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

The Judge remarked that the method of weighing must have been in contemplation by both parties.

Mr. Lowder submitted that the defendants had not proved affirmatively the loss of 37¼ tons, and that the coke delivered out of the vessel was exactly the same coke, and the same quantity of it that was taken in at Penarth Dock. The plaintiff was therefore entitled to the whole of the freight upon the coke, and the defendants had no right in law to deduct what they claimed to deduct.

As to the law in the case, counsel cited Scrutton on “Charter-parties and bills of lading,” p.p. 234-3; Taylor on Evidence, Section 819, Greenleaf on Evidence, Section 212, and Roscoe's Digest of the Law of Evidence, 14 ed. page 64, and asked the Court to believe that the plaintiff when he said he would pay for the 37¼ tons of coke provided the freight and insurance were deducted was simply actuated by a desire to buy peace in order to prevent litigation.

On the argument that the clause as to cost being introduced for the benefit of the plaintiff should be construed against him, he contended that the stipulation was introduced for the benefit of the defendants themselves.

The Judge asked what would happen if there had been no stipulation ? Would not the master be liable under the bills of lading?

Mr. Lowder said yes.

The Judge asked to what extent, - the whole market value in Yokohama ?

Mr. Lowder submitted that the clause was not introduced for the purpose of limiting the master’s liability under the common law. It was a mutual stipulation that in the event of loss the amount payable should be the cost as compared with what would have happened but for this clause in the charter party. Taking the document as it stood he maintained that the stipulation was in favour of the charterers and not of the shipowner, and therefore the word “cost” must be strongly construed against the charterers and should have its primary signification.

Judgment was reserved.