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

Then the appellants contend that no market value of the coal and coke was proved. It appears, however, that evidence was given of the selling price of coke being $23.50 per ton, and that of coal $14.40 per ton, each of these rates being largely in excess of the Laid-down cost to the defendants of the coal at Yokohama, and it is to be observed that the amount for which judgment was given on the counter-claim was only the cost of the goods at the port of shipment plus the charges for freight and insurance paid upon them. It would seem therefore that the learned Judge had amply sufficient grounds for concluding that the defendants had suffered loss at least to the amount of the judgment. As regards, then, the facts of the case, we agree with the Court below.

The appellant next submits that the judgment of the Court below is bad in law, because, even assuming that there was a short delivery of the goods in question, and that their value was properly estimated, the respondents were nevertheless bound by the terms of the charter-party as the controlling contract and could therefore recover no more than the cost price of the cargo at the port of shipment. He argues in effect that the parties having agreed to permit the cargo owners to deduct the cost of any cargo delivered short of the quantity stated in the bills of lading, the sum so to be deducted must be taken to be the measure of damages agreed upon between the parties in any case of short delivery, and that the word "cost" means cost at the port of shipment.

We agree that "cost" in the charter-party means cost at the port of shipment, but we do not think that the defendants are thereby precluded from recovering on their counter-claim. If they were so, the plaintiff would, inasmuch as his freight is a lump freight, be in effect recovering, in respect of cargo which he had not delivered, a sum largely in excess of that which he proposes to allow to the defendants, for while the prime cost of the coal and coke was respectively 5s 7½d and 15s per ton, the laid-down cost at Yokohama was 5s and 47s 7d respectively. This would be manifestly unreasonable, and we think that the defendant must therefore succeed on the counter-claim.

The case of the Sailing ship Gardston Co. v. Hickie Borman & Co., (L.R., 18 Q.B.D., 17), relied upon by the learned counsel for the appellants, is in our opinion no authority against this view.