Northern Times.
Liverpool, Merseyside, England, 1857-11-14 00:00:00

DIPORTANT TO SHIP-BROKFK3 & CHARTERER 3.

COUNTY COCRT-YEiTERDAY.

V:PJAE ELAM, ESQ., JUDGE.
IMEnSAI3. BARD, FEIN:END, AND CO. V. donw L
13,SISICLING, CAPT. CP THE SHIP JOANNA CATP.,ARINO.—In
this case, the action was brought to recever. the sum of
£37 10; 01 for commiedoe, being 5 y,er cent. on a
charter patty, effected by plaintiffs, oh the ship of which
tee defeedaet is master. Mr. Atpinall (with Mr. Hime)
waE, for the pleintiffe, and Mr. Almond for the deem-salt.
The c. se, ne will be seen, was ore interesting to ship-
brokers, owners, and cherterers. Mr. Aspinall, in stating
the case, said the plaintiffs were ship-brokers ail agents of
this town, doing a very large besinesss, and w 11 known to
the mercantile and shipping comene.tity. The defendant
was the master cf the stir, or vessel, called the Joanna
Catharine, and the action was brought to recover
the sum of £37 10s. far commiession, data to his clients for
having effieeted, at the request of the defendant, a charter
.ror his shin, for which he W 3-3 to receive 1'1750 for freight.
The defendant applied to Messrs. Bahr, Behrend and Co.,
-to effect a charter for his vessel, and they did oo ; and by
the terms of the charter, the moment it was signed the
defendant was liable by the document itself, for on the face
of it such was stated. Aeher the charter party was signed,
some ddfficrilty arose about the careteug, capacity of the
chip ; and, as it would appear, the firm of Vos, Brown and
Co. in some: ay interfered regarding that, and subsequently
the charter was cancelled. The :hip, in the first instance,
was charteeed, through the agency of the plaintfah, to
Messrs. Nnttall, Mors and Co , but after the charter was
etecelled, she was -chartered to another party by gessrs.
Toe, Brown and Co. The di scanty that arose in the first
instance was, that, after the defendant signing the charter,
it appeared that it wet alleged the vessel could not carry
hhe tonnage which the defendant guaranteed she would.
After a good deal of diffinalry, Messrs. Bahr, Behrendt
and Co., succeeded in prc curie g the cancel of
'the charter, but the defendant then, instead
-of -employing them to effect another charter, pro-
ceeded to Messr Vos, Brown, and Co., who chartered
the vessel to another party altogether from the first. Now,
'in this instance, the defendant had no grounds whatever
'for being dissatisfied with the plaintiffs, but on the con-
trary, ought to feel very much obliged to them for having
relieved him from the obligation to which he had bound
'himself ; but in their successful efforts to relieve the
defendant, they by no means gave up the commission to
which they were justly entitled for having done the
business before. When the charter was signed, that
moment, according to it, -the commission was due. The
captain goes to another person, and effects a new charter,
through Messrs. Vos, Brown, and Co. It ho had done
so through the plaintiffs they might, through favour alone,
have made some allowance out of the first commission.
"They did not insist on the defendant getting them to
arrange the second charter, but they insisted, rightly and
lawfully, that he should pay for the business done
for him in the first case, as there was no
waiver whatever of the commission in that instance,
and they .slid not even charge for the great amount of
trouble they had in cancelling the first charter. It did
not make any difference to the plaintiff.; what doubt was
created by the defendant, after he had signed the guarantee
of the ship's carrying capacity, whether she was able to
-carry the tonnage set down to her or not. The defendant
had entered into an agreement to pay, and nothing but
payment or satisfaction for it could be taken as an excuse
If the second charter had been made through the plaintiffs,
the defendant might have some excuse for asking for a
reduction of the charge for the first, and no doubt he would
have been allowed something, but he did nothing of the
sort; and now, because the plaintiffs had acted kindly
towards him by getting the fiat charter cancelled, he
refuses to pay them their just and honest demand. He
(Mr. Aspinadl) would call Mr. Behrend, one cf the firm,
and also Mr. More, who would tell the history of the case,
and show that although the charter was cancelled in the
first instance, there was no relinquishing of the commission,
which was honestly and fairly due to his clients. Ile then
called Mr. David Behrend, who said he was one of
the firm of Bahr, Behrend and Co , ship brokers
and agents, of Liverpool. He remembered the
defendant applying to him to obtain a charter for the ship
-"Joanna Catharieo." This is the charter party
.(docu-
ment handed in) negociatod the charter, and it was
executed by the party and the Captain. The commission
was 5 per cent. on £750, and amounted to £37 10s. 05
The charter was affected according to his instructions and
representations about the ship. Previous to the charter
being effected, no one, to his knowledge, interfered in the
matter; after the conclusion of the charter, Vos, Brown,
and Co., interfered about it, and in consequence of that in-
terference, there was a disagreement between the char-
terers and the captain, as it was alleged that the ship was
not capable of carrying what the captain represented her
in the charter that he signed Some days discussion took
place, and although Messrs. Nuttall, Mors, & Co. did not
exactly agree to cancel the charter—the captain having
applied several times to get it cancelled—yet, ultimately
he (witness) did get it cancelled. Mr. Aspinall: Was
there one word said about your relinquishieg the your
commission ? Certainly not a single word, for I would
not relinquish it, and never did. I never made any agree-
ment whatever about cancelling the commissin, and it
was after a good deal of trouble I succeeded in getiing the
charter cancelled by Messrs. Nuttall, Mors, & Co. I never
told the Captain that I would cancel the commission, but
alwahs held him liable. Ile got the ship chartered a
second time by Messrs. Vos, Brown, and Co., although
the Captain told me, he would not get any one else, save me,
to charter the ship for him. Cross-examined by Mr.
Almond : The vessel I believe was consigned to Vos,
Brown, and Co , but on some previous voyages she was
consigned to us. • The amount of freight to be paid on the
charter was £750, and part was to be paid here before
the ship sailed, and the charterers were to pay all the
freight, and I was not to bear any proportion of it what-
ever. The charter was written out by a clerk in the
office, and the Captain signed it in my presence, The
Captain was informed by Messrs. Nuttall, More, and Co.,
that the vessel was to carry 425 tons dead weight,
according to the charter that he had signed. I did not
know that the Captain was the master for that voyage
only, but on previous voyages he was not the master.
Previous to the arrival of the ship we had a correspond-
ence with the owner, but he applied to us in the first
instance and not we to him. After the charter was
complete, Mr. Mors mentioned to the captain that he
would require him to satisfy him that she would carry
425 tons of dead weight ; the captain did not tell
us that the owner repudiated her carrying 425 tons, but
Mr. Mors told the captain if she was deficient in what he
• had signed the charter for, he would held him (the cap-
tain) responsible for it. His Honor asked where the
owner was ? and the reply was a In Holland ;" and, in
answer to another question, the Court was informed that
the captain was told if the vessel was deficient in what ho
had guaranteed, he would be made pay the difference. The
witness in answer to Mr. Almond, said, there was a copy
of the charter at one sent to the owner of the ship, so
that he must have known what the contract was for. It
was a week or 10 days after the captain had sigaccl the
charter, that ho said there was any difficulty with the
owner. The witness was handed a memorandum which
he sent the captain after the difficulty about the ship's
caerytng capacity arose, in which he promised to get the
charter cancelled, but there was nothing in it foregoing
his claim to the conomiesion ; on the contrary, the witness
Bait], he told the captain, all through, that he must gat
his commis ion. The vessel was subsequently chartered
for Rio, and witness offered the same turn, from another
party, that the captain had got from Messrs. Vos, Brown.
aid Co. Here His Honor intimated that the
ease should have been settled out of court, and suggested
that now an arrangement might be made, under all the
circumstances of the case, but the defendant's legal advise,.
said he was instructed to proceed, and take the verdict of
the court.---Mr. L. D. More, one of the firm of Nuttall.
Mors, and Co., merchants, was than examined at some
length, the chief part of his evidence bearing on the ques-
tion at issue was as follows. His firm chartered the vessel
through Messrs. Bah; Behrend, and Co., and the latter
told him the ship would carry from four hundred to four
hundred and twenty-five ton dead weight, as the captain
had guaranteed to him (Mr. Behrend) that she would do
so. The captain wad present at that statement, and witness
expressed some doubt about it to the captain, to whom he
spoke both in English and German (the latter the car ain'e
own language), bat the captain stated, before he left the
office, that she would carry 425 tens, and witness said, in
that ease he would pay him £750 freight ; and again,
before he left the office, he repeated the same to him in
German and English, so there could be no mistake
about it, and witness left under the impressiou
that she would carry 425 tons, not from what he
heard from Mr. Behrend, but from the captain,
end he told him he would hold him responsible.
That was in the morning, and the chewer party was signal
then. In the course of the day, Mr. Vos came to him,
and he (witness) told him of the transaction, and he was
informed then that the vessel would carry only 300 tons
weight and measurement, and of coarse she could not
carry 4e-'5. Witness told him that the captain had assu'ed
him that she would do so, and then he told Mr. Behrend,
he must satisfy himself, and he said, " I might satisfy
myself on that point." Witness said he felt satisfied she
could not carry 425 tons, and then said he would not
cancel the charter unless he got a proportionate share of
the profits that would have resulted to him if the vessel
carried according to the captain's guarantee. After fire
or six day's discussion about the cancelling of the charter,
witness did not agree, nor, in fact, never agreed to cancel
it, but Mr. Behrend asked him if he (Mr. B.) would