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

If the defendants paid a certain sum under a deduction, that did not affect their rights under the bill of lading if they cared to assert them. The whole object of the captain's contract was to provide for his freight. What they had done was, they had paid him his full lump freight and deducted what they considered their proved cost, the cost proved to them as consignees of the coal and coke, and he maintained that as a matter of account between the parties the defendants were entitled to do that in the account current — to set-off their claim against the plaintiff's claim and to pay him the balance. He submitted that the account stated could not be opened except on account of surprise or mistake and even though it could be opened he maintained the defendants still had their claim under the set-off.

Mr. Lowder, in reply, took first the question of whether the defendants were entitled to the cost freight and insurance on the 16 tons of coal, or whether they were only entitled to the prime cost. The evidence of the plaintiff was that there was an agreement entered into between him and Mr. W. B. Walter, representing the defendants, on the 8th of November, the day after he arrived here, such agreement being that he should pay an allowance of 1 per cent, on the 1,608 tons of coal, namely 16 tons, and he said he told Mr. Walter at the time that the price to be paid for those 16 tons was the Cardiff price of the coal. (Counsel here read passages from the evidence of the plaintiff on this point.)

The Judge remarked that in the face of the equally positive evidence of Mr. Walter he did not see his way to concluding that there was such an agreement.

Mr. Lowder was about to point out that where as the agreement was arrived at on the 8th December the master’s conduct when the account was presented bore out his evidence, for he immediately went to the clerk of Jardine. Matheson & Co. and pointed out the mistake.

The Judge did not doubt what was in the master's mind. He was quite satisfied that all along the plaintiff understood Cardiff price, but there was never any mutual consent.

Mr. Lowder said if such an agreement had been arrived at then the amount to be deducted from the freight would have been, at 6s. per ton for the coal, $32, but if on the other hand the agreement was not established to the satisfaction of the Court then the plaintiff was thrown back on the wording of the charter party, which provided that the plaintiff was entitled to the balance of his freight less the cost of the quantity short delivered which was agreed to be 16 tons.