TATE & LYLE, LTD. v. HAIN STEAMSHIP COMPANY, LTD.

(1936) 55 Ll.L.Rep. 159

HOUSE OF LORDS.

Before Lord Atkin, Lord Tomlin,* Lord Thankerton, Lord Macmillan and Lord Wright.

Bill of lading-Deviation-General average -Freight-Claim by plaintiff indorsees to recover deposit made under Lloyd's average bond-Sale of sugar to plaintiffs -Charter by sellers of defendants' vessel Tregenna-Vessel to "proceed to Cuba and there load . . . at one or two safe ports on the south side and at one safe port on the south side of San Domingo as ordered and/or at customary outside anchorage at charterers' option. . . ."-Incorporation in bill of lading of charter-party terms and conditions -Vessel instructed by ship's agents in accordance with sellers' request to proceed to Casilda as first loading port-Following sellers' further request, night letter telegram sent by ship's agents ordering captain to proceed to Santiago and to San Pedro (San Domingo)-No telegraph beyond Trinidad (Cuba)-Message not delivered owing to an alleged default of the postal authorities in Cuba-Vessel proceeds to Santiago from Casilda in accordance with sellers' agents' instructions -Failure to call at San Pedro- Vessel recalled to San Pedro upon discovery of mistake-Further cargo loaded -Grounding of vessel on leaving San Pedro, general average expenses being incurred by shipowners-Cargo transhipped by shipowners and carried to its contract destination by another vessel-Delivery made to plaintiffs upon their signing Lloyd's average bond-Contention by plaintiffs that by reason of the deviation they were freed from any obligation under the bond in respect of the Cuban shipments- Counterclaim by defendants for declaration that plaintiffs were liable in general average in respect of the whole cargo and for balance of freight (or on a quantum meruit) in respect of the Cuban shipments-Alleged waiver of deviation by charterers-Freight payable by charterers in New York upon notice of safe delivery, &c.-Liability of indorsees of bills of lading-Agreement by defendants under bond to deliver cargo "on payment of the freight payable on delivery if any."