, and courts of equity relieve against them. He cited Astley v. Weldon, 2 B. and P. 346.

GIBBS, C. J.-There are a great many cases in which stipulated damages are contracted for, but in which neither courts of law nor equity will permit the parties to recover them. Neither of the cases cited comes up to the present. In Astley v. Weldon, there was no stipulation that the damages should be liquidated; and in that case there were several minor fines, which repudiated the idea that the whole penalty should be due for every breach. But in the present case, unless the damages are to be considered as liquidated, and definitively ascertained by the parties themselves, the clause in the agreement means nothing.

His Lordship said, he would reserve the point; but the cause was afterwards referred.

Best and Copley, serjeants, and Puller, for plaintiff.

Solicitor General, and Lens, serjeant, for defendant.

[Attornies, Holt and F. and Allen.]

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