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IN THE MATTER OF THE CLAIM OF THE SHIPPERS AND OF THE HONGKONG AND SHANGHAI BANK
NLR43V157
[COLONIAL COURT OF ADMIRALTY.]
1941 Present: Moseley S.P.J.
IN PRIZE-GOODS ex s.s. "MARO .Y".
In the matter of the claim of the Master and Owners of the Vessel dated August 15, 1940.
And
In the matter of the claim of the
Shippers and of the Hongkong and Shanghai Bank dated May 21, 1941.
Restraint of Princes-Goods seized as contraband-Vessel bound from Saigon to
Marseille-Chartered by French Company-Claim of owners to freight- proceeds of
sale claimed by shippers-Charter-party.
A vessel whose owners were of Greek nationality was chartered in London by a
French Company to proceed to Saigon and load a cargo of rice and from there to
proceed to Marseille via the Suez Canal and discharge the cargo there.
The vessel was accordingly loaded at Saigon and put to sea on June 7, 1941. At
that time, France was an ally, and the ship, claiming Greek nationality was
natural The vessel arrived at Colombo on June 19, and on June 21 the Master
applied to the naval authorities for clearance via Suez which was refused.
On July 5 the Master was informed by the naval authorities that if he proceeded
on the intended voyage he would be required to proceed' to a British port where
his cargo would be taken a!' contraband.
The Master, thereupon, decided on the instructions of the owners to sell the
cargo at Colombo; but on the same day the cargo was seized by the lawful
authority as contraband of war.
At the instance of the Crown a writ for the condemnation of the cargo JS good
and lawful prize was issued. The cargo was thereupon sold and realized a sum of
Rs 626,683 of which a sum of Rs. 70,000 was paid to the Master on account of
freight. The balance was in Court.
The present proceedings were instituted by way of motions, firstly by the
shippers and the Hongkong and Shanghai Bank for release to them of the proceeds
6f sale, and secondly by the owners and the Master opposing the release till the
full freight had been paid Held, that the continuation of. the voyage was
rendered impossible through the restraint of princes.
Held further', that the owners were not entitled to the full freight which would
have been due to them had the vessel reached the port of destination.
Freight to the amount of the voyage completed could only be claimed
upon an agreement, express or implied.
In the absence of such an agreement the only satisfaction which the owners and
the Master may be granted is that which may be deemed proper by a rational
application of fair and equitable considerations.
CASE
heard before the Colonial Court of Admiralty. The facts appear from the
head-note. .
E. G. P. Jayetilleke, K.C., Attorney-General (with him M. F. S. Pulle, C.C.)
instructed by John Wilson, Proctor, Agent for His Majesty's Attorney-General.
H. V. Perera, K.C. (with him E. B. Wikremanayake) instructed by Messrs. D. L. &
F. de Saram, Proctors, for the Master and Owners.
N. Nadarajah (with him E. F. N. Gratiaen) instructed by Messrs. Julius & Creasy.
Proctors, for the Shippers. ,
E. F. N. Gratiaen instructed by Messrs. Julius & C1'easy., Proctors, for the
Hongkong and Shanghai Banking Corporation. The Custodian of Enemy Property (A..
G. Ranasinha) is also present on notice. M. F. S. Pulle C.C., watches his
interests.
Cur. adv. vult.
October 29, 1941. MOSELEY S.P.J.
For the facts of this case, I have had to depend upon the averments , contained
in an affidavit sworn by the master of the" Maro Y " for the purposes of another
application and upon the documents put in by Counsel for the respective parties.
,
On April 13, 1940, Messrs. Yannoulatos Brothers, Ltd., the owners of the vessel,
entered into a charter-party with the Services Economiques Francais de Londres,
whereby the vessel was to proceed to Saigon and there load a cargo of rice of a
quantity within certain limits and to
proceed, via the Suez Canal, to Marseille and there to dis
