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

The two points decided in that case were: that a clause in a charter-party, worded as the one now under consideration is, gives the cargo-owner the right to retain out of the balance of unpaid freight the cost of cargo short-delivered, even though the loss has arisen from perils excepted in the charter-party;

and (2) that when the loss has happened from an excepted peril, the cargo-owner cannot recover on a claim for damages.

In dealing with the latter point, and after the first point had been decided in favour of the cargo-owners, all the learned Judges agreed that the main and most important question that they had to decide in regard to this point, was whether the case came within the excepted perils.

Now how could that question be important unless, but for the case falling within the excepted perils, a counter-claim for damages would lie?

We think we need say no more on this point, and will only add that we concur entirely in the view of the case taken by the learned Judge of the Court below.

The appeal must be dismissed with costs.