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

Mr. Walford went on to say that the defendants had no means of checking the draught of water as taken in Yokohama. What the master had contracted to do, however, was to bring the whole cargo to Yokohama and deliver it to the defendants; and that had not been done. He had to pass all that cargo through the scales at a certain weight, and that he had failed to do. The defendants were not concerned to enquire what had become of that coke and coal; all that they were concerned to know was that the whole of the coke had not passed through their scales.

It was weighed in the customary manner; no objection to the weighing was ever made by the captain and he was therefore bound by it. He had two men tallying and the chief mate superintended the work, but none of those men had been called on the other side. For the defendants, however, three weighers had been called, whose evidence was eminently satisfactory. So much for the defence proper.

Coming now to the set-off, he pointed out that previous to the Judicature Act and the rules under it this set off would not have been allowed in an action for freight, and it had been contended in the Court at Shanghai that even now it could not be pleaded in this Court.

Mr. Lowder said he was not raising that point.

Mr. Walford said it was of importance to remember that under the old law, this defence could not have been raised because it led to some apparent confusion in connection with the question of freight. Under the law as it previously existed no claim could be made in respect of damages for short delivery, and the law as laid down in the books was that the master was entitled to his full freight.

But that took no account of the cross action for damage for which he was formerly liable, and which was now incorporated in the defence as a set off. Citing Wood’s “Interpretations of Mercantile Agreements,” page 160, to show the confusion which seemed to exist, counsel went on to say that under the bill of lading the defendants were entitled to the market value of the coke short delivered.