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

Mr. Lowder (resuming) said when they found such a charter party the conclusion to be drawn from the evidence was that the word “cost” was to be construed in its primary signification of cost, and not cost, freight, and insurance. Various paragraphs, it would be seen, had been introduced in writing in the charter party and if it was intended that the cost should mean cost, freight and insurance it would have been easy enough to put in those three letters, after the word “cost,” and then it would have been in accordance with the usual custom of merchants as proved by Mr. Leopold.

If this were so then, the prime cost being 6s. per ton as stated by Mr. Walter in his evidence, the amount payable for the coal would be $32, which the plaintiff in his petition offered to deduct, — though he did not then know what the prime cost was.

If the Court held the opinion that the plaintiff should pay for the alleged shortage on the coke cargo, namely 37¼ tons, the same argument was applicable, and at 15s. per ton the total for the coke would be $186¼, and the amount by which the freight would be reduced for both coal and coke would be $218¼, as against $737 deducted by the defendants, and leaving a balance in favour of the plaintiff of $519.

The plaintiff, however, contended with regard to the coke that he had delivered the whole quantity that he had received, 549 tons 6 cwt., and that he was entitled to the freight thereon without any deduction whatever. He did not need to cite authorities — because it seemed to be admitted on the other side — to show that when lump freight was stipulated for, it was payable notwithstanding the fact that there might be a dispute as to the amount of cargo that had been delivered, and that the consignee of that cargo was relegated to his remedy by an action against the shipowner for the alleged loss he had sustained.

In this case the action had taken the form of a cross action or set-off. Now the effect of their bringing a cross action was this in respect to their claim : that it placed them in the position of plaintiffs, and as such they accepted the onus of showing affirmatively the loss which they alleged they had sustained; the onus of proof was upon them. And the question he would submit to the Court was whether or not the defendants had sustained the obligation that they had so undertaken.