Henderson & Co., Ltd v. Turnbull & Co. [1909] ScotLR 310 (23 January 1909)

Henderson & Co., Ltd v. Turnbull & Co. [1909] ScotLR 310 (23 January 1909)

The defenders were not responsible for the short shipment as they acted on the delivery order and received the proper number of bags according to custom. The pursuers were not entitled to repayment of freight, as the contract required them to supply a definite amount and pay definite freight. Even if repayment were due, the defenders' claim for dead freight was liquid and could be set off, as the calculation was ascertainable once the shortage was established. No relevant grounds for condictio indebiti were proved.

Citation
[1909] ScotLR 310
Parties
Pursuer: Henderson & Company, Limited; Defender: Turnbull & Company
Jurisdiction
Scotland
Judgment Date
23 January 1909
Procedural Posture
Shipping Contract Dispute / Appeal From Sheriff Court to Court of Session Inner House
Outcome
Defenders assoilzied (absolved) from all conclusions of the summons.
Legal Topics
Freight, Dead Freight, Condictio Indebiti, Set Off, Liquid and Illiquid Claims
Shipping Law Contract Law Freight Dead Freight Condictio Indebiti Set Off Liquid and Illiquid Claims

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Henderson & Company, Limited

Pursuer

Turnbull & Company

Defender

Procedural Posture

Shipping Contract Dispute / Appeal From Sheriff Court to Court of Session Inner House

Legal Issues

  1. 1 Whether the shipowner is liable for repayment of freight paid on cargo short shipped
  2. 2 Whether the shipowner is entitled to set off a claim for dead freight against the pursuer's claim
  3. 3 Whether the claim for dead freight is liquid or illiquid and can be set off

Ratio Decidendi

The defenders were not responsible for the short shipment as they acted on the delivery order and received the proper number of bags according to custom. The pursuers were not entitled to repayment of freight, as the contract required them to supply a definite amount and pay definite freight. Even if repayment were due, the defenders' claim for dead freight was liquid and could be set off, as the calculation was ascertainable once the shortage was established. No relevant grounds for condictio indebiti were proved.

Court Disposition

Defenders assoilzied (absolved) from all conclusions of the summons.

Orders

  • Defenders not liable for value of shortage of cargo.
  • Defenders entitled to set off claim for dead freight against claim for freight on shortage.