134. Dakin v Oxley 15CB (NS) 647 (1864)

Freight – whether charterers entitled to abandon cargo to escape liability for freight

The facts

Coal was shipped from Newport to Nassau.

The charterers’ pleaded that they were entitled to abandon the cargo to the ship owners and by so doing escape liability for freight. They based their entitlement upon a claim that damage was caused to the cargo by the fault of the servants of the ship owners.

The ship owners demurred.

Findings

The Court of Common Pleas (Erle CJ and Willes, Williams and Keating JJ – judgement by Willes J) upheld the demurrer.

Willes J examined the law on the continent and the USA.

He determined that the law on the continent was that freight was forfeited by fault only where the goods had become worthless.

In the United States of America the law was that freight was considered earned but that set-off was allowed where damage was due to the fault of the ship owner.

He stated that the Law of England was that freight was earned where the goods were delivered in specie (i.e. in a recognisable state).

The test was said to be whether the service of carriage of the goods was substantially performed. According to this principle, no freight would be earned if goods were delivered, for instance, to the incorrect port.

On the principles stated, the plea was held to bad and judgement was given for the ship owners.

Commentary

Referring to five authorities, Willes J stated that no set-off was allowed against freight for a damages claim when the cargo arrived in specie and that such a claim needed to be brought in a separate “cross action”.

There is extensive reference to the civil law in this case heard in a Common Law court.

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