Volume Eleven - Pre-Victorian to the Present Day - some more aspects - A Dispute at Yokohama -  1889 . . .

Re-examined — I object to the item in account “D” by which I am charged $560.24 for short delivery of coke. I never agreed to pay anything for 37¼ tons coke, but to avoid litigation I was willing to pay prime cost of this.

To the Court - The coke was weighed by two men from Jardine, Matheson & Co., two Chinese, and two men deputed by me. The mate also superintended the weighing. Coke should lose no weight on the voyage. When I took the draft of the ship here the water was not "so smooth as in Cardiff dock, but I could tell to an inch. I only looked aft. We were in the same trim as loaded, that is on an even keel. The difference of draft for 37 tons would be under 2 inches. While coke was being discharged the hatches were sealed every night by the Customs, and no complaint was made of seals being disturbed.

Mr. Walford to-day said this action was brought by the master of the Brynhilda to recover the balance of freight which he alleged to be due to him, and the defendants pleaded alternatively that they put in a defence which was based partly on account stated between them and the plaintiff, and partly upon a construction of the charter party and upon that defence they said they were under no liability to the plaintiff. Further than that, and alternatively, they set off their claim for damages for non-delivery of a portion of the cargo under the bills of lading. The first was a defence; the second was quite distinct from the defence and was a set-off.

On the defence his first point was that there had been an account stated between the defendants and the plaintiff in which every point had been settled excepting the construction of the word “cost” in the charter party. The evidence showed, and the master himself admitted, that when this account current was presented to him he accepted every item as correct with the exception of charges for freight and insurance included in the cost of coal and coke; that was to say he could no longer argue that the coke was delivered short or that he was under no liability for it.

He was estopped from arguing any of those points. The only question was the question of his liability, having regard to the word costs; the mere raising of an objection to those two items, without raising any objection to any other item, rendered it an account stated between the parties.