TURNER, MORRISON AND ORS Vs. RALLI AND MAVROJANI

JUDGEMENT

(1.) The facts of this case are not very accurately found. There is no express finding as to what the contract really was. In the case, as originally stated, it was stated that the copy of the shipping order (Exhibit A) was put in and proved. In another part of the case, the learned Judge says:--

(2.) It is clear, however, that Exhibit A was a mere shipping order, a direction from the ship's agents, Turner, Morrison and Co., to the Commanding Officer of the ship, requesting him to receive on board certain goods at a certain rate of freight. It was not signed by the defendants, nor did it express any obligation on their part to do any thing; it was clearly, therefore, not a contract. In the subsequent statement made by the learned Judge, and which must be taken as part of the case, his meaning is, we think, sufficiently explained. He there says:-- "The shipping order was put in by the plaintiffs, and accepted by defendants as representing the contract itself." We, therefore, understand the learned Judge to mean that the shipping order represented the terms of the contract which had been entered into between the parties; and in the order we find that the ship was loading for London; that certain goods were to be put on board, to be carried at a certain rate of freight; and that there was no express representation or warranty as to the state of the ship. The question then is, whether there was an implied condition of seaworthiness, the breach of which justified the defendants in refusing to put their goods on board according to the terms of the contract.

(3.) The Judge finds merely that the ship was unseaworthy at the time of sailing. But it is clear that the unseaworthiness of the ship, at the time of sailing, did not amount to a breach of a condition precedent, which justified the defendants in refusing to put their goods on board; for it is evident that the goods ought to have been put on board, if at all, before the ship sailed. The learned Judge has not stated whether the unseaworthiness existed at the time when the defendants ought to have put their goods on board according to their contract. "We are disposed to think that the Judge really intended to find that the ship was unseaworthy at the time that the goods ought to have been put on board, and that he has fallen into a mistake as to the time at which he intended to find unseaworthiness, in consequence of his not adverting to the fact that this suit was brought for a breach of contract in failing to ship, and not on a policy of insurance, with regard to which the time of sailing is the time at which the risk commences, and is consequently the time at which it is material to consider whether the ship was seaworthy or not.