GANDHA KORLIAH Vs. JANOO HASSAN

JUDGEMENT

(1.) This case raises a point of some interest that has been much discussed in the English Courts and has very recently been the subject of a decision by Mr. Justice MacLeod, as he then was, sitting in the High Court of Bombay. Boggiano and Co. V/s. The Arab Steamers Co. Ltd. (1915) ILR 40 B 529. It is not disputed by the appellant that if Mr. Justice Macleod's judgment is correct he is out pf Court. The defendant was the owner of two steamers which were chartered by the plaintiff for the carriage of rice from Akyab to the Coromandel Coast. The importation of rice was only permitted--and Mr. Justice Waller, the Trial Judge, has very rightly found that this was a fact perfectly within the knowledge of the parties--if and when a certificate could be obtained from the Food Comptroller. The learned Judge has also rightly found--and this part of his judgment is not challenged--that neither party to the contract committed himself to a guarantee that such a certificate would be forthcoming. As to that no question arises and the learned Judge therefore thinks that the execution of the contract became impossible owing to an act which is neither under the control of the parties nor which they had put themselves in the position of having warranted to be in existence, namely, the certificate. In these circumstances the shipper says that he is entitled to be paid back certain moneys which he had paid to the shipowner and these moneys are described in the contract as being paid for freight at the rate provided for in the charterparty. 1. Rs. 450 only advance on acceptance of charterparty and to be deducted from the freight of second trip.

(2.) Half of the freight to be paid as the vessel reaches Akyab and takes the cargo.

(3.) The balance freight to be paid as the vessel reaches the port of destination.