Italian State Railways v Mavrogordatos and Anor
[1919] 2 K.B. 305[1917 I. 139.]
(Judgment by: A.T. Lawrence J)
Between: Italian State Railways
And: Mavrogordatos and Anor
Judges:
Bankes LJ
Duke LJ
A.T. Lawrence J
Subject References:
SHIP
CHARTERPARTY
Hire payable in Advance
Default in Payment
Withdrawal of Ship
Redelivery
Apportionment of Freight
Judgment date: 20 March 1919
Judgment by:
A.T. Lawrence J
I agree with Mr. MacKinnon's argument that it is impossible to construe the word "redelivery" in this charterparty in a literal sense. This is not a contract of demise. It is an ordinary contract whereby the possession of the ship remains in the shipowner. The services of the ship, master, and crew were let to the charterers who could never do more by way of redelivery than restore or give up those services to the owner. Here the owner himself intervened and, exercising his right upon non-payment of a month's hire in advance, withdrew the vessel from the service of the charterers, who could no longer restore that which had already been resumed. It is said that this left unaffected a cause of action in respect of the month's hire. I think in one sense it did. There was a vested cause of action. But to my mind it was not an action of debt but one for damages for breach of a promise to pay hire, the consideration for which was not executed. Therefore the shipowner can recover the damages he has actually suffered, but no more; and as he resumed control on January 11 he cannot claim in respect of hire after that date. It is not a case of debt for an apportioned part of the month's hire, or upon a partial failure of consideration, but rather a question of the true measure of damages sustained by the shipowner through non-performance of the charterers' promise to pay a month's hire in advance on January 10.
For these reasons I agree that the appeal should be dismissed.
Appeal dismissed.
- Solicitors for appellants: Constant & Constant.
- Solicitors for respondent: Williamson, Hill & Co., for Ingledew & Sons, Cardiff.