'Ouaya Yarsont (plaintiff') appellant; Waxrer Movntyax and Caries Avoten Hri-MANN, trading as" Mourilyan, Heimann Ca," (defendants) respondents, The appellant was unrepresented professionally; Mr. Haxxes, barrister-at-law, appearing the respondents, This was an appeal from the provincial court of Hiogo, in a cate wherein the appellant, then plaintiff, sued the respondents, on defendants, as agents of the steamer Washi, to recover the sum of $2,369, for breach of charter-party. Mr. Consul Annesle; gave judgment at great length for the defendants, with coats, Mr. Hawwes, in opening, said the plaintiff was a Japanese who appealed against the font of the Court below, in a suit he had ought against the present respondents. He (Mr." Hannen) was placed somewhat in difficulty, in not having counsel on the other side, and his Lordship would therefore excuse him for running through matters which he would otherwise have left alone.
His Lonpsurr said if anything arose in such away, he would point it out.
Mr. Haxxex thanked his Lordship, and resumed by saying it was not an ordinary case in which a Japanese had left everything to the Court, for the plaintiff was represented by a Mr. Crutchley, who practised as an attorney though not admitted to the Courts, but who represented the plaintiff by virtue of a power of attorney. His Lordship would also observe that the respondents had: offered to carry out the terms of the charter-party, but the appellant had notice of the offer, and, down and insisted on his care that he got them, for as his Lordship would further observe, it was not a case in which a Japanese had beea put upon by English merchant, but one in which legal advice had been sought.
His Lorpsmrr, referring to the advice so taken, said he had thought more than once whether a person who was not admitted to the Courts should be allowed to conduct a case merely by power of attorney.
Mr. HaNwex said it was certainly an abuse, but it was done.
His Lonpsurr said it had been done; but he had often wished it had not been, for it was very unprofessional, and ought to be taken into consideration by the Bar.
Mr. Haxsey said in the case of a native, it was necessary for him to have somebody to act for him; but in the case of a foreigner it was different. He was glad his Lordship had adverted to the subject; and, perhaps if it were noticed by the Press, a stop mi Proceeding with his argument, Mr. Hannen mat to such a very objectionable state of things. said he should first of all contend that there had been no breach of charter-party whatever; secondly, that if there. had been breach, it was only after the action bad been brought; thirdly, that if there had been a breach before the action was brought, or at any time, it was caused by an excepted danger, such as arising from the perils of the seas, or of navigation; and, fourthly, that if there had been a breach for which the respondents were legally liable, he should contend that they were only liable for nominal damages. By the charter-party, the respondent under: took to carry cargo for the appellant in three consecutive voyages from Kobe to Yokohatna, and it would be necessary for him (appellant) to show that they had refused to perform, or had not performed, three consecutive voyages. In September, 1873, the ship had made one voyage; and at the time the action was brought, in January, 1874, the vessel was undereying repairs at Yokohama. How, then, could there have been a breach? There was no evidence given that the respondents had refused to make three voyages, and to prove a breach it was necessary to show that they had refused.
of Wheeler and Babbage; 9, Exchequer Resupport of this view, there. was the case rts, p. 678. In the present case there had action was brought because the ship did not een one voyage made to Yokohama, and the return within the time the appellant expected to make a second. There was, however, nothing about time in the charter-party. The petition was led on the 10th of December, 1873, and_ his Lordship would find in the evidence that if the ship had arrived on the 7th of that month, the action would not have been brought; but three days after that date b the petition was filed. That could not be termed an unreasonable delay, and, therefore, he contended there had been no breach. Having in view his Lordship's recent decision in the case of ""Malcolmson v. Master, &o., of Mistletoe," be need not allude to the case as to' whether there had been a breach after the petition had been filed; and he would further point out that the bringing of an action for a penalty was of its sufficient to discharge the other party to the contract. ('Pullen and Leake," 118, Precedents in Pleading.) The suing for a penalty, twasin fact equal to saying, "have done with the contract,—I go for the penalty, nothin, more. The contract is therefore void, and they can do what they like." But the respondents wrote to the appellant, saying that the ship was ready to receive his next cargo, though they did mention that they would give him 12 hours in which to decide. He (the appellant) did not avail himself of this offer, but simply sat silent, and made no reply. The conduct of the respondents was therefore very different to refusing to folfl the charter-party, and so occasion a breach. The case occupied a very long time in hearing, as several adjournments were allowed by the Court between December, 1873, and May, 1874; and during that time it was attempted to drag in a breach of the charter-party.
His Loxpsurr asked when the letter referred to was written by the respondents?
Mr. Hawes aald it was sometime in April that the letter was written.
Loxpsurp—And when did the vessel arrive at Yokohama?
Mr. Haxsex said she arrived there on February 17th, and the letter said if the repondents did' not hear from the appellant within twelve hours, they would conclude that he intended to break his contract, His Lorvsare—But that was actually after the case was part heard?
Mr. HANSEN replied in the affirmative, and then went on to say that the delay occasioned by necessary repairs to the ship could only and most unreasonably be styled a breach of the charter-party. If the respondents had not made those repairs, and anything had happened to the vessel in consequent the respondents would also have been liabi They were, therefore, placed between two fires, He relied most strongly on this portion of the case, to show there had been no breach whatever, or that at any rate it was nob before the action was brought. With respect to Malcolmson's case, the contract ceased during repairs, and the same provision came in here; and it was therefore to the benefit of the respondents to make the repairs with as be much expedition as possible. They had done so in the present case. He now came to the point as to whether the delay arose from the dangers of the seas and breakage of machinery. It had been said that there was no decision to guide the Court directly on that point. He had taken some trouble to find if there were any, and could not discover any. It was no doubt true that in some documents, perils and dangers from accidents to machinery were put in, and if they were not so included, it might be held there was no insurance against the breakage of machinery, and that when the exception was intended by the underwriters it was inserted, He, therefore, thought it was not impossible to argue that the clause in this case relating to the perils of the sea, &c., was intended to include accidents to machinery.
His Lorpsusr—You would say that supposing there was no excluding clause, n0 matter what caused the breach, the contract would be broken. There are a class of cases in which it is laid down that the peril must be cure te sone tha Oaptata to tue ara of it, Mr. HANNES said he was aware of that, but he was left simply to this—there was no case in point, and, therefore, he contended that one of the perils of sea and navigation was an accident to the machinery.
His Lonpsmp referred to a case, of the voluntary stranding of a ship, which had been argued not to be a peril of the seas.
it. HAxNEN said when a man deliberatel
not be said to be a peril of the sea; hut where turned ips head to the shore, it coul the machinery broke down during navigation, it certainly came within the meaning of the word " perils."
His Loxpsurr—But the machinery might such a state before starting on the voy-hat it would be almost certain to beale down during the voyage, Mr, HANNES said it might be argued that way; but as to the word "during," he contended that it did not mean the time between the commencement and termination of a voyage, but during the period the charter-pa was to ru if otherwise, it, woul seem as if the shipowner had not contracted for the return voyage, which was not at all likely—as for the voyage between Kobe and Yokohama, and leaving unprotected the re~ tura voyage between Yokohama and Kobe:
His Lonpsn1r—Suppose the ship had been Rischarging of cargo, the voyage being com.
tially burnt in Shanghai harbour, after
pleted, it would not' come within the exceptions.
Mr. Hawes said the next point was as to the supposition that if there had been a breach for which the respondents were legally lia the amount of damage was only a nominal one. His, Lordahip would see at page 101 of the record, the appellant was asked to give details of his damage, and that he refused to ive them—his attorney, Crutchley, advised not to give them, and accordingly he refused to do 80.
His Lorpsurp—So he sues for the penalty.
Mr. Haxwex said that was so; and his Lordship would see, in the case of "Pullen and Leake," quoted before, that the plaintiff could only recover the damage actually sustained, and that not exceeding the penalty. Tt had been over and over again proved that if the damage sustained did not amount to more than the penalty, it could be recovered. The whole tenor of the cases on the point showed that it was not to come into Court, and say, There has breach by the
Text read from the printed page and cleaned; old type leaves the occasional error.