Scottish Court of Session Decisions

These are conjoined actions, in which the pursuers of the one, Maclean & Hope, sue the defender Fleming, owner of the ship ‘“Persian,” for the value of a quantity of bones. The case arises out of the following circumstances:—On 17th November 1864, Samuel Donaldson, master of the ship “Persian,” belonging to Fleming, entered at Constantinople into a charter-party with Alexander Curmusi of that place. It was agreed by the charter-party that the ship should proceed to certain ports therein specified, and should load a full and complete cargo of cattle bones in bulk, to be carried on behalf of the charterer to a port in the United Kingdom—freight to be paid for the same at the rate of 35s. per ton of 20 cwt. of bones. The ship proceeded to these ports and loaded the bones, and then arrived in Aberdeen with 386 tons, 18 cwt., which were delivered to the pursuers sueing under the charter-party, which was transferred to them. Maclean & Hope, in the action at their instance, say that the quantity of bones was not delivered to them that was in point of fact shipped at the several ports. The Lord Ordinary ( Kinloch), on advising a very long proof taken in the case, held that the pursuers had failed to prove that any greater quantity was shipped than was delivered to them. His Lordship also held that the ship could have carried a further quantity of 210 tons. His Lordship accordingly assoilzied the defender. In the action at the instance of Fleming, he concludes for £377, 1s. 6d., under deduction of a sum of £300 paid to account, as the freight due on the bones carried and delivered to Maclean & Hope. He also claims £367, 10s. as the amount of freight on 210 tons of bones which would have been further yielded by the vessel if filled with a complete cargo in terms of the charter-party. The Lord Ordinary decerned for the pursuers in this action.

His Lordship added the following note to his interlocutor:—

“ Note.—The leading question between the parties arises in the action at the instance of Messrs Maclean and Hope. In order to success in that action, it appears to the Lord Ordinary necessary that it should be proved, or assumed, that a certain quantity of bones was shipped on board the defender's vessel, the “Persian,” for carriage on behalf of the pursuers, and that less than the quantity so shipped was delivered or tendered at the port of discharge. The action is in substance an action of reparation on account of the non-delivery of the alleged deficient quantity.

In such an action the onus of proof lies on the pursuer; and it appears to the Lord Ordinary, on a consideration of the whole evidence, that the pursuers in the present instance have failed to establish their case. It is expressly deponed to by the captain of the vessel, and by both the first and second

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mates, that they brought home and delivered the whole bones which were shipped. And there has no reasonable account been given of the way in which the bones were abstracted after being shipped, supposing such to have been the fact. The evidence which, on the other hand, was led by the pursuers, appears to the Lord Ordinary to fall far short of what was necessary to prove the amount shipped to have been what is stated. Mr Edgar Whitaker, who was seller or shipping agent of the bones (it is not quite clear what character he held), depones that he can state nothing on the subject of his own personal knowledge, having left the whole matter to his clerks. Mr David S. Ogilvie, who was agent at Gallipoli for Whitaker & Company, was only connected with the shipment at Enos, as to which he says—‘E. Whitaker & Company being in difficulties, I took up the contract at their request;’ but he also was not personally concerned in the shipment, which was effected by his agent at Enos; and his evidence is only remarkable for its extreme exhibition of negatives. Casimir Alexich and Nicoli Sklero, clerks of Whitaker & Company, were respectively concerned in shipping the bones—the one at Ounich and Kerrasounda, the other at Redosto, three of the five ports of shipment. But on the subject of quantity their evidence is unsatisfactory. The first of these witnesses says—‘At Ounich we sometimes weighed the bones and sometimes not, on account of the bad weather at that time;’ — adding afterwards, ‘I nevertheless did make an approximate calculation of the weight of the bones from the baskets already weighed.’ The second of the witnesses, when asked, How was the quantity ascertained?—answers, *The bones were weighed by the Turkish Custom-house,’ without testifying to any check on his part. In the case of neither of these witnesses is it possible to deduce, with any reliance, a specific and determined quantity of bones as that of either of the partial shipments to which they speak. The pursuers referred largely to the entries in the log-book of the ship; but these also come far short of exact and specific proof. To speak of so many lighters of bones being brought to the vessel is of little moment, unless the quantity contained in each lighter is established; and so little certain evidence is there on this head, that one witness (Askin) estimates the lighters at Enos (from the lighterman's language on his fingers, all else being literally Greek to him) at twenty to twenty-five tons each; another (Pardew) states the same lighters as one to seven tons at most, and only one or two of the last-mentioned size; ‘the others ran a ton and one and a half-ton. ’ As to such a specific entry in the log-book as ‘198 cantars 7 okes of bones,’ its value is considerably diminished when the mate, who kept the log-book, says concerning it, ‘I got both the figures and the names of the weighty from the Greek before mentioned; I did not myself understand what they meant.’

The pursuers, at the outset of the case, mainly relied on the terms of the bills of lading signed by the captain, which acknowledged so many ‘kintals’ of bones as shipped at the respective ports, but were subscribed under the express declaration, ‘weight and quality unknown,’ or, in the major number of instances, ‘weight, quality, and contents unknown.’ The pursuers coupled this reference to the bills of lading with a reference to the terms of the Act 18 and 19 Vict., cap. 111, which declares that ‘every bill of lading in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of that shipment as against the master or other person signing the same.’ The pursuers pushed this argument so far as to maintain that these bills of lading formed conclusive evidence against the defender, the shipowner. At the debate on the proof this argument was not repeated. After the judgment and opinions in the recent case of Maclean & Hope v. Munk, 14th June 1867, 5 M., 893, the argument was hopeless. It was ruled in that case, in terms of the rubric, that ‘the master of a ship, by signing a bill of lading, does not bind the owner for a greater quantity of goods than is actually shipped.’ The principle, of course, holds fortiori where the bill of lading is signed under a declaration of ‘weight and contents unknown.’ The bill of lading signed by the master, more especially taken in connection with the master's evidence, may rightly be held an item of proof in the question of fact, What was the amount or quantity actually shipped? But its value as such will, of course, vary with the circumstances. When the evidence of Mr Whitaker is viewed in combination with that of the master, it is plain that the bills of lading in the present case were, wholly or partially, prepared for the master in the ofiice of Whitaker, and were signed by him without any inquiry, and, as he says himself, without his even knowing what the phrase ‘kintal’ meant.

There is left, undoubtedly, an unpleasant mystery as to the great deficiency of the bones received by the pursuers, as compared with the quantity set forth in the invoices sent to them by Messrs Whitaker, and for which they had to a large if not the whole extent, accepted bills by anticipation. But this can be no reason for charging the defender with bones not received by his vessel for carriage to Great Britain. Such a charge could only he sustained by clear and conclusive proof that the bones had been actually put on board; and it appears to the Lord Ordinary that such proof has not been adduced by the pursuers.

The action at the instance of Messrs Maclean and Hope being disposed of in favour of the defender, it appears to the Lord Ordinary that the defender must be found entitled in his own action to the full freight due for the bones delivered; and also to dead freight on the amount of tonnage which was left unoccupied, contrary to the stipulation in the charter-party, which expressly provided that a full and complete cargo should be shipped. The Lord Ordinary is of opinion that the defender has not sufficiently cleared the small sum of demurrage claimed by him. The other claims originally set forth by him he some time ago abandoned.”

Maclean & Hope reclaimed.